Brenda J. Lamb,
Complainant,

v.

Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120103232

Agency No. PHI-08-0694-SSA

DECISION

On July 22, 2010, Complainant filed an appeal from the Agency’s June
21, 2010, 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 accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).

ISSUES PRESENTED

The issue presented herein is whether the Agency violated the
Rehabilitation Act and Title VII when Complainant was denied a reasonable
accommodation and subjected to disparate treatment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked
as an Administrative Assistant at the Agency’s Office of Disability
of Adjudication Review, Hearing Office in Morgantown, West Virginia.
The record indicated that Complainant has served in this position since
1998.  From 2002, Complainant worked under the Administrative Law Judge
(ALJ) who served as the Hearing Office Director until his promotion to
ALJ in August 2008.  At that point, a new Hearing Office Director was
promoted and served as Complainant’s immediate supervisor (Supervisor).

The record indicated that Complainant was diagnosed with depression,
seasonal affective disorder, sleep apnea, extreme hair loss, obesity,
and carpal tunnel in her left arm.  The record also indicated that
Complainant has a congenital missing right forearm/hand.   The record
indicated that Complainant initially requested a reasonable accommodation
in 2004.  As part of Complainant’s treatment for depression and obesity,
Complainant was directed to vigorously exercise for one hour and 15
minutes every morning.  Based on her morning exercise and the extra time
required due to her missing right hand and carpal tunnel in her left
hand, it takes Complainant longer to get ready for work.  She could not
report to work by 9:30 a.m., the beginning of the office’s core hours.
Complainant requested an accommodation in 2004 which was denied by her
supervisor at the time who was the ALJ in June 2004.  Despite the denial
of an accommodation, the ALJ permitted Complainant to earn compensatory
time from 6:30 to 7:00 p.m. on weekdays.  Complainant would provide
a leave slip using credit time from 9:30 a.m. to 10:00 a.m. each day.
Based on this arrangement, Complainant was permitted to report to work
at 10:00 each day and work until 7:00.

In July 2008, Complainant met with the Supervisor in anticipation of
the change in leadership in the office.  At that meeting, the Supervisor
informed Complainant that, beginning in August 2008, Complainant would
no longer be permitted to work her flexible schedule and was expected
to arrive at work by 9:30 a.m.  Complainant was also required to fill
out a request for reasonable accommodation form.  Complainant did so on
July 24, 2008, asking to allow for flexibility in her schedule to arrive
by 10:00 a.m., so that she could exercise in the morning to combat her
depression.  The request was denied by the Supervisor on August 1, 2008.
The Supervisor noted on the form that the request was denied because
Complainant could “exercise in the evening” and that she had a three
hour flexible window in which to arrive each day.  The Supervisor believed
that flexibility already existed and Complainant could have arrived
between the hours of 6:30 a.m. and 9:30 a.m.  The Supervisor noted that
if Complainant arrived at 10:00 a.m., she would leave after 6:00 p.m.
This would leave Complainant alone in the office creating a potential
security issue.

Complainant submitted additional medical documents in August 2008,
regarding her request.  By memorandum dated April 6, 2009, the Regional
Management Officer formally notified Complainant that her request for
reasonable accommodation was denied.  During this time, Complainant
indicated that she was no longer permitted to earn credit time or
overtime.  The Supervisor indicated that overtime was a limited resource
and that Complainant could not use such time to perform administrative
tasks.

In addition to the issues related to Complainant’s request for
reasonable accommodation, Complainant indicated that, on June 23, 2008,
she learned that her co-workers received a group award and she did not.
Further, in early July 2008, management did not select Complainant to
receive training and instead made the training available to another
co-worker.

Based on these events, Complainant contacted an EEO Counselor.  When the
matter could not be resolved informally, on November 19, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against her
on the bases of race (Black), disability (depression, anxiety, seasonal
affective disorder, sleep apnea, extreme hair loss, obesity, carpal
tunnel in her left arm, and congenital missing right forearm/hand),
and reprisal for prior protected EEO activity under Section 501 of
the Rehabilitation Act of 1973.  The Agency accepted the complaint and
defined the claims as the following:

1. In August 2008, management rescinded the reasonable accommodations that
allowed her to work a flexible schedule from 10:30 a.m. to 7:00 p.m.;1

2. On July 25, 2008, management did not allow her to work compensatory
time and prohibited her from working overtime;

3. After June 23, 2008, she learned that she was not included in a group
award that was given to most of her co-workers; and

4. She was not selected to receive training that would have qualified
her to serve as back-up to the Hearing Office System Administrator.
Complainant indicated that she learned of this in early July 2008,
when management made the training available to her coworker, and not her.

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).  In accordance
with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b).  The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as
alleged.

As for claim (1), the Agency indicated that it had provided Complainant
with an effective accommodation.  We note that in its decision, the Agency
did not discuss whether Complainant was an individual with a disability
under the Rehabilitation Act.  The Agency stated that Complainant sought a
work schedule that allowed for flexibility or a fixed schedule from 10:00
a.m. to 6:30 p.m. to allow her to exercise in the mornings and provide her
with the extra time she needed to prepare for work due to her right hand
and her carpal tunnel.  The Agency determined that management already
provided Complainant with flexibility with a schedule as late as 9:30
a.m. and the use of leave in any form.  Further, the Agency found that to
provide Complainant with a later schedule created an undue hardship and a
direct threat of harm to Complainant because she would be departing after
all other staff had left.  Thereby, the Agency argued, Complainant created
a security risk by leaving late.  Accordingly, the Agency concluded that
it had provided Complainant with an effective reasonable accommodation.

As for claims (2) – (4), the Agency found that it provided legitimate,
nondiscriminatory reasons for its actions.  The Agency noted that
overtime and compensatory time were only allowed for employees
doing “production” work; that the award was given to a group of
employees who worked on a special project and Complainant did not work
on that project; and that the training was offered to the Co-worker
because Complainant was not in the office.  The Agency determined that
Complainant failed to show that alleged actions were taken based on her
protected bases.  As such, the Agency concluded that Complainant failed
to establish her claims of disparate treatment.

CONTENSIONS ON APPEAL

Complainant appealed asserting that her position did not require her
to work during the core hours of 9:30 a.m. and 6:00 p.m.  Further, she
stated that the Agency had granted a de facto reasonable accommodation
by the ALJ allowing her the flexibility to earn and use credit time.
As such, she requested that the Commission find the Agency violated
the Rehabilitation Act in denying her a reasonable accommodation.
In addition, Complainant noted that she has been denied promotions,
training and awards due to her disability.  In response to the appeal,
the Agency provided a copy of the complaint file without comment as to
Complainant’s appeal itself.

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”).

Claims (1) and (2)

Upon review of the record, we find that claims (1) and (2) were improperly
treated as two separate claims.  The record indicated that from July 2004,
the ALJ provided Complainant with the flexibility to earn and use credit
time so that she worked from 10:00 a.m. to 6:30 p.m.  In July 2008,
when the Supervisor met with Complainant, Complainant was no longer
permitted the flexibility that was granted by the AJL to accommodate her
medical conditions.  Instead, Complainant was required to start work at
9:30 a.m. and was no longer permitted to earn credit time, compensatory
time, or overtime.  We find that claims (1) and (2) are part of a single
claim of denial of reasonable accommodation, not two separate claims.

Under the Commission's regulations, an agency is required to make
reasonable accommodation to the known physical and mental limitations
of an otherwise qualified individual with a disability unless the Agency
can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9.


Individual with a Disability

This case arose before January 1, 2009, the effective date of the
Americans with Disabilities Act Amendments Act of 2008 (ADA Amendments
Act), which made an umber of significant changes to the definition
of “disability” under the Americans with Disabilities Ace (ADA)
and the Rehabilitation Act.  Because this matter occurred in 2008, the
Commission will use the analytical framework as it existed before the
enactment of the ADA Amendments Act to determine whether Complainant is
an “individual with a disability.”

Under the pre-ADA Amendments Act framework, Complainant, to be entitled
to a reasonable accommodation, must show that she is an individual
with a disability, within the meaning of the Rehabilitation Act. An
individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has a record of such impairment; or (3) is regarded as having such
impairment. 29 C.F.R. § 1630.2(g).

As noted above, Complainant has a number of conditions including
congenital right fore-arm, carpal tunnel in her left arm and hand,
sleep apnea, extreme hair loss, anxiety, and depression. Complainant’s
medical documentation showed that Complainant was required to exercise
each morning for over an hour to combat her depression.  The medical
evidence indicates that the depression caused lack of concentration,
headaches and insomnia.  Complainant was born with a missing right hand
and has relied on her left hand.  Complainant has developed carpal tunnel
in the left hand which has manifested itself as numbness and tingling
sensation that radiates up her arm and into her shoulder.

We note that Complainant’s congenital condition of her right hand
constitutes a targeted disability.  The Commission has defined targeted
disabilities to include the following disabilities: deafness, blindness,
missing extremities, partial paralysis, complete paralysis, convulsive
disorders, mental retardation, mental illness, and genetic and physical
conditions affecting limbs and/or spine. See EEOC Management Directive
715 (MD-715), App. A.  As such, we determine that Complainant is an
individual with a disability.

	Denial of Reasonable Accommodation

The record indicated that Complainant, due to the combination of her
medical conditions, required flexibility in the workplace to allow her to
begin her work day at 10:00 a.m.  The record showed that she was required
to work out every morning to combat her depression.  Following her
workout, Complainant indicated she required additional time in order to
get ready in the morning.  She noted that the additional time was because
of her missing right limb and carpal tunnel in her left arm and hand.
As such, Complainant requested that she be allowed flexibility in morning
start time.

In its decision, the Agency found that it provided Complainant an
effective reasonable accommodation in that she could arrive at work
between the hours of 6:30 a.m. and 9:30 a.m. We disagree.  In her
request for reasonable accommodation dated July 24, 2008, Complainant
asked management for flexibility so that she may exercise per her
doctor’s orders in the morning for an hour and 15 minutes; get ready
for work; and arrive at work at 10:00 a.m.  We note the that the record
established that Complainant merely asked that she be provided with
the same flexibility she has received for four years since July 2004.
Since that time, the ALJ allowed Complainant to earn credit time from
6:30 p.m. to 7:00 p.m. which Complainant could use from 9:30 a.m. to
10:00 a.m.  Requiring Complainant to come in by 9:30 a.m. does not
provide Complainant with any accommodation.  As such, we find that the
Agency failed to provide Complainant with an effective accommodation
when it did not allow her to continue to earn and use credit time so
that Complainant could work from 10:00 a.m. to 6:30 p.m.

The Agency raised the affirmative defense that Complainant posed a
direct threat to herself. An employer may require, as a qualification
standard, that an individual not pose a direct threat. A “direct
threat” is defined as a “significant risk of substantial harm”
that cannot be eliminated or reduced by reasonable accommodation. 29
C.F.R. § 1630.2(r).  The Agency has the burden of proof regarding
whether there is a significant risk of substantial harm. See Massengill
v. Dep’t of Veterans Affairs, EEOC Appeal No. 01964890 (July 14, 2000).
A determination as to whether an individual poses such a risk cannot be
based on an employer's subjective evaluation or, except in cases of the
most apparent nature, merely on medical reports. See Selix v. U.S. Postal
Service, EEOC Appeal No. 01970153 (March 16, 2000).  Rather, after
identifying the risk, the employer must conduct an individualized
assessment of the individual that takes into account: (1) the duration
of the risk; (2) the nature and severity of the potential harm; (3)
the likelihood that the potential harm will occur; and (4) the imminence
of the potential harm. 29 C.F.R. § 1630.2(r). This assessment must be
based on objective evidence, not subjective perceptions, irrational
fears, patronizing attitudes, or stereotypes about the nature or
effects of a particular disability or of disability generally. Boots
v. U.S. Postal Service, EEOC Petition No. 03A40060 (December 13, 2004).
Relevant evidence may include input from the individual with a disability,
his work history or experiences in previous positions, and opinions of
medical doctors who have expertise in the particular disability or direct
knowledge of the individual with a disability. Id. If it is determined
that an individual does pose a direct threat because of his or her
disability, the employer must determine whether a reasonable accommodation
would eliminate the risk of harm or reduce it to an acceptable level. Id.

As noted above, the Agency asserted in its FAD that management claimed
that Complainant could not work after 6:00 p.m. because she would be
the only employee left in the building.  Therefore, management believed
that this created a security risk.  The Commission is not persuaded by
management’s assertions of direct threat.

In addition, the Agency asserted that providing Complainant with a
work schedule beginning at 10:00 a.m. constituted an undue hardship.
An undue hardship must be based on an individualized assessment of current
circumstances that show that a specific reasonable accommodation would
cause significant difficulty or expense.  EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans With
Disabilities Act, No. 915.002 (revised October 17, 2002).

As noted above, Complainant has been arriving at work at 10:00 a.m.,
since July 2004.  There has been no indication that, over the four
years, Complainant’s schedule created an undue hardship for the
Agency or that Complainant was in any threatening situation.  As such,
we conclude that the Agency violated the Rehabilitation Act when, in
July 2008, Complainant was required to arrive at work by 9:30 a.m. and
not permitted to earn or use credit time.

Claims (3) and (4)

A claim of disparate treatment based on indirect evidence is examined
under the three-part analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).  For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action.  McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978).  The burden then shifts
to the agency to articulate a legitimate, nondiscriminatory reason for
its actions.  Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).  Once the agency has met its burden, the complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima facie
case, need not be followed in all cases.  Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action at
issue, the factual inquiry can proceed directly to the third step of the
McDonnell Douglas analysis, the ultimate issue of whether complainant
has shown by a preponderance of the evidence that the agency’s actions
were motivated by discrimination.  U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp.,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health
and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington
v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Upon review of the record, we find that the Agency articulated legitimate,
nondiscriminatory reasons for the actions taken with claims (3) and
(4).  Management indicated that Complainant was not in the group which
was given the award.  As for claim (4), the ALJ averred that he provided
Complainant’s name and the Co-worker’s name for the training at issue.
He was informed that all the slots were taken and neither Complainant
nor the Co-worker would receive the training.  The ALJ was given last
minute notice that a slot became available for training and he had to
give a name right way so that arrangements for travel including hotel
reservations could be made.  The ALJ stated that Complainant was not at
work on that day; therefore, he provided the Co-worker’s name for the
open slot for training.  We find that the Agency has provided legitimate,
nondiscriminatory reasons for its actions.

Complainant merely asserted without evidence that she has been denied
the awards for three years.  Complainant failed to address the Agency’s
reasons as to claim (3).  As to claim (4), Complainant corroborated the
ALJ’s reason for naming the Co-worker for training.  Complainant does
not provide any evidence or argument to establish that the ALJ’s reason
for claim (4) was pretext.  Determining that Complainant has failed to
show that the Agency’s reasons for claims (3) and (4) were pretext,
we conclude that Complainant has not shown that the Agency discriminated
against her as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD
finding of no discrimination as to claims (3) and (4).	However, we
REVERSE the FAD with regard to claims (1) and (2) and REMAND the matter
in accordance with the ORDER below.

ORDER (D0610)

The Agency is ordered to take the following remedial action:

1. The Agency shall provide Complainant with a reasonable accommodation
in the form of flexibility of work schedule and of earning and using
credit time allowing Complainant to work from 10:00 a.m. to 6:30 p.m.

2. The Agency shall restore any leave used by Complainant due to the
Agency's failure to provide her with a reasonable accommodation.

3. Within fifteen (15) calendar days of the date this decision becomes
final, the Agency shall give Complainant a notice of her right to submit
objective evidence (pursuant to the guidance given in Carle v. Dep’t
of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support
of her claim for compensatory damages within fortyfive (45) calendar
days of the date Complainant receives the Agency’s notice. The Agency
shall complete the investigation on the claim for compensatory damages
within forty-five (45) calendar days of the date the Agency receives
Complainant’s claim for compensatory damages.  Thereafter, the Agency
shall process the claim in accordance with 29 C.F.R. § 1614.110.

4. The Agency shall provide training to the Supervisor regarding her
responsibilities with respect to eliminating discrimination in the federal
workplace. The training must emphasize the Agency's obligations under
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq., and in particular, its duties
regarding reasonable accommodation.

5. The Agency shall consider taking appropriate disciplinary action
against the Supervisor.  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).

6. The Agency shall complete all of the above actions within 120 calendar
days from the date on which the decision becomes final.

7. 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 leave due Complainant, including evidence that
the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Office of Disability of Adjudication
Review facility 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 (H0610)

If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e).  The award of attorney's fees shall be paid
by the Agency.	The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final.  The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (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:


______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat

March 21, 2012

__________________
Date


1 We note that the Agency defined the schedule as 10:30 a.m. to 7:00
p.m.; however, the record indicated that Complainant’s requested a
fixed schedule from 10:00 a.m. to 6:30 p.m. as a reasonable accommodation.
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