Veronica Montes-Rodriguez,
Complainant,

v.

Tom J. Vilsack,
Secretary,
Department of Agriculture,
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120080282

Hearing No. 510-2006-00214X

Agency No. APHIS-2003-01605

DECISION

On October 16, 2007, Complainant filed an appeal from the Agency’s
September 10, 2007 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 deemed timely and is accepted pursuant to
29 C.F.R. § 1614.405(a).  For the following reasons, the Commission
VACATES the Agency’s final order.

ISSUES PRESENTED

(1) Whether the AJ properly denied Complainant’s motion for sanctions
against the Agency for its failure to complete an investigation within
150 days; and (2) whether the AJ properly found that Complainant was
not subjected to discrimination as alleged.

BACKGROUND

At the time of the events giving rise to this complaint, Complainant
worked as an Animal Care Taker, WG-5, at the Agency’s National
Detector Dog Training Center in Orlando, Florida.  On January 18, 2002,
the Director issued her a notice of termination during her probationary
period.  The notice informed her that she was being terminated for
unacceptable conduct, including: (1) staying late at an event sponsored
by Eukanuba on December 12, 2001 without permission to remain late or
making arrangements to have another employee check the dog kennels during
her absence; (2) failing to report for duty on time on January 2, 2002,
listing her time of arrival on her leave slip as 10:30 a.m. despite the
fact that she had arrived at 10:45 a.m., and failing to perform her
assignments after her arrival on that date; (3) receiving excessive
personal phone calls at work, including one 43-minute personal phone
call on January 9, 2002; (4) failing to clean all of the kennel runs
and exercise all of the dogs on January 10, 2002; (5) taking a long
lunch without permission and requesting to attend a conference session
during the afternoon for no apparent reason on January 11, 2002; (6)
arriving late for work and falsifying attendance records on Saturday
January 12, 2002; (7) failing to properly lock the kennels resulting in
a dog being loose in the kennel area on January 13, 2002; (8) attending
the North American Veterinarians Conference on January 15, 2002 without
first completing her work, such as cleaning and filling out paperwork for
Canine Ollie’s crate; and (9) impersonating a police officer by flashing
her Agency badge to intimidate a driver during a traffic altercation.

Complainant filed an appeal regarding her termination with the
MSPB that was dismissed on July 24, 2002, for lack of jurisdiction.
Complainant then filed a formal EEO complaint1 alleging that she was
discriminated against on the basis of national origin (Hispanic/Puerto
Rican) when her employment was terminated on January 18, 2002, during
her probationary period.

The Agency initially dismissed the complaint pursuant to 29 C.F.R. §�
�1614.107(a)(2) for untimely EEO Counselor contact.  On appeal, the
Commission reversed the Agency’s decision and remanded the matter to
the Agency for processing in accordance with 29 C.F.R. § 1614.108.
Montes-Rodriguez v. Dep’t of Agric., EEOC Appeal No. 01A41480 (Oct. 15,
2004).  The Commission specifically ordered the Agency to process the
complaint, issue Complainant a copy of the investigative file, and notify
her of the appropriate rights within 150 calendar days of the date its
decision became final.  Id.

The Agency initiated the investigation into Complainant’s complaint,
on May 5, 2005, 202 days after the Commission’s appellate decision
became final.  On June 16, 2005, the Agency completed the investigation.
On August 10, 2005, 299 days after the Commission’s decision became
final, Complainant was provided with a copy of the report of investigation
and a notice of her right to request a hearing before an AJ.  On September
9, 2005, Complainant submitted a request for a hearing.

On July 21, 2006, the AJ assigned to the case issued an Acknowledgment and
Order to the parties.  The document did not reach Complainant, however,
because the AJ did not have her updated contact information on file.
On August 2, 2006, the AJ issued an Order to Show Cause requiring
Complainant to indicate why her complaint should not be dismissed for
her failure to prosecute.  On August 8, 2006, the Agency responded to
the AJ’s Order, noting that Complainant had informed the Agency of a
change of address in July 2006 and that the Agency had sent her discovery
requests on August 2, 2006.

On August 26, 2006, Complainant responded to a portion of the Agency’s
discovery requests, noting that she would submit the remaining information
“in the near future.”  On September 14, 2006, the Agency filed a
Motion to Compel Complainant’s Discovery Responses after Complainant
failed to fully respond to the Agency’s requests in a timely manner.
On September 15, 2006, the AJ granted the Agency’s Motion to Compel
Discovery and ordered Complainant to fully respond to the Agency’s
requests by October 6, 2006.

When Complainant did not comply with the AJ’s Motion to Compel
Discovery, on October 18, 2006, the Agency filed a Motion for Sanctions
for Failure to Comply with the AJ’s Order Granting the Agency’s Motion
to Compel Discovery.  The Agency moved for the AJ to dismiss the case
as a sanction for Complainant’s alleged transgressions.  On October
23, 2006, Complainant filed a reply, providing several reasons for her
delay and urging the AJ not to issue sanctions against her.  She also
alleged that the Agency failed to keep her apprised of her rights during
the process or conduct the investigation within the time frame ordered
by the Commission in Montes-Rodriguez, Appeal No. 01A41480.  In reply,
the Agency alleged that Complainant was attempting to evade discovery
and failing to litigate her case.

On November 16, 2006, the AJ issued an Order granting the Agency’s
motion and sanctioned Complainant by denying her the opportunity
to respond to any outstanding discovery requests; ordering adverse
inferences for admissions and requests for documents which she failed
to fully respond to as of October 16, 2006; and denying witnesses and
evidence “precluded in connection with any matter on which an adverse
inference is made.”

On March 1, 2007, the AJ issued an Order – Case Processing and Show
Cause in response to the Agency’s contention that Complainant failed
to submit a deposition errata sheet.  The AJ noted that Complainant had
previously been sanctioned for failing to respond to discovery requests
and ordered Complainant to submit the errata sheet by March 22, 2007,
or risk further sanctions.

On April 20, 2007, the Agency submitted a Motion for a Decision Without
a Hearing.  The Agency argued that Complainant failed to establish
that she was subjected to discrimination.  The Agency also argued
that she should be precluded from seeking financial damages due to
her failure to properly respond to the Agency’s discovery requests.
On May 7, 2007, Complainant filed a Counter-Claim for Summary Judgment.
She urged the AJ to reject the Agency’s motion and find that she was
subjected to discrimination as alleged.  The AJ denied the motions for
summary judgment and issued a Hearing Scheduling Order.  The AJ’s
Order approved witnesses for the hearing and sanctioned Complainant by
limiting her witness list for failing to provide a witness list in a
timely manner or respond to a previously issued scheduling order.

On June 9, 2007, Complainant filed a Motion to Reverse and Vacate
Sanctions.  She argued that the AJ may have erred in sanctioning her by
excluding two witnesses and noted that the Agency had failed to obtain
sworn statements from these individuals during the investigation.
The Agency filed a response in opposition to her motion.

On June 15, 2007, Complainant filed a Motion for Sanctions against the
Agency.  She argued that the Agency failed to conduct an investigation
within 150 days in accordance with the Commission’s previous order.
She moved for the AJ to dismiss the Agency’s case and render judgment
in her favor as a sanction for the Agency’s noncompliance.  She also
argued that the Agency submitted an incomplete Report of Investigation to
the AJ.  In response, the Agency argued that Complainant’s motion was
“a thinly veiled attempt to circumvent [the AJ’s] previous orders
and avoid responsibility for her own contumacious conduct in this
case.”  The Agency argued that Complainant’s “lack of evidence
is completely unrelated to any Agency action, and is directly due to
the specious nature of her claims and willful lack of participation in
discovery.”  On June 20, 2007, the AJ denied Complainant’s motion.
The AJ held that Complainant was given the opportunity to correct any
deficiencies in the record during discovery, but she failed to comply
with the AJ’s discovery orders.

On June 21, 2007, Complainant filed a Motion for Recusal of the AJ,
arguing that the AJ “engaged in a pattern of conduct which has
demonstrated bias against [her] or at a minimum the appearance of
impropriety.”  She argued that the AJ “repeatedly ignored the
[A]gency’s willful noncompliance with statutory provisions and the
Commission’s decisions” and “abused [his] discretion when he chose
not to impose sanctions against the Agency when warranted.”2

On June 28, 2007, the AJ held a hearing, and he issued a decision on July
26, 2007, finding no discrimination.  Specifically, the AJ found that
Complainant failed to establish a prima facie case of national origin
discrimination and that she failed to establish that the Agency’s
legitimate, nondiscriminatory reasons for her termination were a pretext
for unlawful discrimination.  The Agency issued a final order fully
adopting the AJ’s finding that Complainant failed to prove that she
was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, through her representative, Complainant argued that the AJ
erred in refusing to sanction the Agency and render judgment in her
favor because the Agency “did not initiate or [assign] an investigator
to the complaint until after the expiration of the 150 days it had to
complete the investigation; nor was a written agreement obtained from
the Complainant to extend the time.”  Complainant also argued that the
AJ erred in finding no discrimination because “[t]he issue of poor
performance and misconduct was an artifice perpetuated to conceal the
disparate treatment of [Complainant] and effect her dismissal.”  She
argued that Agency witnesses provided “evasive and contradictory”
arguments at the hearing and that their testimony “portray[ed] a double
standard in the treatment of the white employees” and Complainant.3

In response, the Agency urged the Commission to affirm its final decision.
The Agency argued that the AJ properly found that Complainant failed
to establish a prima facie case of discrimination based on national
origin and that she failed to establish that the Agency’s reasons
for its actions were a pretext for discrimination.  The Agency further
argued that the AJ properly denied Complainant’s request for sanctions
against the Agency for failure to complete its investigation within the
required time frame “because [Complainant’s] non-compliance with
her procedural obligations caused delay as well,” and “the AJ had
ample basis upon which to rule that [Complainant’s] dilatory conduct
tempered the Agency’s harmless delay.”4

ANALYSIS AND FINDINGS

Complainant’s Request for Sanctions

The Commission's regulations afford broad authority to AJs for the
conduct of hearings. See 29 C.F.R. § 1614.109 et seq.; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
Ch. 7, Sec. III(D) (Nov. 9, 1999).  An AJ has inherent powers to conduct a
hearing and to issue appropriate sanctions, including a default judgment.
See id.; Matheny v. Dep’t of Justice, EEOC Request No. 05A30373
(Apr. 21, 2005); Rountree v. Dep’t of the Treasury, EEOC Appeal
No. 07A00015 (July 13, 2001).

Specifically, our regulations provide that where a party fails to
respond to an order of an AJ, or requests for the investigative file,
for documents, records, comparative data, statistics, affidavits, or the
attendance of witnesses, the AJ may, as appropriate, take action against
the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3), i.e.,
an AJ may: (1) draw an adverse inference that the requested information
would have reflected unfavorably on the non-complying party; (2) consider
the requested information to be established in favor of the opposing
party; (3) exclude other evidence offered by the non-complying party;
(4) issue a decision fully or partially in favor of the opposing party;
or (5) take other action deemed appropriate, e.g., payment of costs and
expenses by the non-complying party.  Id.  Before taking any of the
actions authorized by the Commission's regulations, an AJ must first
issue a Notice to Show Cause to the non-complying party.  EEO-MD-110,
Chapter 7, Section III(D), n.6; see DaCosta v. Dep’t of Educ., EEOC
Appeal No. 01995992 (Feb. 25, 2000).

Complainant argued on appeal that the AJ erred in denying her motion to
sanction the Agency for its delay in completing the EEO investigation.  We
agree.  The Commission’s October 15, 2004 decision in Montes-Rodriguez,
EEOC Appeal No. 01A41480, ordered the Agency to complete the investigation
and provide Complainant with a copy within 150 days.  However, the
Agency did not initiate the investigation until 202 days had elapsed
from the date the Commission’s decision became final.  The Agency
was well aware that, pursuant to 29 C.F.R. § 1614.502, it was bound
by the Commission’s previous decision to investigate the complaint
in accordance with the Commission’s order, but it delayed doing so.
Therefore, we find that the AJ should have granted Complainant’s Motion
for Sanctions for the Agency’s failure to follow the Commission’s
order and complete the investigation within 150 days.  See also Royal
v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009) (finding that the Agency’s delay in completing the investigation
within 180 days was “no small non-compliance matter” and warranted a
sanction); DaCosta, EEOC Appeal No.  01995992 (finding that the Agency's
lengthy delay in initiating and completing an investigation of a complaint
within 180 days of filing was a clear violation of EEO regulations,
and of the AJ's orders, which warranted sanction of the Agency).

The Commission has previously held that prior to the imposition of
sanctions, the party against whom such sanctions are to be imposed is
entitled to an opportunity to respond and show cause as to why sanctions
should not be imposed.  See White v. Dep’t of the Interior, EEOC Appeal
No. 01A54028 (Nov. 4, 2005); Miller v. Dep’t of the Navy, EEOC Appeal
No. 01A01735 (June 18, 2004).  Here, we find that the Agency was given
the opportunity to show cause as to why sanctions were not warranted.
The Agency filed a response to Complainant’s Motion for Sanctions,
arguing that her noncompliance during the pre-hearing process negated any
right to sanctions.  The Agency also had an opportunity to address its
delay when Complainant reintroduced her motion during the hearing and in
its statement on appeal.  We note, however, that the Agency never provided
documentation or an explanation specifically addressing its delay.

On appeal, the Agency argued that its delay had no ill effect and
reiterated its contention that Complainant’s actions during the
pre-hearing process “tempered the Agency’s harmless delay.”
However, the Agency cited no authority in support of the proposition that
its willful delay in processing the complaint was somehow less harmful
to Complainant’s cause, or less of a violation of the integrity of
the EEO process, than her actions during the pre-hearing process.

Determination of the Sanction

In general, the Commission has held that sanctions, while corrective, also
act to prevent similar misconduct in the future and must be tailored to
each situation, applying the least severe sanction necessary to respond
to the party's failure to show good cause for its actions, as well as
to equitably remedy the opposing party.  Gray v. Dep’t of Def., EEOC
Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015;
Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
The Commission has emphasized that the purpose of a sanction is to
deter the underlying conduct of the non-complying party.  See Barbour
v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005).

The factors pertinent to “tailoring” a sanction, or determining
whether a sanction is, in fact, warranted, include: (1) the extent and
nature of the non-compliance, including the justification presented by
the non-complying party; (2) the prejudicial effect of the non-compliance
on the opposing party; (3) the consequences resulting from the delay in
justice, if any; and (4) the effect on the integrity of the EEO process.
Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal
No. 01A35340 (Jan. 18, 2005).

We find that default judgment in Complainant’s favor is an appropriate
remedy in this case.  As noted above, in Montes-Rodriguez, EEOC
Appeal No. 01A41480, the Commission ordered the Agency to conduct the
investigation, provide Complainant with a copy of the investigative
file, and inform her of the appropriate rights within 150 calendar
days of the date the Commission’s decision became final.  However,
the Agency violated the Commission’s order when it did not initiate
an investigation until 202 days had elapsed.  Furthermore, the Agency
failed to provide Complainant with a copy of the investigative file
or notify her of her rights until 299 days had elapsed, nearly double
the amount of time allowed by the Commission’s order.  The Agency
did not show good cause for its delay in initiating the investigation
or its failure to provide Complainant with a copy of the investigative
file in a timely manner.  Although the Agency argued that the delay was
“harmless” in this case, the Commission has found that, “given the
length of time that the processing of a federal sector EEO complaint can
take, any delays past the time frames in the regulations can impact the
outcome of Complainant’s claims.”  Royal, EEOC Request No. 0520080052.

Furthermore, the fourth factor, the effect on the integrity of the
EEO process, should not be underestimated when tailoring a sanction.
Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009).
“Protecting the integrity of the 29 C.F.R. Part 1614 process is
central to the Commission's ability to carry out its charge of eradicating
discrimination in the federal sector.”  Id. (quoting Royal, EEOC Request
No. 0520080052).  An Agency which treats the time deadlines for production
of an adequately developed investigation as optional has a negative effect
on the outcome not only of the immediate case, but also of any other
cases under its jurisdiction.  See Id.  The Commission must insure that
all parties abide by its regulations and orders.  Our decision to issue
a default judgment will effectively emphasize to the Agency the need to
comply with Commission orders in a timely manner, as well as ensure that
future Agency investigations are adequately developed for adjudication.





Remedy Following Default Judgment

In Matheny v. Dep’t of Justice, EEOC Request No. 05A30373 (Apr. 21,
2005), the Commission addressed the issue of crafting an appropriate
remedy when a default judgment has been rendered.  The Commission held
that Complainants may be entitled to remedies, including reinstatement,
if they establish their right to relief by “evidence that satisfies
the court.”  Id.  For example, the establishment of the elements of
a prima facie case of discrimination would be sufficient to establish
such a right.  Cox, EEOC Appeal No. 0720050055; Royal, EEOC Request
No. 0520080052.

Upon review, we find that reinstating Complainant into her former Animal
Care Taker position with backpay and restoration of her benefits is
not appropriate in this case because she failed to establish a prima
facie case of discrimination.  In order to establish a prima facie case,
Complainant must demonstrate that: (1) she is a member of a protected
class, (2) she was subjected to adverse treatment, and (3) she was treated
differently than otherwise similarly situated employees outside of her
protected class.  Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419
(Mar 13, 2003); Ornelas v. Dep’t of Justice, EEOC Appeal No. 01995301
(Sept. 26, 2002).  It is not necessary, however, for her to rely strictly
on comparative evidence in order to establish an inference that the Agency
was motivated by unlawful discrimination.  Soriano v. U.S. Postal Serv.,
EEOC Appeal No. 01A14814 (Feb. 21, 2004).  Although Complainant is a
member of a protected class and was subjected to an adverse action,
she neither identified any similarly situated individuals outside of
her protected class that were treated more favorably nor submitted
evidence establishing an inference of national origin discrimination.
She identified one Caucasian male comparator, but he was also terminated
during his probationary period for unacceptable conduct.  Thus, we find
that Complainant’s failure to establish a prima facie case precludes
her entitlement to reinstatement as a remedy.

Under Royal and Cox, however, Complainant’s failure to establish a prima
facie case of discrimination does not prevent her from being awarded
other remedies.  By issuing a default judgment against the Agency as a
sanction for its noncompliance and untimely investigation, we are finding
in Complainant’s favor on her complaint of discrimination, and she
may be entitled to an award of compensatory damages and/or attorney’s
fees as a prevailing party.  Therefore, the case is remanded to the
Hearings Unit for a determination of her entitlement to compensatory
damages and/or attorney’s fees.

CONCLUSION

Accordingly, the Commission VACATES the Agency’s finding of no
discrimination and REMANDS the matter for a hearing in accordance with
this decision and the ORDER below.

ORDER

The Agency is ORDERED to take the following actions:

(1)	The Agency shall submit to the Hearings Unit of the EEOC’s
Miami District Office the request for a hearing on Complainant’s
entitlement to compensatory damages and/or attorney’s fees within
fifteen (15) calendar days of the date this decision becomes final.
The Agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final.  The Agency shall provide written notification to
the Compliance Officer at the address set forth below that the complaint
file has been transmitted to the Hearings Unit.  Thereafter, an AJ that
has not previously been assigned to this matter shall determine whether
Complainant is entitled to compensatory damages, both pecuniary and
non-pecuniary, and/or attorney’s fees, consistent with this decision.
The AJ shall issue a decision on the remedies awarded in accordance
with 29 C.F.R. § 1614.109, and the Agency shall issue a final action
in accordance with 29 C.F.R. § 1614.110.

(2)	The Agency shall provide training to the EEO management officials
regarding their responsibilities concerning case processing.

(3)	The Agency shall consider taking appropriate disciplinary action
against the responsible management officials.  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).

    POSTING ORDER (G0900)

The Agency is ordered to post at its National Detector Dog Training Center
in Orlando, Florida 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.

		  IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

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 (M0610)

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), at 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 (R0610)

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 (Z0610)

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


January 12, 2012
Date

1 The Report of Investigation does not contain a copy of Complainant’s
formal complaint.  However, neither party disputes on appeal that
Complainant filed a formal complaint, that the complaint was filed in a
timely manner, or that she alleged in her complaint that she was subjected
to discrimination based on national origin when she was terminated on
January 18, 2002, during her probationary period.
2 It is unclear from the record whether Complainant withdrew her June
21, 2007 Motion for Recusal of the AJ or the AJ denied the motion.
Nevertheless, it is apparent that the same AJ continued to handle the
matter during the remainder of the hearing process.

3 Because Complainant does not address her June 21, 2007 Motion
for Recusal of the AJ on appeal, the Commission will not address
Complainant’s motion or her objections to the AJ’s continued
involvement during the hearing process.  See EEOC Management Directive
110, Chapter 9, § IV.A. (November 9, 1999).

4 The Agency also argued that Complainant filed an untimely statement
on appeal.  However, the record reflects that Complainant was granted
an extension to file her statement or brief by December 5, 2007, and
her representative filed her statement on that date.
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0120080282




U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013