Brenton O., Complainant, v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency. Appeal No. 0120130166 Hearing No. 510-2011-00472X Agency No. 5R1S10007 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 2012 final order concerning his 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. For the following reasons, the Commission MODIFIES the final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst at the Agency's Air Force Technical Applications Center at Patrick Air Force Base, Florida. In November 2009, Complainant and his supervisor (S1) were involved in an incident regarding Complainant's desk. S1 had been on temporary duty (TDY) in South Korea and while on TDY, he learned that Complainant had moved his desk from one location to another. S1 had previously told Complainant not to move his desk because more people were going to be coming into the branch. S1 asked a co-worker to instruct Complainant to move his desk back before S1 returned. When S1 returned, Complainant still had not moved back his desk. S1 met with Complainant in his office and ordered him to move his desk back. Complainant argued with S1 in his office and later in a conference room over the matter. Complainant eventually moved the desk back as instructed. In addition, Complainant had previously requested to travel with S1 to South Korea. S1 denied the request and Complainant became upset arguing he should be the one traveling to South Korea. S1 testified that Complainant said to him "you are not the expert on agreements...I am" and stormed out. On April 12, 2010, S1 issued Complainant a midterm performance review. Complainant's performance was rated numerically from "1" to "5" on the following performance elements: Accountability for Results; Communication; Critical Thinking; Engagement and Collaboration; Personal Leadership and Integrity (non-supervisory); and Technical Expertise (non-supervisory). S1 gave Complainant a rating of "3" on all of the elements except for Communication, which he rated Complainant as "2," and Technical Expertise, which he rated Complainant as "4." In the midterm evaluation, S1 referenced the two incidents discussed above, noting that on two occasions, Complainant "became argumentative over relatively minor issues." In addition, S1 noted "as is documented in several areas of this evaluation, [Complainant] needs to work on the tone and manner that he communicates with his immediate leadership and co-workers." S1 further stated that Complainant had spoken to his co-workers "seeking agreement that management decisions [were] biased or discriminatory." [emphasis added] Additionally, S1 made other notes in the appraisal that Complainant's talking with co-workers "about perceived injustices [was] not conducive to a healthy work environment," that Complainant needed to "develop and foster professional dialogue with his management and peers," and that "hallway discussions/info digging about management decisions does not lead to strong teamwork and has a negative impact on [morale]...problems with management decisions should always start with the supervisor." Further, the appraisal noted that when Complainant was questioned about his requests to travel, his explanations did not warrant travel. In May 2010, Complainant contacted the Agency's EEO office regarding several claims of discrimination and harassment. In January 2011, S1 was contacted and interviewed by an investigator for the renewal of Complainant's security clearance. The investigator's interview notes indicated that during the interview, S1 mentioned that Complainant had filed an EEO complaint against him. In addition, S1 stated that Complainant was professional, knowledgeable, and competent, but can be difficult to work with. Further, S1 told the investigator that he trusts Complainant's ability to perform his duties; however, he did not trust Complainant's word because he has lied to him. Finally, S1 informed the investigator that he did not have any concerns about Complainant as a security risk. On August 31, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and in reprisal for prior protected EEO activity when: 1. On April 12, 2010, he was issued a low midterm evaluation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Prior to the hearing, Complainant withdrew several additional claims and amended his complaint to allege that the Agency discriminated against him in reprisal for prior protected EEO activity when: 2. During a background security clearance investigation, his supervisor made a reference about Complainant's pending EEO complaint to the investigator. The AJ held a hearing on February 22 and 23, 2012, and issued a decision on September 5, 2012. In his decision, the AJ initially noted that he found the Agency management officials' testimony credible because it was evident that Complainant was predisposed to exaggeration based on his tone, demeanor, evasiveness, and contradictory testimony. The AJ then found that S1 had articulated legitimate, nondiscriminatory reasons for his comments during the background investigation interview. Specifically, the AJ found that Complainant raised the matter himself during the investigation in the background questionnaire prior to his own interview. Thus, the AJ determined that Complainant's testimony that the only reason the investigator knew about his EEO complaint was that S1 told the investigator about it clearly was not credible. Further, the AJ noted that S1 told the investigator that he did not consider Complainant to be a security risk, that he had no concerns about Complainant handling classified information, and that he recommended Complainant keep his security clearance. Complainant learned of the discussion between S1 and the investigator when he received a copy of the investigator's notes on or about September 26, 2011. Thus, the AJ found that Complainant's testimony that he was "frightened and afraid" that S1 was going after his security clearance so as to have it revoked in retaliation for his protected EEO activity was an exaggeration and not credible. As to the mid-term evaluation, the AJ found that S1's comments about Complainant's "seeking agreement" with co-workers that management's decisions were biased or discriminatory constituted protected opposition to discrimination and should not have been referenced as part of Complainant's appraisal. The AJ determined that had S1 simply identified Complainant's argumentative nature and poor judgment, there would have been no violation. The AJ found that the references to Complainant's protected activity fell within the type of acts that may reasonably have the effect of deterring one from engaging in EEO protected activity and was tantamount to direct evidence of reprisal. Notwithstanding S1's comments, the AJ found that the Agency met its burden of establishing that Complainant would have received the same numerical rating in his midterm evaluation. The AJ found that S1 addressed his concerns about Complainant's conduct as it related to administrative matters and did not have to reference the pending EEO complaint, i.e., Complainant's communication deficiencies with his co-workers and management and his failure to follow instructions. Complainant attempted to establish that he had great communication skills because in 2008, he received a rating of "9" (the highest rating available at the time) in Communication. The AJ determined that there was sufficient record evidence justifying the lowered rating in the midterm evaluation. The AJ concluded that Complainant had not been discriminated or retaliated against as to S1's comments to the investigator during Complainant's security clearance investigation or for the low rating he received in his midterm performance evaluation. However, the AJ found that S1's comments about Complainant's protected EEO activity violated Title VII. Turning to remedies, the AJ found that the record showed that any stress Complainant suffered was due solely to the numerical rating. Further, the AJ found that Agency clearly established that it would have and should have given Complainant the low numerical rating on his midterm evaluation notwithstanding S1's comments regarding Complainant's protected EEO activity. Further, the AJ did not credit Complainant's testimony that he suffered any compensable harm as to the comments. As a result, the AJ did not award Complainant compensatory damages or back pay. As to injunctive relief, the AJ ordered the Agency to expunge the April 10, 2010 midterm performance evaluation that referenced Complainant's protected EEO activity, to send the responsible management officials (S1 and Complainant's second-level supervisor) to EEO training, and to post a notice. Finally, the AJ awarded Complainant $30,077.50 in attorney's fees, $467.50 for the paralegal, and $12.56 in costs. The Agency subsequently issued a final order fully implementing the AJ's decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through his attorney, contends that the AJ made numerous erroneous rulings and displayed antagonistic behavior towards Complainant. Further, Complainant argues that the AJ erred in cancelling the compensatory damages hearing. Complainant contends that the AJ erred in failing to credit his evidence showing an entitlement to compensatory damages and he should have been awarded $24,000.00 in compensatory damages. Additionally, Complainant alleges that the AJ erred in finding that S1's statements to the security clearance investigator did not constitute unlawful reprisal. Finally, Complainant argues that the AJ erred when he did not award full attorney's fees and costs. Accordingly, Complainant requests that the Commission award him compensatory damages, find that S1 retaliated against Complainant during the security clearance investigation, and award him full reimbursement for attorney's fees and costs. In response, the Agency requests that the Commission affirm its final order implementing the AJ's decision. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Nov. 9, 1999). ANALYSIS AND FINDINGS The AJ's Handling of the Hearing Process The Commission must first address Complainant's contention that the AJ erred in cancelling the compensatory damages hearing and instead issued a decision on damages based on Complainant's May 15, 2012 Brief on Damages. In addition, Complainant alleges that the AJ treated him in an antagonistic manner during the hearing. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also EEO MD-110, at 9-10. The instant record reveals that the AJ did not schedule a damages hearing; rather, on April 30, 2012, he instructed Complainant to file a brief identifying any damages to which he believed he was entitled. On May 4, 2012, Complainant filed a motion for a compensatory damages hearing. On May 7, 2012, the AJ denied the motion and ordered Complainant to comply with the previous order. On May 15, 2012, Complainant complied and submitted his brief on damages. The Commission has reviewed the documentary evidence in the record and the Commission finds that the AJ did not abuse his discretion by not holding a damages hearing. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. Disparate Treatment/Reprisal To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he 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). Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons for its actions are pretext for discrimination. Id. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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, 519 (1993). Upon review, the Commission finds substantial evidence supports the AJ's decision. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, substantial record evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to low score he received on the midterm performance appraisal, S1 testified that he rated Complainant as "2" under the Communications element because Complainant was argumentative over minor issues with him, including the desk-moving incident and not being allowed to travel to South Korea. Hr'g Tr., at 184; ROI, at 136. S1 noted that persistent arguing was not conducive to a team environment. ROI, at 136. Further, under the Accountability for Results element, Complainant's requested TDY to travel to Australia, Japan, and Alaska, but he failed to provide sufficient justification for the expenditures. Hr'g Tr., at 181. S1 testified that he ultimately rated Complainant as "3.5" which equaled "Fully Successful." Id. at 190. With respect to his comments during the background security clearance investigation, S1 testified that the investigator asked him about Complainant's EEO complaint, and he simply told her, in general terms, that Complainant had alleged discrimination and reprisal. Id. at 198. Further, S1 testified that he told the investigator that Complainant had lied to him, but that he did not believe that Complainant was a security risk and that he deserved to keep his clearance. Hr'g Tr., at 198-200. The Commission finds that there is substantial evidence in the record to support the AJ's finding that Complainant did not establish that the Agency's explanation for its actions was a pretext for discrimination or reprisal. The record and facts gleaned at the hearing fail to disclose any evidence purporting to show the Agency's actions were pretext for discriminatory or retaliatory animus. Thus, after reviewing the record and considering arguments on appeal, the Commission finds that the AJ made reasonable credibility determinations, which are not contradicted by objective evidence, and his factual findings are supported by substantial evidence. Therefore, the Commission affirms the AJ's finding of no discrimination and reprisal as to claims (1) and (2). As to S1's comments about Complainant's protected opposition activity in his midterm evaluation, we find that substantial record evidence supports the AJ's finding that S1's comments violated Title VII and the Commission's regulations because such comments were likely to have a chilling effect and deter Complainant and other employees from exercising their EEO rights. 42 U.S.C § 2000e-3(a); 29 C.F.R. § 1614.101(b); See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). REMEDIES Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes his or her claim of unlawful discrimination may receive, in addition to equitable remedies, compensatory damages for past and future pecuniary losses (i.e., out of pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish). 42 U.S. C. § 1981a(b)(3). For an employer with more than 500 employees, such as the agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. Id. Compensatory Damages Complainant requested $24,000.00 in non-pecuniary compensatory damages. During the hearing, Complainant testified that he was "in shock" and "intimidated" after he received the midterm performance evaluation. Hr'g Tr., at 68. Complainant affirmed that he has suffered anxiety, panic, sleeplessness, chest pain and tightness, depression, headaches, and decreased self esteem. Complainant's Brief on Damages, Attach. 3. The AJ determined that Complainant was not entitled to compensatory damages because he failed to show that S1's comments caused the harm he allegedly suffered. The Commission disagrees and finds that Complainant has established an entitlement to $1,500.00 in non-pecuniary compensatory damages. The amount takes into consideration the severity of the harm suffered, the length of time Complainant suffered the harm, and is consistent with prior Commission precedent. See EEOC Appeal No. 0120121598 (Sept. 4, 2013) (complainant awarded $1,000.00 when she suffered anxiety attacks and no longer felt safe as a result of Agency's reprisal); EEOC Appeal No. 0120122266 (Oct. 18, 2012) (complainant awarded $500.00 when she suffered workplace paranoia, insomnia, and increased stress as a result of Agency's interference with EEO process); EEOC Appeal No. 0720050090 (Mar. 20, 2007) (complainant was entitled to $1,500.00 in non-pecuniary compensatory damages for reprisal discrimination where Complainant provided only limited and non-descriptive testimony concerning emotional pain). Attorney's Fees The attorney's fee award is ordinarily determined by multiplying a reasonable number of hours expended on the case by a reasonable hourly rate, also known as a "lodestar." See 29 C.F.R. §1614.501(e)(2)(ii)(B); EEOC Appeal No. 01966861 (July 17, 1998). In determining the number of hours expended the Commission recognizes that the attorney "is not required to record in great detail the manner in which each minute of its time was expended." Id. However, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. Id. Further, a reasonable fee award may be assessed in light of factors such as: (1) the time required (versus time expended) to complete the legal work; (2) novelty or difficulty of the issues; (3) the requisite skill to properly handle the case: (4) the degree to which the attorney is precluded from taking other cases; (5) the relief sought and results obtained; and (6) the nature and length of the attorney-client relationship. See EEOC Request No. 05930899 (Oct. 19, 1994). Complainant is only entitled to an award for time reasonably expended. It does not always follow that the amount of time actually expended is the amount of time reasonably expended. EEOC Request No. 01943425 (Aug. 31, 1995). Rather, "billing judgment" is an important component in fee setting, and hours that would not be properly billed to a private client are also not properly billed to the agency pursuant to a successful EEO claim. Id. The attorney for the prevailing party should make a "good faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary." See EEOC Appeal No. 01966861. Complainant's attorney claimed that his hourly rate is usually $305.00 an hour; however, Complainant was charged at the below market rate of $275.00 per hour. The AJ determined that Complainant's attorney failed to present persuasive evidence that that the $305.00 per hour rate was reasonable or representative of the prevailing market rate in Central Florida. The AJ noted, however, that Complainant's attorney provided evidence that he had previously been awarded attorney's fees in the amount of $255.00 per hour in 2007. In addition, the record contained an affidavit from another attorney who claimed that an hourly rate between $275.00 and $325.00 was reasonable. The AJ determined that Complainant's attorney had presented no persuasive evidence supporting an increase in the prevailing market rate from $255.00 to $275.00 per hour in the past four years. Therefore, after considering all of the submitted evidence, the AJ determined that Complainant's attorney's requested rate was not supported and that $265.00 per hour was a reasonable attorney's fees rate. In addition, the AJ found that $85.00 per hour was reasonable for the law firm's paralegal. Finally, the AJ disallowed eight requested charges from the fee petition as duplicative, unnecessary, not supported, and not compensable. As a result, the AJ awarded Complainant $30,077.50 (113.5 hours at $265.00 per hour) in attorney's fees, $467.50 (5.50 hours at $85.00 per hour) in paralegal fees, and $12.56 in photocopying costs. Complainant challenges the AJ's determination that $265.00 per hour was a reasonable rate. In support, Complainant's attorney asserts that the submitted hourly rate matrix showed that his 2011 "A-rate" was $305.00 an hour and in 2012, the A-rate increased to $315.00 per hour. Complainant's attorney further contends that this is a reasonable market hourly rate in Central Florida for attorneys of like experience. Complainant's attorney notes that Complainant was charged the discounted "B-rate" of $275.00 per hour. Upon review of the record, the Commission finds that there is substantial record evidence supporting an increase to $275.00 per hour as a reasonable attorney's fee rate in the instant case. In addition, Complainant contests three disallowed charges and the AJ's denial of deposition appearance fees and transcript costs. Specifically, the AJ deducted two hours for preparations for Day 2 of the hearing the AJ deemed excessive and not supported and 2.4 hours and $1,220.00 in costs for the services of an expert in reviewing and analyzing the fee petition that the AJ determined was unnecessary. The Commission finds that substantial record evidence supports the AJ's determination that these claimed hours were unnecessary and, as to the charges related to the expert attorney, not needed to make a determination as to reasonable attorney's fees and costs. Finally, Complainant challenges the AJ's failure to award him $2,316.09 in deposition fees and costs. Complainant noted that the AJ provided no reason for not awarding these costs. Complainant has provided receipts and other sufficient documentation in support of his request. The Agency has not specifically opposed Complainant's request for these costs. Accordingly, the Commission finds that Complainant is entitled to $2,316.09 for these costs. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Commission MODIFIES the final order and directs the Agency to comply with the Order below. ORDER The Agency is ordered to take the following remedial action to the extent it has not already done so: 1. Within 60 days of the date this decision becomes final, the Agency shall expunge from Complainant's personnel file the April 10, 2010 midterm performance evaluation that references Complainant's participation and/or opposition to unlawful discriminatory practices. 2. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant $1,500.00 in non-pecuniary compensatory damages. 3. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant a total of $31,212.50 in attorney's fees, $467.50 in paralegal fees, and $2,328.65 in costs. 4. Within 60 days of the date this decision becomes final, the Agency shall provide two hours training for the responsible management officials (Complainant's first and second-level supervisors) with an emphasis on retaliation. 5. Within 60 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be a disciplinary action. 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 reasons for its decision not to impose discipline. If the management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0610) The Agency is ordered to post at its Air Force Technical Applications Center at Patrick Air Force Base, Florida copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. 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 is entitled to an award of reasonable attorney's fees incurred in the processing of this appeal. 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: ______________________________ Carlton M. Hadden, Director Office of Federal Operations May 7, 2014 __________________ Date 2 0120130166 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130166