0120070702_Kessel
03-19-2009
Stojanka Kessel, Complainant, v. Otto Wolff, Acting Secretary, Department of Commerce, Agency.
Stojanka Kessel,
Complainant,
v.
Otto Wolff,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120070702
Hearing No. 260200500200X
Agency No. 045500229
DECISION
On November 16, 2006, complainant filed an appeal from the agency's
October 18, 2006 final order concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission MODIFIES the agency's final
order.
BACKGROUND
At all times relevant to this complaint, complainant worked in the
International Trade Administration unit of the agency as an International
Trade Specialist, GS-11, at the U.S. Export Assistance Center in
Milwaukee, Wisconsin.
As established in the record, since 1995, complainant has informed her
second line supervisor (S2), the Network Director of the Midwest Region,
on numerous occasions that she felt she was being discriminated against
because of her sex by her first line supervisor (S1), the Director of
the U.S. Export Assistance Center. On one occasion, complainant alleged
that S1 demeaned her by saying she was a "female without an education,"
and that if she applied for a promotion she would be out of a job.
Further, complainant alleged that S1 made comments about uneducated women
every time she had a performance review. Complainant also testified
that the supervisor often told her she was not good enough and was a
"stupid woman."
In February 2002, complainant was awarded a plaque in recognition of
her accomplishments, and she displayed the award on the wall inside her
office. When S1 saw the award, he came into her office and purposely
knocked the award off the wall and told her that she did not have his
permission to place the award on the wall. Complainant reported this to
S2, but nothing was done. Complainant asserted that S1 was more hostile
towards her whenever her hard work was acknowledged.
In March 2002, complainant's coworker (C1) began working for the agency.
C1 testified that on her first day of work, S1 approached her and told her
not to talk to complainant and made negative comments about complainant.
Complainant reported this to S2, but S2 testified that she did not
respond to complainant's complaint.
In February 2003, S1 told complainant not to interact with anyone in
the office. S1 denied this statement, but was determined not to be a
credible witness, as discussed further, infra.
In March 2003, another coworker (C2) began working for the agency.
C2 also testified that on her first day of work, S1 told her he did
not want her talking to complainant. C2 also remembered that S1 made
negative remarks about complainant's work performance and work ethic,
despite the fact that complainant had never received an unsatisfactory
performance appraisal. Subsequently, S1 inaccurately told complainant
that no one wanted to work with her. This was also reported to S2,
who again failed to respond.
In July 2003, complainant became eligible for a career-ladder promotion
to GS-12. The record establishes that complainant's performance reviews
were better than most of her male coworkers, including those who were
granted promotions. In August 2004, complainant asked S1 and S2 why
she was not being promoted. S1 and S2 claimed that her promotion was
delayed because of performance deficiencies. Complainant was never
informed of any deficiencies prior to her request.
In September 2004, complainant's export successes1 relating to the
Emerging Markets program were delayed. S1 testified that they were
delayed because he had not previously reviewed her earlier drafts.
Complainant also alleges that she was discriminated against in the
distribution of cash awards. The agency produced documentation that
suggested that complainant in fact received more cash awards than
most of her coworkers. Further, complainant alleged that she was
discriminated against when she was denied credit hours. The agency
provided documentation that demonstrated that she was granted the most
credit hours out of any employee in the office.
Complainant alleges that male coworkers, and even a male intern, were
assigned to the most lucrative industrial areas, while she was always
assigned to rural areas. S1 stated that complainant was assigned rural
areas because she specifically requested rural areas, and admits that
he once denied her request to work in an industrial area.
Other coworkers reported that S1 made many negative remarks about women
and to women, including "Wives should not work," and "What, did your nail
fall off?" Further, many coworkers testified that S1 treated complainant
more harshly than other employees, and some even tried to intervene on
complainant's behalf with S2. S2 acknowledged that she received the
complaints, but did nothing in response. Additionally, S2 confided in
a coworker that she thought S1 was a chauvinist. Despite her personal
beliefs, S2 continued to fail to act.
On September 15, 2004, complainant sought the assistance of an EEO
Counselor. Both S1 and S2 were aware that complainant contacted the
EEO Counselor. That same month, S2 denied some of complainant's export
successes. S2 first told complainant that she was lying and there were
no sales, and then later told complainant in writing that the export
successes were denied because she failed to show a "demonstrable link."
However, S2 later changed her reasoning again when she testified that
the export successes were denied because the products complainant claimed
were livestock and cattle, which were questionable products.
In October 2004, S1 intentionally lied when he informed C2 that a
conference complainant had been working on had been cancelled, and said he
was not going to tell complainant and that she would find out by herself.
C2 subsequently informed complainant, who spent a substantial amount of
time trying to discover whether her conference was actually cancelled.
The record suggests that S1 attempted to have the conference cancelled
but was unsuccessful.
On January 25, 2005, S1 failed to inform complainant about a visit
from a Foreign Service Officer from Vietnam, who had come to discuss
travel and tourism. Complainant's particular area was oversight of
travel and tourism, and ordinarily she would have been the person who
planned the visit. S1 stated that he told complainant about the visit
in a staff meeting. C2 stated that S1 never mentioned the visit in a
staff meeting, but another male coworker (C3) stated that he believes
he heard it mentioned during a staff meeting.
Complainant further alleges that S1 asked everyone in the office what
days they would prefer for telecommuting, but never asked her. Further,
complainant alleged that her China export successes and her quarterly
performance review were delayed. The AJ found there was no evidence
to support these allegations.
On January 10, 2005, S1 asked all of complainant's coworkers if
complainant was at work on January 7, 2005. S1 said he did this to
determine who left the postage machine on overnight.
Finally, after S2 was notified that complainant filed her EEO complaint,
S2 approached her in her office and asked her if she realized
what a serious thing she had done by filing the EEO complaint, and
warned her that if she proceeded with her EEO claim, agency attorneys
would get involved. S2 further inferred that the real issue was that
complainant had a "listening problem" and that it was not an EEO issue,
and complainant would be considered a troublemaker. Complainant also
stated that S2 told her it would take years before a final outcome was
reached and what she was doing was going to affect the working environment
in the office.
On December 29, 2004, complainant filed a formal complaint of
discrimination alleging harassment on the bases of sex (female), and in
reprisal for prior protected EEO activity when:
1. Since 2003, her career ladder promotion to GS-12 has been delayed,
and S1 ignored her inquiry in August 2004, about her promotion status;
2. In September 2004, S1 refused to approve her export successes
for Mexico and China, and held her to a higher standard of reporting
than her male colleagues, and also failed to recognize her work and
accomplishments;
3. S1treated her in a disrespectful manner, spoke abruptly and
unprofessionally to her, and took no interest in her as an employee;
4. S1 instructed her not to interact with her colleagues, told new hires
they were not allowed to talk to her, work with her, or ask her any
questions, which gave the new hires the impression that she is either
difficult to work with or has no knowledge;
5. S1 minimized her accomplishments which denied her bonuses which are
afforded to her male colleagues;
6. S1 repeatedly denied her credit hours;
7. S1 assigned her male colleague and a male intern to the most lucrative
industrial areas for obtaining export successes, while she is assigned
to sparsely-populated rural areas;
8. In October 2004, S1 informed a coworker that Headquarters had cancelled
the conference to which complainant had devoted an appreciable amount
of hard work and time, and additionally, S1 told her coworker not to
tell her, because she would "find out by herself";
9. In January 2005, S1 failed to inform her that a Foreign Service Officer
from Vietnam who handles travel and tourism was scheduled for a visit,
despite knowing that she was responsible for the travel and tourism
industry;
10. S1 approved telecommuting for the staff, and approached everyone
several times regarding their desired telecommunication days, but did
not ask her what her preferred days were;
11. As of January 11, 2005, S1 had not approved her China export successes
or given her quarterly performance report; and
12. On January 10, 2005, S1 asked her coworkers if she was at work on
Friday, January 7, 2005, and if she returned to work all day.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing, which was held on April 13 and 14, 2006.
On September 22, 2006, the AJ issued a decision finding that complainant
established that she was subjected to discrimination because of her sex,
and in reprisal for prior EEO activity in two of her twelve claims of
discrimination. Specifically, the AJ found that complainant established
that she was discriminated against when her promotion to GS-12 was
delayed. Further, the AJ found that complainant established that she was
retaliated against when S1 purposely tried to undermine her conference.
With regard to complainant's claim of a hostile work environment, the
AJ found that complainant was subjected to discriminatory animus in
many of her claims. However, the AJ found that complainant failed to
establish that a hostile work environment existed because only one of
the discriminatory acts was brought to the attention of an EEO Counselor
within the regulatory time-frame, and therefore the untimely acts could
not be considered in complainant's overall hostile work environment claim.
The AJ ordered the agency to restore complainant to a position where
she would have been had it not been for the unlawful discrimination,
determine and pay back pay, award complainant $5000 in non-pecuniary
damages, and compensate her for reasonable attorney's fees and costs.
Subsequently, the agency issued a final order fully implementing the
AJ's decision. Complainant now appeals to the Commission.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Here, there is nothing in the record that would warrant a disruption of
the AJ's credibility determinations.
Hostile Work Environment
In his decision, the AJ properly found that complainant was subjected to
discrimination when she was denied a promotion to GS-12, which the agency
does not contest. The AJ also found that because only the promotion
fell within the 45-day time frame outlined in 29 C.F.R. � 1614.105(a)(1),
complainant could not establish that a hostile work environment existed.
The Supreme Court has held that a hostile work environment claim is an
amalgamation of incidents that "collectively constitute one unlawful
employment practice." National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002). Unlike discrete acts, the incidents that
comprise a hostile work environment claim "cannot be said to occur
on any particular day" and by their "very nature, involve repeated
conduct." Id. at 115. Because a hostile work environment claim is
comprised of various incidents, the entire claim is actionable if at
least one incident occurred within the filing period.
With regard to federal sector complainants, they must raise at least
one incident of the claim to an EEO Counselor within 45 days of its
occurrence. As long as this is done, other earlier incidents of the
claim that independently would be untimely, are deemed properly raised.
A discrete act may be part of a hostile work environment claim. See
Compliance Manual at � 2-IV.C.1.b. Further, if an untimely discrete
act is part of a timely hostile work environment claim, complainant
may "only challenge the act as part of a hostile work environment
claim." Id. Recovery for the discrete act is unavailable for the act
in and of itself, but is available for the act as part of the hostile
work environment. See Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th
Cir. 2003).
Here, it is undisputed that complainant raised her promotion claim within
the 45-day time frame. Further, complainant has offered untimely acts
of discrimination as background evidence to establish that a hostile
work environment existed. We find that the AJ erred when he did not
consider these claims in his overall hostile work environment analysis.
Complainant may assert a Title VII cause of action if the discriminatory
conduct was so severe or pervasive that it created a hostile work
environment on the basis of race, color, religion, sex, national origin,
or retaliation. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999). To demonstrate a prima facie case of
a hostile working environment complainant must show: (1) that she belongs
to a protected group; (2) that she was subjected to unwelcome harassment;
(3) that the harassment complained of was based on her protected status;
(4) that the harassment affected a term, condition or privilege of
employment; and, (5) that the agency knew or should have known of the
harassment. McCleod, EEOC Appeal No. 01963810, citing Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court reaffirmed the holding of Meritor Savings Bank
v. Vinson, 477 U.S. 57, 67 (1986), finding harassment is actionable
if it is sufficiently severe or pervasive to alter the conditions of
the complainant's employment. The Court explained that an "objectively
hostile or abusive work environment [is created when] a reasonable person
would find [it] hostile or abusive" and the complainant subjectively
perceives it as such. See Harris, 510 U.S. at 21-22. Thus, not all claims
of harassment are actionable. Where a complainant challenges an agency
action or inaction regarding a specific term, condition or privilege of
employment, a claim of harassment is actionable only if the harassment to
which the complainant allegedly has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
While we agree with the AJ that the agency articulated legitimate,
nondiscriminatory reasons for some of the discrete acts, such as
the success reports, the cash awards, the credit hours, and the
rural assignments, the agency was not able to articulate legitimate,
nondiscriminatory reasons for many of the alleged discriminatory acts.
The AJ's factual findings concluded that complainant was intentionally
segregated from her coworkers based on her sex. New coworkers were
told not to talk to complainant and to stay away from her, while
complainant was inaccurately told that no one wanted to work with her.
Coworkers testified that complainant was treated so harshly that they
tried to intervene on her behalf. Additionally, S1 had a propensity to
make sex-based remarks to complainant and other employees. Complainant
alleged that S1 made comments about uneducated women every time she
had a performance review, and called her a "stupid woman." Coworkers
corroborated complainant's account of S1 knocking her award off her wall.
The AJ found the coworkers' testimony credible. In contrast, the AJ
found that S1's testimony was not worthy of credibility. Tellingly,
even S2 thought that S1 was a chauvinist. These facts, compounded
by the agency's acknowledged discriminatory non-promotion, establish
harassment that a reasonable person would find sufficiently severe or
pervasive to alter the conditions of complainant's employment. Finally,
the record establishes that complainant and her coworkers reported the
harassment to S2 time and time again, and S2 not only failed to address
the harassment, but she herself condoned it by her inaction. Therefore,
liability for the hostile work environment can be imputed to the agency.
Retaliation
Finally, the AJ properly found that complainant was retaliated
against when S1 purposely tried to sabotage complainant's training.
We find that complainant was also retaliated against when S2 confronted
complainant after she filed her formal EEO complaint. Specifically,
when S2 approached complainant and asked her if she realized what
a serious thing she had done by filing an EEO complaint, warned her
that if she proceeded with her EEO claim agency attorneys would get
involved, and told complainant she would be considered a troublemaker,
her actions had a chilling effect on the EEO process and were reasonably
likely to deter complainant from pursuing her EEO claims. Further, S2's
statements that it would take years before a final outcome was reached
in complainant's EEO complaint, and that complainant's EEO complaint
was going to affect the working environment in the office were also
reasonably likely to deter complainant from pursuing the EEO process.
Therefore, we find that S2 also retaliated against complainant.
Non-pecuniary Damages2
The AJ awarded complainant $5,000 in non-pecuniary damages for the
discriminatory non-promotion and S1's retaliation. The AJ noted that
complainant was limited in her award because the other discriminatory
acts were untimely. In calculating complainant's non-pecuniary damages,
we will consider them within the context of her successful hostile work
environment claim and the retaliation by both S1 and S2.
The purpose of non-pecuniary damages is to compensate for the intangible
damage caused by discrimination and may include damages for emotional
and/or physical harm. Non-pecuniary damages must be limited, however,
to the sums necessary to compensate the injured party for actual harm,
even where the harm is intangible. The existence, nature, and severity
of emotional harm must be proved. Enforcement Guidance: Compensatory
and Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, (EEOC Compensatory Damages Guidance), EEOC Notice No. 915.002
(July 14, 1992). A proper award should take into account the severity
of the harm and the length of time that the injured party suffered the
harm. See Carpenter v. Department of Agriculture, EEOC Appeal No. 01945652
(July 17, 1995). Finally, the amount of the award should not be
"monstrously excessive" standing alone, should not be the product of
passion or prejudice, and should be consistent with the amount awarded
in similar cases. See Jackson v. United States Postal Service, EEOC
Appeal No. 01972555 (April 15, 1999), citing Cygnar v. City of Chicago,
865 F. 2d 827, 848 (7th Cir. 1989).
Complainant asserted that she was inflicted with mental anguish and
physical ailments because of the harassment and retaliation that she
was subjected to. For example, she was a "nervous wreck" at work,
was terrified of S1, and would jump every time he walked past her.
She asserted that she cried every day to and from work, and that
her work conditions caused her to see a doctor which resulted in her
being placed on antidepressant medication from 2000 to the present.
Complainant testified that she has difficulty sleeping, she aches,
she is stressed, she often cries, she is on edge, and has bouts of
severe diarrhea. She cannot eat, lacks energy, has low self esteem, and
sometimes does not want to talk. She feels unable to face the community,
and occasionally has been unable to function for a while. Further,
complainant has developed high blood pressure and colitis, which she
did not have before the hostile work environment began. Complainant's
testimony was corroborated by her coworkers and her significant other,
who all noticed that complainant was often depressed, upset, unhappy,
and was frequently seen crying. Further, the stress from her work
environment caused significant strain on her personal relationships.
We note that there have been several Commission cases comparable to the
instant complaint. See Richardson v. Department of Homeland, EEOC Appeal
No. 0120070003 (May 28, 2008) ($62,795 awarded where witness testimony
established that complainant suffered from high blood pressure, migraine
headaches, and feelings of social isolation because she was subjected
to a hostile work environment); Viers v. United States Postal Service,
EEOC Appeal No. 01A14246 (June 20, 2002) ($65,000 in non-pecuniary
damages where the complainant stated that she suffered fatigue, insomnia,
marital strain, anxiety, loss of self esteem, depression, and withdrawal
due to harassment); Hibbert v. Department of Justice, EEOC Appeal
No. 0720070036 (October 25, 2007) ($60,000 award for non-pecuniary
damages where the agency subjected complainant to racial harassment that
resulted in stress, frustration, humiliation, and loss of self esteem).
Therefore, we find that a non-pecuniary damages award in the amount of
$65,000 is appropriate. In reaching this amount, the Commission has
considered a number of factors. For example, we considered the nature
and severity of the discrimination, as well as the nature and severity
of complainant's emotional distress and related symptoms. Further,
we find that this award is not monstrously excessive.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order with regard to the finding that complainant was discriminated
against when she was denied the promotion to GS-12 and when she was
retaliated against by S1. We REVERSE the agency's final order with regard
to the harassment claim and the claim of reprisal by S2. Accordingly,
complainant is entitled to relief as set forth in the Order below.
ORDER (D0403)
The agency is ordered to take the following remedial action:
1. Within sixty (60) calendar days after the date this decision becomes
final, the agency shall award complainant $65,000 in non-pecuniary
damages.
2. Within sixty (60) calendar days after the date this decision
becomes final, the agency shall promote complainant to a GS-12 position
retroactive to August 2004, and the agency shall afford complainant any
grade or step increases to which she would have been entitled absent
discrimination.
3. The agency shall determine the appropriate amount of back pay,
with interest, and other benefits due complainant since August 2004,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar
days after the date this decision becomes final. The complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to the complainant
for the undisputed amount within sixty (60) calendar days of the date
the agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
4. Immediately upon this decision becoming final, the agency shall take
action to ensure that S1 and S2 are removed from their supervisory roles
over complainant, without transferring complainant, and that the hostile
work environment ceases and desists. Further, the agency shall ensure
that others at the facility are protected from discrimination and a
hostile work environment.
5. Within sixty (90) calendar clays of the date that this decision
becomes final, the agency shall provide all management officials at
its U.S. Export Assistance Center in Milwaukee, Wisconsin, including
the Network Director of the Midwest Region, with at least forty (40)
hours of EEO training regarding their obligations and responsibilities
under the federal employment anti-discrimination laws, paying particular
attention to harassment and retaliation.
6. The agency shall consider taking appropriate disciplinary action
against both S1 and S2. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its U.S. Export Assistance Center,
Milwaukee, Wisconsin copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File a Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 19, 2009
Date
1 When International Trade Specialists successfully assist companies
to market their product, collect payment for a product that has been
shipped overseas, or otherwise assist them with any exporting issues,
the International Trade Specialist may claim an "export success." S1 was
responsible for verifying the export successes, and S2 approved them.
2 Neither complainant nor the agency contest the AJ's award of back pay
or attorney's fees.
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0120070702
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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