0720070041
09-03-2009
Yvonne Hamblin, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Yvonne Hamblin,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0720070041
Hearing No. 260-2005-00174X
Agency No. F-04-5846
DECISION
Following its April 6, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency accepts the EEOC Administrative Judge's (AJ)
finding that the agency violated Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq, when
it failed to maintain complainant's confidential medical information in
a file separate from her official personnel file. However, the agency
requests that the Commission affirm its rejection of the AJ's finding that
the agency violated the Rehabilitation Act when it revoked complainant's
early work schedule and ultimately terminated her employment. The agency
also requests that the Commission affirm its rejection of the relief
ordered by the AJ related to the agency's revocation of complainant's
work schedule and termination. For the following reasons, the Commission
MODIFIES the agency's final order.
ISSUE PRESENTED
Whether the EEOC Administrative Judge correctly determined that
complainant proved that the agency discriminated against her on the basis
of disability (Bipolar Disorder) when it terminated her employment in
August 2004.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a financial analyst, GS-12, for the Federal Bureau of Investigation's
Minneapolis, Minnesota Division. The record reveals that complainant
began working with the agency in May 1998, and in November 2000, the
agency approved complainant's request to work a flexible early schedule
from 6:30 a.m. to 3:15 p.m. The early work schedule was granted in order
to allow complainant to attend medical appointments associated with her
Bipolar Disorder.
In September 2002, the agency assigned a new special agent to supervise
complainant. On January 29, 2003, complainant submitted a document to
her supervisor in which she requested the continuation of her early work
schedule. In the letter, complainant stated that the early schedule
enabled her to be more productive in her tasks. Complainant further
stated that because of her Bipolar Disorder, she has a "disruptive" sleep
pattern, averages only four hours of sleep per night at most, sometimes
does not sleep at all, and usually is exhausted by the end of the day
because of a lack of sleep. On or about March 5, 2003, complainant's
supervisor revoked complainant's flexible work schedule accommodation and
returned her to a later, regular schedule. In a letter dated March 10,
2003, complainant's physician provided a letter to the agency supporting
complainant's request for an early work schedule in order to prevent
longstanding problems she experienced with sleeping because of her
Bipolar Disorder. In a letter dated April 1, 2003, complainant also
informed an agency nurse that she needed an early work schedule because
of sleep problems and exhaustion caused by her Bipolar Disorder. On or
about April 3, 2003, the agency overturned the supervisor's decision
and returned complainant to the early work schedule.
On August 4, 2003, complainant's supervisor informed complainant that she
was rated "Does Not Meet Expectations" on her annual performance appraisal
plan (PAR) for the period ending June 30, 2003. The supervisor also gave
complainant an "assistance statement," which stated that complainant's
failure to improve her performance within ninety days could result in
reassignment, demotion, or removal. The "assistance statement" also
revoked complainant's early work schedule and informed complainant to
report to work from 8:15 a.m. until 5:00 p.m.
On November 17, 2003, the agency reassigned complainant from her
financial analyst position to clerical duties under the supervision
of an administrative officer. On April 16, 2004, complainant's former
supervisor requested that complainant be removed from the agency because
she failed to improve her performance. The agency removed complainant
effective August 10, 2004.
Complainant subsequently filed an EEO complaint alleging that she
was discriminated against on the bases of race (black), sex (female),
disability (Bipolar Disorder) and in reprisal for prior protected EEO
activity under Title VII and the Rehabilitation Act when the agency
terminated her on August 10, 2004.
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. Before the hearing, complainant withdrew her
claim that she was subjected to discrimination on the bases of race,
sex, and reprisal, leaving disability discrimination as the only basis
for her complaint. The AJ held a hearing on October 13 and 14, 2005.
In a decision dated February 21, 2007, the AJ found that the agency
violated the Rehabilitation Act when it revoked complainant's reasonable
accommodation of an early work schedule at the same time that it gave her
an "assistance statement" with ninety days to improve her performance,
which ultimately culminated in complainant's termination. The AJ
further concluded that the agency violated the Rehabilitation Act when
it unlawfully placed medical documents in complainant's personnel file.
The AJ ordered the agency to remedy its Rehabilitation Act violations
by offering complainant reinstatement to her financial analyst position,
or a substantially equivalent position. The AJ further ordered the agency
to pay complainant $10,000.00 in non-pecuniary compensatory damages and
back pay with interest. Additionally, the AJ ordered the agency to post a
notice of the discrimination finding in its Minneapolis Office; provide
three hours of training on the Rehabilitation Act to all management
in the Minneapolis Office within 6 months of the AJ's decision; and,
expunge all adverse materials relating to complainant's termination.
On May 23, 2007, the AJ issued an additional order in which she directed
the agency to pay complainant $41,732.74 in attorney's fees and costs.
As noted above, the agency subsequently issued a final order in which it
rejected the AJ's finding that complainant was subjected to discrimination
when it revoked her early work schedule and terminated her and accepted
the AJ's finding that the agency violated the Rehabilitation Act when
it placed medical documents in complainant's personnel file.
CONTENTIONS ON APPEAL
On appeal and in its final order, the agency accepts the AJ's finding
that complainant is an individual with a disability, but contends that
complainant failed to show that she could perform the essential functions
of her position with or without an accommodation. The agency argues
that beginning in February 1, 2003, complainant's supervisor documented
"performance issues relating to complainant's work product," including
numerous discrepancies in suspicious activity reports (SARS) prepared
by complainant and complainant's difficulties in conducting audits and
checking computerized indices.
The agency further argues that complainant received her annual performance
appraisal report (PAR) for the period ending June 30, 2003, in which
her supervisor rated her "Does Not Meet Expectations" and noted that
complainant continued to struggle and make mistakes processing SARS;
failed to demonstrate the ability to identify potential criminal
violations; and, failed to show any initiative in gathering additional
information for analyzing financial records. The agency further maintains
that even after complainant was given a ninety-day period to improve her
performance and returned to working a regular work schedule on or about
August 5, 2003, complainant failed to improve her unacceptable performance
by the conclusion of the ninety-day period and received a "Does Not Meet
Expectations" overall performance rating on November 10, 2003.
The agency contends that although complainant testified that her sleeping
difficulties resulted in her getting only a few hours of sleep, waking
up early, and being tired in the afternoon, there was no evidence
that complainant was less prone to make errors in the morning or that
the quality of her work diminished as the day progressed. The agency
further points out that complainant testified that the "main reason"
why she wanted an early work schedule was so that she could see her
physician and did not have adequate sick leave to cover the appointments.
According to the agency, complainant had an early work schedule during
all but one month of the rating period ending June 30, 2003. This,
the agency maintains, suggests that the early schedule did not assist
complainant in performing her job duties effectively, and therefore,
there was no basis for the AJ to conclude that the revocation of
the early work schedule caused complainant's performance problems.
The agency contends that because there were no other GS-12 vacancies
available in the Minneapolis division to which complainant could be
reassigned, and complainant rejected a demotion to another position,
it properly removed her from the agency effective August 10, 2004.
On April 24, 2007, complainant requested that the Commission dismiss the
agency's appeal because it did not notify the Commission and complainant
of its intentions regarding interim relief and failed to provide interim
relief when the agency filed its appeal on April 6, 2007, in accordance
with 29 C.F.R. � 1614.505 (a)(1)1, which states, in pertinent part, that:
When the agency appeals and the case involves removal, separation,
or suspension continuing beyond the date of the appeal, and when the
administrative judge's decision orders retroactive restoration, the
agency shall comply with the decision to the extent of the temporary or
conditional restoration of the employee to duty status in the position
specified in the decision, pending the outcome of the agency appeal.
On April 26, 2007, the agency informed the Commission that it opposed
complainant's request to dismiss its appeal because the agency did not
become aware of its failure to notify complainant and the Commission of
its interim relief actions until complainant's request for dismissal
of the agency's appeal. The agency contends that its appeal should
not be dismissed since it submitted a letter dated April 25, 2007 to
complainant's counsel and the Commission in which it informed complainant
that she was reinstated to a GS-12 financial analyst position effective
April 20, 2007, pursuant to interim relief ordered by the AJ. The letter
submitted by the agency further states that complainant will be carried
on administrative leave with pay from April 20, 2007 "continuing until
further notice;" administrative leave is subject to "cancellation at
any time;" and, complainant must contact the Administrative Officer
of the Minneapolis Division before 10:00 a.m. each day while she is on
administrative leave.
On May 17, 2007, complainant further requested that the Commission
dismiss the agency's appeal pursuant to 29 C.F.R. � 1614.505(b) because,
although the agency notified complainant on April 26, 2007 that it would
reinstate her to her position, it still had not paid her the requisite
back pay and benefits.
On May 22, 2007, the agency submitted its statement in opposition to
the complainant's request for dismissal of its appeal. The agency
stated that after it reinstated complainant on April 25, 2007, it
took "every necessary step" to provide all requisite pay and benefits
and pay to complainant in an expeditious manner. The agency further
stated that the processing of the complainant's pay by the National
Finance Center occurred the weekend before May 21, 2007, and would be
reflected in complainant's bank account within two days of May 22, 2007.
The agency submitted a Notification of Personnel Action form dated
April 4, 2007 authorizing complainant's reinstatement and receipt of
full pay and benefits from April 20, 2007 until the date "the decision
becomes final."
On May 25, 2007, complainant submitted a brief in which he further
contended that the AJ properly found that the agency violated the
Rehabilitation Act when it kept medical documentation in her personnel
file and denied her an early work schedule, which culminated in her
termination.
ANALYSIS AND FINDINGS
The AJ's Decision
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).
Reasonable Accommodation
As an initial matter, we note that because the agency does not contest
the AJ's finding that complainant is an individual with a disability on
appeal, we decline to review the AJ's determination that complainant is
disabled.2
Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of a qualified individual with a disability unless the agency can show
that accommodation would cause an undue hardship. 29 C.F.R. �� 1630.2(o)
and (p). A reasonable accommodation may consist of modifications or
adjustments to the work environment or to the manner or circumstances
under which the position held is customarily performed that enables a
qualified individual with a disability to perform the essential functions
of that position. 29 C.F.R. � 1630.2(o)(ii). Complainant may use "plain
English" and need not mention the Rehabilitation Act or use the phrase
"reasonable accommodation" when requesting a reasonable accommodation. See
EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, Question 1
(as revised October 17, 2002) ("Reasonable Accommodation Guidance").
A "qualified individual with a disability" is an individual with a
disability who satisfies the requisite skill, experience, education and
other job related requirements of the employment position such individual
holds or desires, and who, with or without reasonable accommodation, can
perform the essential functions of the position. 29 C.F.R. � 1630.2(m).
Here, the agency contends that complainant was not a qualified individual
because two special agents and an Assistant United States Attorney
requested in 2001 that complainant not be assigned to work on their cases;
complainant's performance summary assessment for the period June 13, 2001
to August 27, 2001 stated that complainant exhibited problems with the
organization of data and financial summaries; complainant had performed
"minimal" work on her cases at the time of a file review in January 13,
2003; complainant received a "Does Not Meet Expectations" on her August
4, 2003 PAR; and, complainant did not improve during the ninety-day
assistance period.
However, despite these cited deficiencies, we find that substantial
evidence in the record supports the AJ's conclusion that complainant
was a "qualified" individual with a disability because the record shows
that she satisfactorily performed the duties of her position before her
new supervisor revoked her accommodation of an early work schedule. For
example, complainant received "fully successful" or "superior performance
appraisals from 1998 until 2002, including a "Meets Expectations" rating
from her new supervisor as late as October 2002. To the extent that
the agency contends that there were problems with complainant's work
performance under the new supervisor, we agree with the AJ that the March
2003 and August 2003 revocation of complainant's accommodation likely
played a substantial role in complainant's declining work performance.
Further, while complainant's supervisor initially rated complainant
"Does Not Meet Expectations" in seven critical elements in August 2003,
complainant's rating was ultimately raised to "Meets Expectations" in
six of seven critical elements. Thus, we do not find that complainant's
evaluations reflect that she was unable to perform the essential functions
of her financial analyst position with the requested accommodation of
an early work schedule.
Further, based on our review of the hearing transcript and documentary
evidence, we concur with the AJ that management at complainant's facility
was aware of complainant's Bipolar Disorder and her need to work an
early schedule in order to avoid exhaustion and concentration problems,
as well as to attend doctor's appointments. In particular, we find that
complainant and her physician informed the agency in January 2003, March
2003, and April 2003 that complainant needed to work an early schedule
because of medical appointments and sleep problems associated with her
Bipolar Disorder.
Complainant testified and documentary evidence reflects that complainant
informed the agency that she experienced great difficulty sleeping,
sometimes going entire days without sleeping. The record further
reflects that she informed the agency that she needed to work an early
schedule because she could concentrate better in the morning, was often
exhausted in the afternoon because of her Bipolar Disorder, and had
medical appointments in the afternoon. Additionally, we find that when
complainant was first granted an early work schedule in November 2000,
the agency allowed her to continue working the early schedule until March
2003, in apparent recognition that she needed this schedule because of
her Bipolar Disorder. Moreover, in February 2001, complainant's previous
supervisor recommended that complainant continue the early work schedule
because she had been "productive, less stressed and more able to focus
on her duties with an alternative work schedule." Furthermore, we find
that the agency acknowledged complainant's need to work the early work
schedule in April 2003 when it overturned the supervisor's revocation of
complainant's early work schedule. Consequently, we concur with the AJ
that granting complainant an early work schedule was a medically necessary
and effective accommodation for complainant's Bipolar Disorder.
Complainant's supervisor contended that she revoked complainant's
early work schedule so that she could interact more with complainant.
However, we do not find that complainant's work schedule constituted an
undue burden on the agency, especially in light of the fact that the
agency granted complainant an early work schedule for well over three
years and returned complainant to an early work schedule in April 2003.
Thus, we find that substantial evidence supports the AJ's conclusion
that the agency has not proven that providing complainant with an early
work schedule would have been an undue hardship.
Finally, we find that the record supports the AJ's determination that the
agency's failure to provide complainant with a reasonable accommodation
resulted in her termination. As noted by the AJ, complainant testified
that the revocation of her early work schedule was a "nightmare"
because the later schedule exacerbated her sleep problems, made her more
exhausted, increased her stress level, and made it more difficult for her
to focus. Like the AJ, we are persuaded that complainant was unable to
raise her performance during the crucial ninety-day assistance period
because the agency's revocation of her early work schedule disturbed
her fragile sleep patterns. Thus, we find that substantial evidence
supports the AJ's conclusion that the agency's failure to accommodate
complainant with an early work schedule ultimately led to her termination.
See Linda Jambora v. United States Postal Service, EEOC Appeal No. Appeal
No. 0720040128 (May 16, 2006) (Commission found that agency constructively
discharged complainant when it revoked her reasonable accommodation of
working the day shift).
Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant
who establishes unlawful intentional discrimination under either Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., or the Rehabilitation Act may receive compensatory damages for
past and future pecuniary losses and non-pecuniary losses. 42 U.S.C. �
1981a (b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme
Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process. However, complainant
bears the burden in proving that the harm suffered was caused by the
agency's discriminatory actions, as well as the burden of demonstrating
the extent, nature, and severity of the harm, to include the duration
or expected duration of the harm. See Johnson v. Department of Interior,
EEOC Appeal No. 01961812 (June 18, 1998); also see Enforcement Guidance:
Compensatory and Punitive Damages Available under Section 102 of the
Civil Rights Act of 1991, No. N 915-002 (July 14, 1992) (Guidance).
Complainant briefly testified that because of her termination, she has
been placed on higher dosages of medications, her sleep problems have
worsened, and she has experienced memory loss and sadness. Hearing
Transcript, pp. 101-104. On appeal, complainant did not contest the AJ's
award of $10,000 in non-pecuniary compensatory damages, and the agency
did not address this aspect of the AJ's decision. Thus, based upon the
foregoing, our review of the record, and Commission precedent, we find
that substantial evidence supports the AJ's conclusion that complainant
is entitled to $10,000 in non-pecuniary damages. An award of $10,000
takes into account, as best may be discerned, the nature, severity,
and duration of complainant's suffering. This award is also consistent
with other non-pecuniary compensatory damages awards given in similar
cases and is not "monstrously excessive" standing alone, nor derived from
passion or prejudice. See Shobert v. Department of the Air Force, EEOC
Appeal No. 01A40981 (August 4, 2005) ($10,000 awarded where complainant
experienced emotional distress, humiliation, and severe anxiety for
approximately two years, became withdrawn, somber, easily angered,
and reclusive); Eberly v. United States Postal Service, EEOC Appeal
No. 07A30085 (May 20, 2004) ($10,000 awarded where complainant experienced
depression, sleeplessness, anxiety, low self-esteem, and nightmares,
but majority of symptoms were caused by prior unrelated incident);
Caros v. Department of Homeland Security, EEOC Appeal No. 07A30094
(February 19, 2004) ($10,000 awarded where complainant experienced an
exacerbation of physical ailments as well as low self-esteem, depression,
anxiety, and marital strain); Haver v. United States Postal Service, EEOC
Appeal No. 07A30135 (Mar. 19, 2004) (awarding $10,000 in non-pecuniary,
compensatory damages after complainant experienced sleeplessness and
hostility, and felt like his world collapsed after his non-selection).
Attorney's Fees
The Commission, an agency, or an AJ may award complainant reasonable
attorney's fees and other costs incurred in the processing of a complaint
regarding allegations of discrimination in violation of the Rehabilitation
Act. 29 C.F.R. � 1614.501(e).
Complainant submitted a sworn declaration in support of her claim of
$41,732.74 in attorney's fees and costs. Complainant also submitted a
sworn declaration from an attorney in complainant's geographic area.
The agency did not submit an objection to complainant's declaration to
the AJ. The AJ awarded complainant $41,732.74 in attorney's fees and
costs based on her finding that complainant's attorney's hourly rate
was reasonable and consistent with the prevailing rates in the relevant
community of attorneys in similar cases, and complainant's attorney
spent a reasonable amount of hours on this case.
On appeal, the agency merely contends that complainant should not
receive attorney's fees and costs because she should have only prevailed
on the issue of the agency's failure to properly maintain her medical
documentation, which was raised by the AJ sua sponte during the hearing.
However, because we find that complainant also prevailed on her claim
that the agency discriminated against her when it terminated her,
complainant also is entitled to receive attorney's fees related to her
wrongful termination claim. As such, we find that the record supports
the AJ's attorney's fees and cost award.3
CONCLUSION
Accordingly, after a careful review of the record, we affirm the agency's
final order with respect to its finding that the agency violated the
Rehabilitation Act when it placed complainant's medical documents in her
personnel file. The Commission REVERSES the final order's determination
that the agency did not violate the Rehabilitation Act when it terminated
complainant. Therefore, after a careful review of the record, including
arguments and evidence not specifically discussed in this decision, the
Commission MODIFIES the agency's final order and REMANDS the matter to
the agency to take corrective action in accordance with this decision
and the order below.
ORDER (E0408)
To the extent that the agency has not already done so, the agency is
ordered to take the following remedial actions:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional written offer to complainant
to place her in the position of a financial analyst, GS-12, with a work
schedule of 6:30 a.m. to 3:15 p.m. Complainant shall have fifteen (15)
calendar days from her receipt of the offer within which to accept or
decline the offer. Complainant's failure to accept the offer pursuant
to these terms will be considered a declination of the offer unless
complainant can show that circumstances beyond her control prevented
a response within the time limit. If complainant accepts the offer,
re-employment shall be retroactive to the date of complainant's
termination, August 10, 2004.
2. The agency shall determine the appropriate amount of back pay, with
interest, and other benefits, including leave, due complainant, 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."
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay to complainant $10,000.00 as an award of
non-pecuniary compensatory damages.
4. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall pay complainant $41,732.74 in attorney's fees
and costs. In addition, the agency shall pay complainant attorney's fees
and costs associated with this appeal, as more fully specified in the
"Attorney's Fees" provision below.
5. Within sixty (60) calendar days of the date this decision becomes
final, the agency will administer EEO training to all management officials
in the Minneapolis Division of the Federal Bureau of Investigation.
At a minimum, the responsible management officials still employed by the
agency must receive 16 hours of EEO training with a focus on manager
responsibilities under the Rehabilitation Act. This training shall
address the agency's requirements with respect to maintaining employees'
medical documents, providing a reasonable accommodation for individuals
with disabilities, and the agency's duty to ensure that employees are
not subjected to retaliation because of their EEO activity. If any
responsible management officials have left the employ of the agency,
the agency must provide official documentation demonstrating that the
responsible employee is no longer employed by the agency to the compliance
officer.
6. The agency shall consider taking appropriate disciplinary action
against the responsible management officials, if they are still
employed by the agency. The Commission does not consider training to
be disciplinary action. The agency shall provide a written report of
its disciplinary actions to the compliance officer with specificity.
If any responsible official has left the agency's employ, the agency
shall furnish official documentation of his or her departure.
7. Within thirty (30) calendar days of the date this decision becomes
final, the agency must post the attached notice regarding this finding
of discrimination at its Minneapolis Division offices, as more fully
specified in the "Posting Order" provision below.
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 Minneapolis, Minnesota Division
offices 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)), 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
______9-03-09________________
Date
1 If an agency does not provide the required interim relief, a complainant
may request the dismissal of the agency's appeal within 25 days of the
date of service of the agency's appeal. 29 C.F.R. � 1614.505(b).
2 We note that the Commission has the discretion to review only those
issues specifically raised in an appeal. EEOC Management Directive 110,
9-10 (November 9, 1999).
3 In light of the disposition of this case, we decline to address
complainant's claim that the agency failed to provide interim relief in
accordance with 29 C.F.R. � 1614.505 (a)(1).
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0720070041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
14 0720070041