JACQUELINE D. CARSON, COMPLAINANT,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEPARTMENT OF JUSTICE (FEDERAL BUREAU OF PRISONS), AGENCY.

Appeal No. 0120100078
Agency No. P20050167

On September 29, 2009, Complainant filed an appeal from the Agency's August 28, 2009, final decision 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.; and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. The agency is directed to comply with the ORDER below.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-7 Senior Correctional Office at the Agency's Federal Correctional Complex in Coleman, Florida. Complainant worked at the Coleman facility for ten years. The Coleman complex has five facilities including a low security facility, a medium security facility, and a penitentiary. During relevant period, Complainant worked at the penitentiary. On or about May 26, 2007, Complainant was separated from employment due to her disability retirement.

The record reveals that in April 2004, Complainant filed a prior EEO complaint against a Correctional Officer 1 (CO1). In the complaint, Complainant alleged that CO1 locked her in a tower, forced her to clean toilets, and would not allow her to leave until she finished. Complainant averred that the tower incident brought back difficult memories of physical, sexual and emotional abuse she suffered at the hands of her father. After the tower incident, she resumed counseling for Post Traumatic Stress Disorder (PTSD).1 

In January 2005, Complainant applied for, and was found qualified for the Senior Correctional Officer position. On March 2, 2005, the Warden announced the selectees for the position at an Annual Refresher Training course. Complainant was not selected. Complainant contacted an EEO Counselor and initiated this complaint alleging that at the meeting, the Warden announced that:
"people who file EEO complaints and people who do not have good rapport with Lieutenants, who called in sick all the time probably would not have been selected....Those people that filed EEO complaints don't get promoted and them (sic) file EEO complaints on the selection."

Complainant contended that she received "exceeds" or "outstanding" ratings on her recent performance appraisals, had more seniority, and was more qualified than others selected. One of Complainant's co-workers at the training stated that the Warden informed him that selections were based on the number of lieutenants you had in your back pocket, and that he "had to grease the wheel." The co-worker filed a union grievance, and an additional four more officers were promoted. The Warden retired on May 2, 2005.

The Warden explained to the EEO Counselor that he made the selections based on the input of Lieutenants. He selected the officers off the best qualified list who received the most votes. The Warden stated that Complainant did not receive any recommendations from her Lieutenants. Although the Agency's Investigator requested the Agency provide voucher sheets containing the "votes," none were supplied.

The Warden averred that Complainant was an "average" to "below average" Correctional Officer, and that she had taken a lot of sick leave. The Agency's investigator did not ask the Warden if he made the statement about how filing EEO complaints would hurt one's chances at promotion. The Warden denied knowledge of Complainant's prior EEO complaint.

Other testimony about Complainant's performance included statements from the Associate Warden who averred that Complainant was "opportunistic." Further, he stated that that she was not a "star employee."

Complainant alleged that she was harassed following the filing of her EEO complaint. In April 2005, she stated that she received e-mails about an upcoming program called "Jail and Bail," where Correctional Officers would be "hand cuffed, made to cry, taunted, teased and made to clean like orderlies." Complainant informed the Associate Warden and he told her to take sick leave. Complainant also alleged that a Lieutenant referred to her as "Rapunzel." Complainant alleged that as part of the harassment, CO1 ignored a distress call that Complainant made when a female visitor to the facility began screaming, crying and waving her hands in an assaultive posture.

In February 2005, she applied for a GS-9 Recreation Sports Specialist position so that she could get away from the environment. She alleged that she informed the Human Resource Specialist that she was being harassed at the facility, and that she requested to be placed into the position only at the Low security facility. Complainant averred that she asked for a reasonable accommodation. In response, the Human Resources Specialist stated that she did not recall such a request, although she averred that she stapled a note to Complainant's application indicating that Complainant only wanted to be considered for the position if it was at the Low facility.

Complainant was found qualified for the Recreation position, but was not selected. The three others found qualified were selected at the GS-5 and GS-07 levels. Although Complainant maintains she was more qualified than the others, the agency stated she was not the most qualified and that she was not chosen because she had restricted her application to only the Low facility. The agency's Human Resources Manager averred that employees must be able to work at all facilities in the complex.

On April 20, 2005, Complainant submitted a request for workmen's compensation to the Safety Manager. Complainant also provided a note from her psychiatrist which stated that she was suffering from PTSD and that she Complainant's prognosis was "good with continued mental health counseling [and that] appropriate corrective and remedial responses by her employer would also be beneficial in reducing her recently exacerbated symptoms of chronic PTSD." Complainant was referred to EAP, and the Safety Manager referred the matter to the Manager of Human Resources.

Complainant also alleged that in May 2005, CO1 made her wait 10 minutes when she requested equipment in the Control room, and further alleged that CO1 made her wait fifteen minutes before opening the Special Housing Unit salley-ports, so that she could not move between the locked grilles. This incident caused Complainant stress so she took sick leave for the remainder of the day. Complainant states that she reported the harassment, and stated that she was "terrified of this Officer and... scared that he will do something to endanger me at work."The next day, on May 18, 2005, Complainant was informed she could not return to work until her physician stated that she could perform the job. The agency then issued her a fitness for duty letter, which requested her prognosis and diagnosis.

The psychiatrist noted that "[Complainant] should not return to her current work setting due to apparently ongoing workplace sexual harassment and retaliatory actions against her by her current employer."Complainant did not return to work and ultimately retired on full disability in May 26, 2007.

On April 5, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (PTSD and of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. in March 2005, she was not selected for a GS-8 Senior Correctional Officer position;

2. she was subjected to harassment when the following occurred:
a. in April 2005, she was forced to use sick leave so she would not have to attend "jail and bail"
b. on May 17, 2005, she was locked in the sallyport;

3. on May 9, 2005, she was not selected for the Recreation Specialist position and

4. she was denied a reasonable accommodation when, on May 18, 2005, she was told she could not return to work until she underwent a fitness for duty examination (FFD).

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its decision, the Agency found the Warden was not truthful when he denied that he was aware of Complainant's prior EEO complaint, as the record from Complainant's prior complaint revealed evidence to the contrary. The Agency questioned the Warden's testimony that he relied on the vouchers because they were not in the record, so the votes could not be verified. The Agency found sufficient evidence establishing that the Warden made comments at the Refresher Training Course that indicated he considered non-merit based criteria when making his selections. However, the Agency did not agree with Complainant's claim that he based his decisions on Complainant's prior EEO activity. Rather, the Agency determined there was sufficient evidence supporting its claim that Complainant was not selected because her performance was not above average. It found that Complainant failed to provide sufficient evidence establishing, more likely than not, that the agency's reasons for not selecting Complainant were a pretext for discrimination or retaliation.

With respect to the nonselection for the Recreation Sports Specialist position, the Selecting Official averred he was unaware that Complainant filed an earlier EEO complaint, and unaware that she suffered from PTSD. The agency found it can choose among equally qualified candidates, as long as discrimination was not involved. The agency noted that although one of the candidates (female) had minimal recreation experience, there was no evidence that she was chosen because of a discriminatory or retaliatory motive.

As for her Failure to Accommodate claim, the agency assumed, without deciding, that Complainant's PTSD constituted a disability under our Regulations. The Agency noted that Complainant did not indicate on her application that she was seeking the Recreation Sports Specialist position as an accommodation. Further, the April 20, 2005 documentation from her psychiatrist did not make any request for accommodation or specific recommendations. Indeed, the agency found the only evidence of conversations about a request for reasonable accommodation happened in mid to late May 2005, after the position had already been awarded to others. By that time, however, Complainant's psychiatrist had documented that Complainant was unable to work at the facility at all.

The agency did not examine Complainant's claim of harassment.

The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the agency failed to accommodate her disability. She contends that the agency's shifting reason for her nonselection for the Recreation Sports Specialist position is evidence of pretext. Further, she states that the agency conducted an inadequate investigation, and failed to interview certain witnesses. She provided statements from other employees who witnessed the Warden's comments at the Refresher Training Course.

The agency did not respond to Complainant's appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

Senior Correctional Officer Promotion
Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing, Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

After a review of the record, we find Complainant established, more likely than not, that the agency's reasons for not selecting her to the Senior Correctional Officer position were a pretext to retaliate against her for filing a prior EEO complaint. The record reveals that Complainant filed a sexual harassment complaint when CO1 locked her in a tower and forced her to clean toilets. Moreover, the Agency acknowledged that the Warden was aware of Complainant's prior EEO activity, despite his testimony to the contrary.

Complainant averred that she heard the Warden specifically mention EEO complaints as a factor which would hamper one's promotion potential at the Refresher Training Course. She provided further testimony that supports her contention that the Warden did not want to select people for the position who had filed EEO complaints. Specifically, on appeal, a co-worker recounts that the during the announcement, the Warden stated, "officers who don't have more than one lieutenant in their hip pocket will not get promoted; officers who filed complaints on their supervisors or who call in sick shouldn't expect to be promoted..."Indeed, none of the individuals who were selected for the promotion had prior EEO activity. Notably, the Agency's Investigator never even questioned the Warden as to whether he made the comments about EEO activity.

We are also not persuaded by management's negative assessment of Complainant's performance. Complainant's most recent performance appraisal was comparable in all respects with the selectees' performance appraisals, as she received all "exceeds" and "outstanding" ratings. Indeed, her rating official noted, "[Complainant] has had an excellent year, and with her work habits and attitude the sky is the limit. Keep up the GOOD work."This documentary evidence is in direct conflict with the Warden, who the agency has already acknowledged has a credibility problem.

Although the Warden reported that he relied on the votes from Lieutenants, we cannot verify this because of the agency's failure to provide the votes or vouchering record. No explanation was provided, yet it appears vouchers were critical to the selections process. We note that EEOC Regulation 29 C.F.R. § 1602.14 provides that agencies must preserve any records pertaining to selections and promotions for a period of one year from the date of the making of the record or the personnel action, whichever comes later. The regulation also requires that once the complaint process is initiated, the agency is required to retain personnel records until a final disposition of the complaint. Because the agency has failed to comply with 29 C.F.R. § 1602.14, we take an adverse inference against the agency and find that had the missing records been preserved, they would have shown that the agency's explanations for why complainant was not selected for the position were not credible. See Cosentine v. Department of Homeland Security, EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000)).

Accordingly, we find Complainant has established that the Warden was aware of complainant's prior EEO activity, and that he harbored a retaliatory animus against those who engaged in EEO activity. Complainant has established that the agency's reasons for its actions were not truthful, but were a pretext to retaliate against her for having filed an EEO complaint. In order to remedy this matter, the agency is directed to comply with the order below.

Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. EEOC Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002, at 2 (Mar. 8, 1994). In determining whether an environment is "hostile" or "abusive," a trier of fact must consider all the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23.

After a review of the entire record, we find Complainant proved she also was subjected to a hostile work environment. Complainant contends that CO1 failed to respond to her distress call, ignored her at the equipment desk, and failed to open a locked door, which trapped her. The agency's investigator failed to ask CO1 about any of these incidents. One co-worker corroborated Complainant's claim that she was made to wait an unreasonable amount of time to get her equipment.

The facility's new Warden averred that once Complainant complained to management about these incidents, an investigation was conducted and the allegations were not sustained. Management averred that an investigation revealed that a Lieutenant did in fact respond to the duress call, and that Complainant was required to remain at the door for only a few extra minutes. However, there are no documents supporting this testimony in the record from the investigation into Complainant's claims. There is no testimony from any witnesses to these events. One individual averred that it was another co-worker (CO2), not CO1, who was responsible for the failure to open the locked door, but there is no testimony from that CO2, who was a witness to the event.

Complainant also alleges she was harassed when she received emails about the "Jail and Bail" event which was part of Correction Officer's Week. During "Jail and Bail," e-mails announcing this event stated that staff would be "hand-cuffed, made to cry, taunted, teased and made to clean like orderlies."Complainant informed the Warden that she did not wish to participate, and the agency informed her she could take sick leave on that day. However, Complainant continued to receive e-mails about the event. Complainant stated that a Lieutenant threatened her: "you chose to take your complaint outside the house, now you have to suffer the consequences."This testimony was unrebutted, as the Agency never secured an affidavit from the individual who made the remark.

In light of the allegations, and the agency's failure to secure relevant affidavits and documents, we find the evidence in the record supports Complainant's version of the events. An agency is responsible for acts of harassment in the workplace by complainant's co-workers where the agency knew (or should have known) of the conduct and failed to take immediate and appropriate corrective action. Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors EEOC Notice No. 915.002 (June 18, 1999); see Policy Guidance on Current Issues of Sexual Harassment (March 19, 1990); Villanueva v. Department of Homeland Security, EEOC Appeal No. 01A34968 (August 10, 2006). In light of the agency's failure to provide any credible testimony or documentation supporting its position that it investigated the matter, we find the agency failed to establish that it conducted an appropriate investigation that would stop and remedy the harassment.

After a review of the record, we find Complainant established, more likely than not, that these incidents occurred as she alleged, and that they rose to the level of a hostile work environment. The conduct was offensive and interfered with Complainant's work performance. The failure to respond to Complainant's duress call was physically threatening. The agency failed to establish that it took prompt remedial action to stop and remedy the harassment. Therefore, in order to remedy the harassment, the agency is directed to comply with the order below.

Not Selected for Recreation Sports Specialist position/Failure to Accommodate

The Rehabilitation Act prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 16302(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance. Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) ("Enforcement Guidance"). 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. See 29 C.F.R. §§ 1630.2 (o) and (p).

Complainant contends that she spoke with the Human Resources Specialist and informed her that she was being harassed, and requested that she be placed only at the Low Facility as Recreation Sport Specialist. After a review of the record and assuming Complainant is an individual with a disability, we do not find sufficient support for Complainant's contention that she requested a reasonable accommodation for her disability. The Human Resources Specialist averred she does not recall the conversation about Complainant being harassed, but does admit that Complainant requested to work only at the Low facility. However, we do not find sufficient evidence that supports Complainant's claim that she requested an accommodation for her disability during that meeting. Nothing in Complainant's note from her psychiatrist requests an accommodation either; it only vaguely refers to "corrective and remedial responses from her employer."

Moreover, we find that by May 18, 2005, Complainant was no longer a qualified individual with a disability. Complainant's psychiatrist noted that by this time Complainant could no longer work in the facility. The new Warden testified that during a subsequent conversation, he asked Complainant if she could come back to work, and he avers that Complainant did not respond affirmatively. (Supplemental Report of Investigation at Exhibit 7). Even when she was questioned by the Agency Investigator as to whether she could come back and work, Complainant did not confirm that she was able to work at the facility, or any other facility.

Finally, we find no support for Complainant's claim that she was not selected for the Recreation Sport Specialist position due to her prior EEO activity or her sex. Complainant failed to present any evidence which would support an inference of discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the agency's final action in part, and AFFIRM the agency's final action in part. The agency is directed to comply with the ORDER below:

ORDER (D0610)

The Agency is ordered to take the following remedial action:

1. Within thirty (30) days from the date this decision becomes final, the agency shall offer Complainant promotion to the GS-8 Senior Correctional Officer position, or a substantially equivalent position, retroactive to the March 2, 2005, the date of the selection. The offer shall be made in writing. Complainant shall have 15 days from receipt of the offer to accept or decline the offer. Failure to accept the offer with 15 days will be considered a declination of the offer unless complainant can show that circumstances beyond her control prevented a response within the time limit.

2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits (salary increases, seniority, retirement benefits, etc.) due Complainant, from March 2, 2005 until May 26, 2007, (the date of her retirement), 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 60 days of the date this decision becomes final, the Agency shall conduct an expedited supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory action. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later man 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein;

4. The agency shall post a notice in accordance with the paragraph below;

5. The agency shall pay attorney's fees in accordance with the paragraph below;

6. The agency shall provide a minimum of sixteen (16) hours of training to the Warden, supervisors, and all other personnel who direct the work of others at the facility in the laws prohibiting employment discrimination, paying particular attention to retaliation and harassment.

7. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible officials, including the Warden, CO1, and the other co-workers responsible for the harassment. 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 for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.

8. 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 backpay and other benefits due Complainant, including evidence that the corrective action has been implemented.

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 (T0610)

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 (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

February 16, 2012

1. The record contains no information on the status or outcome of the prior complaint.