Marguerite L., Complainant v. Arne Duncan, Secretary, Department of Education, Agency. Appeal No. 0120120836 Hearing No. 570-2010-00274X Agency No. ED-2009-18-00 DECISION Complainant timely filed an appeal from the Agency's October 31, 2011, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The appeal is accepted 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 order. ISSUES PRESENTED The issues presented before the Commission on appeal are: 1. Whether an EEOC Administrative Judge's (AJ) decision to issue a decision without a hearing was proper in this case; and 2. Whether Complainant was discriminated against based on sex (female), age (61) and/or retaliation when: a. Her request to change her 2007 fiscal year performance rating from "Successful" to "Outstanding" was denied; b. She was not selected for the Education Program Specialist (GS-14) position announced in Vacancy Nos. OESE-2008-0019 and OESE-2008-0020,1 and the Analyst (GS-14) position announced in Vacancy No. OESE-2009-0029; and c. Her assigned duties were altered or changed. BACKGROUND During the period at issue, Complainant worked as an Education Program Specialist, GS-13, at the Agency's Office of Elementary and Secondary Education located in Washington, DC. On March 26, 2009, she filed an EEO complaint alleging discrimination regarding what has been identified as Issue 2 in the "Issues Presented" section above. The Agency accepted the Complainant for investigation and, at the conclusion thereof, provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an AJ or, alternately, a decision from the Agency based on the ROI. Complainant requested a hearing. Thereafter, her case was forwarded to the appropriate EEOC District Office and assigned to an AJ. In reviewing this matter, the AJ found the following enumerated facts: 1. Complainant (61 year old female with prior EEO activity) is an employee within the Agency's Office of Elementary and Secondary Education (OESE). 2. Prior to December 2008, Complainant worked in the Monitoring and Audits Group for the Student and Student Achievement (SASA) office. SASA is a subdivision of OESE. 3. Complainant is an Education Program Specialist, GS-13. 4. From 2001 to June 2008, Complainant was supervised by [Supervisor 1 (S1)], a male with prior EEO activity. 5. S1 was Complainant's supervisor during the time she filed an EEO complaint with the [Agency's EEO office]. 6. S1 gave ... performance assessments to the employees he supervised at the end of each fiscal year. 7. The five ... performance assessment rating categories [we]re: Outstanding, Highly Successful, Successful, Minimally Successful and Unacceptable. 8. Bonuses are tied to performance ratings at the [Agency]. 9. From 2003 to 2007, S1 gave "Outstanding" performance assessment ratings to female employees, employees over the age of 40, and employees with prior EEO activity. 10. During 2006, S1 gave a female employee older than Complainant a higher performance rating than he gave Complainant. 11. During 2005, S1 gave a female employee younger than Complainant a lower performance rating than he gave Complainant. 12. S1 was Complainant's supervisor for two-thirds of fiscal year 2008. 13. During 2004, Complainant received a rating of "Outstanding." 14. During 2005, Complainant received a rating of "Highly Successful." Complainant unsuccessfully appealed this rating. 15. [Supervisor 2 (S2)] became Complainant's supervisor during 2008 and currently holds the position of Monitoring Group Leader in SASA. 16. S2 is a 60 year old female with prior EEO activity. 17. S2 prepared Complainant's fiscal year 2008 ... performance assessment with input from S1. 18. S2 gave Complainant a "Successful" rating for fiscal year 2008. Complainant unsuccessfully appealed the rating. 19. [The Director] is Complainant's second-level supervisor and currently holds the position of Director of SASA. 20. The Director is a 56 year old male with prior EEO activity. The Director was the approving official for Complainant's fiscal year 2008 ... performance assessment. 21. Complainant's 2007 ... [performance] review stated that her work needed extensive review and correction. 22. Complainant wrote the initial draft of Section 3.6 of the Nebraska Monitoring Report in 2007. The draft was completely rewritten by a co-worker. 23. Complainant applied and interviewed for Vacancy Announcements OESE-2008-0019 and OESE-2008-0020. The announcements were for the same position, accept one was an internal announcement (0019) and one was not (0020). S1 was the selecting official for both announcements. 24. The Director was the approving official for both announcements. 25. The interview panel members for both announcements were Person A (61 year old male with prior EEO activity), Person B (36 year old female with no prior EEO activity), Person 3 (59 year old female with no prior EEO activity) and S1. 26. The interview panel members interviewed four people for the vacancy announcements. They asked all candidates the same questions. The questions were relevant to the position. 27. Some of the panel members felt that experience at the state and local level[s were] important. 28. The selective factor for the vacancy announcements was that applicants needed an understanding of and experience in the audit resolution process specific to issues under Title I. 29. Vacancy announcement OESE-2008-0020 stated that the selectee would provide guidance to department and state officials in planning and consultant services to top level officials [within the Agency], state and local agencies, institutions and organizations. The announcement did not require teaching experience. 30. The interview panel had incomplete application packages for some of the candidates, including Complainant. 31. [Selectee 1], 44 year old male with no prior EEO activity, was selected for Vacancy Announcement [No.] OESE-2008-0020. Selectee 1's prior federal services allowed him to apply for the position on the Merit Promotion Certificate. 32. Both S1 and Person C believed that Selectee 1 performed better than Complainant during the interview. 33. Employee A, a GS-14 employee assigned to work in the Policy Group, resigned during August 2008. 34. Complainant applied for the Analyst (GS-14) position in Vacancy Announcement OESE-2009-0029. Person D (54 year old female with prior EEO activity), Group Leader of the Policy Group in SASA, was the selecting official. 35. The interview panel members for Vacancy Announcement OESE-2009-0029 were Person E (62 year old male with prior EEO activity), Person F (45 year old male with no prior EEO activity) and Person D. 36. The selection criterion for Vacancy Announcement OESE-2009-0029 was experience with managing large databases, developing policy options and recommendations, and experience with policy development. The selective factor was that applicants must have experience conducting policy analysis and statistical analysis of quantitative data and using such analyses in the development of regulations, guidance, and in the implementation of the Title I formula. 37. [Selectee 2] (39 year old male with no prior EEO activity) was selected for Vacancy Announcement OESE-2009-0029. Selectee 2 had experience with the Title I formula and using the software program for the Policy Group's databases. Selectee 2 also had experience using four different statistical software programs. 38. Complainant did not have experience using the software program for the Policy Group's database and had experience with only one statistical software program. 39. SASA was reorganized in December 2008 and the Monitoring and Audit group was divided into the Audit Monitoring Group and the Audit Resolution Team. The Audit Resolution Team was placed under the Immediate Office of the Director. Complainant was reassigned to the Audit Resolution Team. 40. Complainant was issued a new Position Description. Her GS-13 salary remained unchanged and her benefits were unaffected. 41. Complainant was working on audits prior to the change in her Position Description. 42. Four employees in the SASA in addition to Complainant had their position descriptions changed after the 2008 reorganization. See Administrative Judge's September 30, 2011, Decision (AJ Decision) at 2-4. After making these findings and over Complainant's objections, the AJ granted the Agency's Motion for Summary Judgment and issued a decision without a hearing in which he found Complainant failed to prove discrimination as alleged. The Agency subsequently issued a final order, which adopted in full the AJ's decision. Complainant thereafter filed this appeal. CONTENTIONS ON APPEAL Both parties' contentions on appeal merely reargue their respective cases-in-chief. As such, they will not be restated here nor addressed separately in this decision. Instead, they are inherently considered in the "Analysis and Findings" section below. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them applying a de novo standard of review. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). This means we must examine this case anew or with fresh eyes. See id. at Chapter 9, § VI.A. (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"). ANALYSIS AND FINDINGS 1. Decision without a Hearing We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on the record in this case. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his [or her] opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After reviewing the record in this case, we find that the record is adequately developed, that no genuine issues of material fact remain, and that no fact-finding is necessary. We also find Complainant was given ample notice, a comprehensive statement of the undisputed facts, and the opportunity to respond. Thus, we have no reason to disturb the AJ's decision to issue a ruling without a hearing. 2. Sex, Age, and Reprisal Discrimination In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a disparate treatment case is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must 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 actions. McDonnell Douglas, 411 U.S. at 802. Second, the Agency must articulate legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). And third, if the Agency is successful, then Complainant must prove by preponderant evidence that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. Concerning Complainant's 2007 performance rating, nonselection for the position announced in Vacancy Announcement No. OESE-2009-0029, and changed or altered duties, we assume that Complainant has established prima facie cases of sex, age, and reprisal discrimination.2 a. Performance Rating Regarding Complainant's 2007 fiscal year performance rating, the Agency stated that Complainant was issued a "Successful" rating instead of "Outstanding" because her work required extensive review. To support this, the Agency provided an email from the relevant time period from a co-worker indicating that Complainant's work had to be entirely rewritten. See ROI at Exhibit (Ex.) C. Based on this, the AJ found that the Agency had met its burden of stating a legitimate, nondiscriminatory reason for refusing to change Complainant's 2007 fiscal year performance rating from "Successful" to "Outstanding." We agree. In considering the information Complainant provided to prove that the Agency's stated reason was a pretext for discrimination, the AJ found that Complainant offered no specific evidence showing that her work did not require extensive review or correction. To the contrary, she offered statements indicating that she omitted a provision from a monitoring report that probably should have been included. See ROI at Ex. E. We agree that Complainant's offers no more than vague assertions to show pretext. However, such statements and speculation, without more, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). We therefore find that the AJ's findings of fact regarding this allegation are supported by a de novo review of the record, and that Complainant has failed to meet her ultimate burden to show that the 2007 fiscal year performance rating in dispute was discriminatory. b. Nonselections Vacancy Announcement Nos. OESE-2008-0019 & 0020 To establish a prima facie case of discrimination based on sex or age complainant must show: (1) that she is a member of the relevant protected groups; (2) that she was adversely affected by an agency personnel decision, action, or change; and (3) that she was treated less favorably than similarly situated individuals outside her group or, in the alternative, that there is some other evidence raising an inference of discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September 18, 1996). And to establish a prima facie case of reprisal, Complainant must show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). Complainant has established that she was a 61 year old female who had previously engaged in protected activity during the time she was not selected for the position announced in Vacancy Nos. OESE-2008-0019 and OESE-2008-0020. She has also established that the Agency was aware that she had engaged in prior EEO activity.3 Further, she has established that the person selected for the position was a 44-year old (or significantly younger) male with no prior EEO activity. We therefore find that Complainant has established prima facie cases of discrimination based on sex, age, and reprisal. Because Complainant has established successfully a prima facie case of discrimination we turn our attention to the Agency's legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. The AJ found that Complainant was not selected for the position at issue because S1 attested that Selectee 1's interview was superior to that of Complainant's. The AJ further found that S1 attested that Selectee 1 had experience at the federal and state education levels and "had experience developing determination letters at the federal level and preparing state responses and corrective actions which gave him at a better understanding of the audit process from both [the federal and state levels]." See AJ Decision at 6. We find that this proffered reason is legitimate and nondiscriminatory. In so doing, we note that the AJ also found that S1 had interview notes when making his decision as to whom to hire but failed to retain them. Id. at 7. Complainant must now show that the reasons provided by the Agency (or attested to by S1) were a pretext for discrimination. The Agency's main reason for Complainant's nonselection appears to be that Selectee 1 performed better than Complainant during the interview. Yet, the Agency was unable to produce interview notes. For her part, Complainant highlighted evidence showing that the Agency's Human Resources Office rated her more qualified than Selectee 1 (by almost 10 percentage points) for the position at issue. See ROI, F20d; see also ROI, F20e. Information obtained from the ROI indicates that two of the four persons on the interview panel for the position expressed concern that prior EEO activity may be a factor in Agency decisions. One of those individuals also stated that she heard or observed instances she believed was retaliatory; the other stated he believed there was a cloud over the Agency regarding age discrimination. A third expressed ambivalence. Only S1, the sole selecting official and also a member of the interview panel, stated categorically that Complainant's sex, age, or prior EEO activity was not a factor in his decision to select someone other than Complainant for the position. Based on documentary and testimonial evidence contained in the ROI, we find that Complainant has met her burden to show that it is more likely than not that her nonselection was motivated by discriminatory animus. Vacancy Announcement No. OESE-2009-0029 The Agency stated that Selectee 2 was selected for the position at issue because he had more experience with the Title I formula and the particular software program used by the Agency. The Agency further stated that Selectee 2 had experience using four different statistical software programs whereas Complainant had experience with only one. These reasons are supported by documentary evidence in the record. We find, as did the AJ, that by providing this information the Agency has met its burden of stating a legitimate, nondiscriminatory reason for its decision to not select Complainant for this position. To meet her burden to show pretext, Complainant argues that Selectee 2 was preselected for the position because the Agency tailored the position description to match his qualifications. Assuming preselection, the AJ found there was no evidence which establishes Selectee 2's selection was not based on his qualifications. And as the Commission has held, preselection does not establish discrimination as a matter of law when the selection itself is based on the qualifications of the selected individual and not discriminatory animus. See McAllister v U.S. Postal Serv., EEOC Request No. 05931038 (Jul. 28, 1994). Other than her allegation of preselection, Complainant offered no specific evidence showing that her qualifications were plainly superior to those of Selectee 2. We therefore find that the AJ's ruling regarding the job advertised in OESE-2009-0029 is supported by a de novo review of the record. Thus, her claim of discrimination fails. c. Altered or Changed Duties The Agency stated that Complainant's duties were altered or changed due to a reorganization of the office in which she worked. The Agency further stated that all employees in Complainant's office except one had their duties changed in some respect. We find, as did the AJ, that the Agency has met its burden of stating a legitimate, nondiscriminatory reason. In order to meet her burden of pretext, Complainant argues that after the altering of her duties, she was required to perform integrating and auditing duties which had previously been performed by a GS-14 level employee, yet the Agency retained her at the GS-13 pay rate. The AJ found that the only new duty that Complainant specifically named, that is, tracking audit resolution process and due dates, had been previously performed by a GS-14 level employee. The AJ found this argument to be insufficient to demonstrate discrimination. We find that the AJ's finding is supported by a de novo review of the record, and also find that Complainant has failed to meet her burden to show that the Agency's stated reason for altering or changing Complainant's duties is a pretext concocted to mask discriminatory animus based on her sex, age, and prior EEO activity. CONCLUSION After a thorough review of the record and contentions on appeal, including those not specifically addressed herein, we find that the AJ's decision to issue a ruling without a hearing was proper in this case. We further find that the AJ's findings of fact and ultimate legal conclusions regarding Complainant's 2007 performance appraisal, the position announced in OESE-2009-0029, and Complainant's changed or altered duties are supported by a de novo review of the record. Those findings are therefore upheld. However, we also find that the AJ's ultimate finding of no discrimination with respect to the position announced in OESE-2008-0019 and OESE-2008-0020 is not supported by our de novo review of the record. We hereby AFFIRM in part and REVERSE in part the Agency's final decision. As such, the Agency is ordered to take action in accordance with this decision and the order below. ORDER (1) Within 60 days of this decision becoming final, the agency shall offer Complainant the position announced in OESE-2008-0019 OESE-2008-0020, or a substantially equivalent position at the Agency's Education Office of Elementary and Secondary Education in Washington, District of Columbia or at an installation of Complainant's choice. Complainant shall be given 15 days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the 15-day period shall be considered a declination of the offer unless Complainant can demonstrate that circumstances beyond her control prevented a response within the time limit. (2) Within 60 of the date this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the agency's efforts to compute the amount of back pay and benefits due, and shall provide 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 complainant for the undisputed amount within sixty 60 calendar days of the date the agency determines the amount it believes to be due. 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) The issue of compensatory damages is REMANDED to the Agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable the EEOC determining the appropriate amount of damages within 180 calendar days after this decision becomes final. (4) Within 180 days of the date this decision becomes final, the Agency shall provide eight hours training to S1 regarding his obligations under Title VII and the ADEA. If S1 is no longer an Agency employee the Agency shall furnish documentation of S1's departure date to the Compliance Officer at the address referenced in the statement entitled "Implementation of the Commission's Decision." (5) Within 180 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against S1. The Agency shall report its decision to the Compliance Officer referenced herein. 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 S1 has left the Agency's employment, then the Agency shall furnish documentation of S1's departure date. (6) The agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0914) The Agency is ordered to post at all facilities within the authority of its Office of Elementary and Secondary Education copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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)), 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 tends 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 (S0610) 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. 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 January 9, 2015 Date 1 The vacancy announced in OESE-2008-0019 and OESE-2008-0020 constituted one opening for the same position. One set of interviews was conducted for both announcements. 2 We make no such assumption regarding the remaining aspect of Complainant's claim, that is, Complainant's nonselection for the position announced in Vacancy Announcement Nos. OESE-2008-0019 & 0020. 3 See ROI, Ex. F-5 (S1 stating that he knew generally of Complainant's prior EEO activity but did not know the specifics as he was not a named management official in any of those cases). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120120836 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120120836