Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120142302 Agency No. HS-ICE-01595-2011 DECISION On June 17, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 13, 2014, which she received on May 19, 2014, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant was placed by a private staffing firm as an Administrative Assistant at the Agency's Immigration and Customs Enforcement, Service Processing Center (SPC) in Florence, Arizona. The Florence SPC is an immigration detention facility. On October 25, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII when on April 14, 2011, at the direction of the Agency, she was notified by the staffing firm that she was terminated. Following an investigation, Complainant requested the Agency to issue a FAD without a hearing. In its FAD the Agency found no discrimination. It found that Complainant did not establish a prima facie case of reprisal discrimination because she was not an employee of the Agency. Complainant started serving the Agency as an Administrative Assistant in 2003. She stated that Health Services Administrator ("Administrator 1") was her Agency supervisor from approximately 2009 until her removal. Complainant's staffing firm supervisor was stationed in Alexandria, Virginia. In its FAD the Agency found that its management supervised Complainant daily. Agency Administrator 1 was the designated reviewer on Complainant's 2010 annual Performance Review. A prior Florence Health Services Administrator ("Former Administrator") wrote that he completed annual performance evaluations for the staffing firm employees, and while working at the Agency their careers ended based on recommendations of the Agency. Report of Investigation (ROI), Ex. 9, at 37 - 38.1 On April 5, 2011, Complainant was required to provide a statement to a federal investigator on a sexual harassment allegation by a co-worker against Administrator 1. When notified of this by the Assistant Administrator, Complainant told him she was concerned that Administrator 1 would have her terminated if she provided a statement. ROI, Ex. 12, at 55. She also told the investigator that Administrator 1 would get her fired if she cooperated, but she gave a statement. Ex. 8, at 33. On April 14, 2011, eight working days after her interview with the federal investigator, the staffing firm supervisor told her she was terminated. Complainant stated that the staffing firm supervisor told her she was creating a hostile work environment. The Assistant Administrator stated Administrator 1 was in communication with the staffing firm concerning the termination. Complainant alleged that when Administrator 1 was told she was going to talk to the federal investigator, she retorted, "If I get fired from this, I will have [Complainant] fired before I leave." Complainant stated that she explained to her staffing firm supervisor that she was involved with a federal investigation against Administrator 1 and that she was the victim of retaliation. Complainant contended that she told the staffing firm supervisor there were several employees who would testify that any allegations against her were false, and requested that the staffing firm conduct an investigation, but the staffing firm supervisor declined. Later, several employees got in touch with the staffing firm supervisor and told her the allegations against Complainant were false. The Assistant Administrator, who shared an office with Administrator 1, stated that while officially the staffing firm gave Complainant notice of her termination, he heard a telephone conversation where Administrator 1 asked the staffing firm to terminate Complainant. The Assistant Administrator stated that there was animosity between Administrator 1 and Complainant in the months prior to the termination, and he heard Administrator 1 make several calls to the staffing firm complaining about Complainant's performance or behavior. He stated Administrator 1 reported performance or conduct issues about Complainant to the staffing firm for minor or non-existent offenses which were not reported if other contract staff did the same things, that the conduct complaints were unfounded, and the majority of the complaints were inaccurate or untrue. He stated that Administrator 1 told him on multiple occasions that she would not be happy until she got Complainant fired. The Assistant Administrator opined that the fact that Administrator 1 made the ultimate complaint about Complainant that got her fired shortly after her interview with the federal investigator strongly indicated retaliation. He stated that upon Complainant's dismissal Administrator 1 was vocally and visibly pleased with herself and the termination. He wrote that as Complainant was leaving he told her in Administrator 1's presence that if she needed a job reference not to hesitate to call him. He said that once Complainant left, Administrator 1 verbally reprimanded him in a very hostile manner for offering a reference. The Assistant Administrator stated that shortly after the termination, several other staff members expressed concern about retaliation for speaking with the federal investigator, and they hired an attorney to draft a letter to the Agency on their concerns. He wrote that within days of the letter being issued, Administrator 1 was removed from the facility and never returned. The Assistant Administrator became the new Health Services Administrator. The Former Administrator stated that Complainant was one of his model employees, often was the first to volunteer time and skills to help complete the medical mission, and was of high character and professionalism. The Assistant Administrator stated that based on his experience working with Complainant he did not have any reason to believe she created a hostile work environment, the alleged reason for her termination. A Medical Records Technician, a staffing firm employee who served the Agency, stated Complainant was knowledgeable and professional. Likewise, an Agency Deportation Officer who worked at the Florence SPC stated that based on his experience and interaction with Complainant, he would characterize her performance and interaction with other employees as good and professional. The EEO investigator indicated that despite his numerous efforts to obtain a statement from Administrator 1, she did not make one. He wrote that he ascertained that the staffing firm supervisor was terminated from the staffing firm, and the firm was uncooperative in providing her contact information. A staffing firm human resources employee stated that the staffing firm supervisor was employed there until July 24, 2012. Complainant filed a charge of discrimination against the staffing firm with the EEOC's Phoenix District Office. On July 15, 2011, Complainant and the staffing firm reached an EEOC Mediation Agreement, and acknowledged therein that they agreed to enter into a supplemental agreement (which was made on July 18, 2011). The staffing firm agreed to pay Complainant $12,500 in back pay, and $37,000 in compensatory damages. In the mediation agreement, Complainant agreed to resign from the staffing firm effective April 14, 2011, and in the supplemental agreement agreed not to apply to the staffing firm for future employment or referral and to waive any right to re-employment or future referral with or through the staffing firm. The staffing firm agreed to give Complainant a letter of reference containing her dates of employment, job title, and primary duties and responsibilities. Complainant stated that since her termination she has not been able to find full time work, and is doing contract work that is not steady which does not come close to replacing her compensation. As a result, she stated she lost her vehicle, her health insurance, and had other negative financial consequences. She wishes to return to the Florence SPC with the same compensation she had when she was terminated, and wants damages. On appeal, Complainant submits a reference letter Administrator 1 wrote for her dated December 6, 2010. Therein Administrator 1 refers to herself as Complainant's supervisor and lauds her performance. In opposition to the appeal, the Agency again argues that it was not Complainant's joint employer. ANALYSIS AND FINDINGS Joint Employment The first question before us is whether the Agency was Complainant's joint employer, entitling her to seek relief against the Agency through the 29 C.F.R. Part 1614 EEO complaint process. EEOC Regulation 29 C.F.R. §1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. § 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment. The Commission has applied the common law of agency test to determine whether an individual is an agency employee versus a contractor. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992). The question of whether an employer-employee relationship exists is fact-specific and depends on whether the employer controls the means and manner of the worker's work performance. This determination requires consideration of all aspects of the worker's relationship with the employer. Factors indicating that a worker is in an employment relationship with an employer include the following: 1. The employer has the right to control when, where, and how the worker performs the job. 2. The work does not require a high level of skill or expertise. 3. The employer furnishes the tools, materials, and equipment. 4. The work is performed on the employer's premises. 5. There is a continuing relationship between the worker and the employer. 6. The employer has the right to assign additional projects to the worker. 7. The employer sets the hours of work and the duration of the job. 8. The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job. 9. The worker does not hire and pay assistants. 10. The work performed by the worker is part of the regular business of the employer. 11. The worker is not engaged in his/her own distinct occupation or business. 12. The employer provides the worker with benefits such as insurance, leave, or workers' compensation. 13. The worker is considered an employee of the employer for tax purposes (i.e., the employer withholds federal, state, and Social Security taxes). 14. The employer can discharge the worker. 15. The worker and the employer believe that they are creating an employer-employee relationship. This list is not exhaustive. Not all or even a majority of the listed criteria need be met. Rather, the determination must be based on all of the circumstances in the relationship between the parties, regardless of whether the parties refer to it as an employee or as an independent contractor relationship. EEOC Compliance Manual, Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12, 2000) (available at www.eeoc.gov). Under the Commission's Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms (Dec. 3, 1997)(available at www.eeoc.gov.), we recognize that a "joint employment" relationship may exist where both the agency and the staffing firm may be joint employers. Similar to the analysis set forth above, a determination of joint employment requires an assessment of the comparative amount and type of control the staffing firm and the agency each maintains over a complainant's work. Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006). Thus, a federal agency will qualify as a joint employer of an individual if it has the requisite means and manner of control over the individual's work under the criteria above, whether or not the individual is on the federal payroll. Id. For example, an agency may be considered an employer of the worker if it supplies the work space, equipment, and supplies, and if it has the right to control the details of the work performed, to make or change assignments, and to terminate the relationship. Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms, at Coverage Issues Question 2. Factors 1 - 7, 9 - 11 and 14 Indicate that Complainant is an Employee Jointly Employed by the Agency Around the time Administrator 1 assumed her role, she met with Complainant and gave her a detailed list of her duties and discussed them with her. This list was like a position description. ROI, Ex. 19. While the Chief of Health Operations characterized Administrator 1's role as a technical monitor only, the Agency conceded it supervised Complainant's daily activities, and Complainant stated Administrator 1 did so. Complainant served as Administrator 1's Administrative Assistant and stated that the staffing firm gave strict orders that staff were to take direction from Administrator 1, and do whatever she told them to do, even if it was not in their job description. We find that Administrator 1 had significant input into Complainant's annual evaluation which was signed by her remote staffing firm supervisor. (Factors 1, 6). Being an Administrative Assistant did not require a high level of expertise (Factor 2). Complainant worked on Agency premises, and it provided her the tools, materials and equipment she used to do her job (Factors 3, 4). She started serving the Agency in 2003, a continuing relationship (Factor 5). The mission of the SPC was to detain immigrants, which includes caring for them while detained. Complainant's job included setting up medical appointments after requests for them were received and authorized, which goes directly to this mission. (Factor 10). Complainant was not in business for herself, and there is no indication that she hired or paid assistants (Factors 9, 11). Since Complainant's primary responsibility was to serve as Administrator 1's Administrative Assistant and in scheduling medical appointments she was expected to verify them with the Agency the day before to ensure the Agency was prepared, the record suggests the timing of Complainant's work was largely controlled by the Agency (Factor 7). Because this case concerns removal, factor 14 is a significant factor. Here, the record reflects that almost immediately after Administrator 1 asked the staffing firm to terminate Complainant's service, it did so, which resulted in her removal from the staffing firm. We find the weight of the evidence shows the Agency had de facto removal authority. Pietsch v. Department of Health and Human Services, EEOC Appeal No. 0120090933 (June 3, 2009). Factors 8, 12, and 13 Indicate that Complainant is not Jointly Employed by the Agency The staffing firm paid Complainant and took care of her compensation (Factors 8, 12, 13). Factor 15 Does not Point in Any Direction It is not clear whether Complainant believed she was creating a contractor or employee relationship with the Agency. Based on the legal standards and criteria set forth herein, we find that the Agency exercised sufficient control over Complainant's position to qualify as her joint employer for the purpose of the EEO complaint process. Reprisal Discrimination Having decided that the Agency was Complainant's joint employer for the purposes of her 29 C.F.R. Part 1614 EEO complaint, we will proceed to address her retaliation claim on its merits. We note that the Agency conducted an investigation, pursuant to 29 C.F.R. § 1614.108, into Complainant's claim. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. Complainant may establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. McDonnell Douglas Corp. Specifically, in a reprisal claim, a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) 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. Texas Dep't of Community 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 reason(s) for its action was a pretext for discrimination. 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 Center v. Hicks, 509 U.S. 502, 519 (1993). On April 5, 2011, Complainant participated as a witness in a sexual harassment investigation of Administrator 1. The Agency conceded in the FAD that Administrator 1 was aware of this. Shortly thereafter, almost immediately after Administrator 1 told the staffing firm the Agency did not want Complainant's services, she was fired. Therefore, Complainant has established a prima facie case of reprisal discrimination. Complainant stated that in terminating her, the staffing firm supervisor told her that Agency management indicated that she was creating a hostile work environment at the Agency. The Assistant Administrator confirmed that this was his understanding of the stated reason for Complainant's removal. As already noted, Administrator 1 did not provide a statement during the investigation. Accordingly, we find the Agency's articulated, non-discriminatory reason for asking that Complainant be removed was that she was creating a hostile work environment. The record reflects that in the months before Complainant was a witness in the sexual harassment investigation of Administrator 1, there was animosity between them, and it rose to the level of Administrator 1 calling the staffing firm several times to complain about her. By her own admission, Complainant conceded that Administrator 1 reacted with annoyance to her strict adherence to policies. The Chief of Health Operations, who was not onsite, stated that Administrator 1 complained to him about Complainant's attitude and being antagonistic. Complainant and the Assistant Administrator stated the complaints were unjustified and unfounded. While Administrator 1 reacted with annoyance to Complainant, and there was animosity between them, as far as the record shows Administrator 1 only explicitly asked the staffing firm to remove Complainant after she was a witness in the federal investigation. Based on the evidence of record, Complainant has proven, by a preponderance of the evidence, that only reason articulated in the record for her removal was pretext to mask reprisal discrimination. According to Complainant, when Administrator 1 learned she talked to the federal investigator she said if she got fired she would get Complainant fired before she left. Given that Complainant's removal was only eight working days after she participated in the federal investigation, we find it more likely that she was removed in retaliation for this rather than challenging the POC on leave policy, even taking into account the history between Complainant and Administrator 1. In fact, their relationship made Complainant more vulnerable to reprisal. When discrimination is found, the agency must provide the complainant with a remedy that constitutes full, make-whole relief. This means the injured party is to be placed, as near as may be, in the situation she would have occupied had the wrong not been committed. Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 - 419 (1975); 29 C.F.R. § 1614.501(a). Here, Complainant did not encumber a specified federal position, rather she served the Agency as an Administrative Assistant via a staffing firm. Remedy As remedy, Complainant indicated in part that she wanted her job back or a similar job. Shortly following Complainant's EEOC Mediation Agreement with her staffing firm, she entered into a supplemental agreement therewith on July 20, 2011, agreeing to waive any right to re-employment or future referral with or through the staffing firm. Accordingly, we decline to order the Agency to attempt to restore Complainant's joint employment by requesting that the staffing firm rehire her to continue serving the Agency. Reinstatement is not an appropriate remedy because there is no legal mechanism to restore Complainant's joint employment. Brinkley v. United States Postal Service, EEOC Appeal No. 07A40110 (April 28, 2005) (where the contract with the agency and its staffing firm expired, there was no legal mechanism to continue complainant's joint employment). Front pay may also be an equitable remedy that compensates an individual when reinstatement is not possible. However, the Commission has limited the circumstances where front pay may be ordered. Among those circumstances, the Commission has held that awards of front pay may be considered where the complainant is able to work, but cannot do so because of circumstances external to the complainant. Brinkley, id.; Goetze v. Department of the Navy, EEOC Appeal No. 01991530 (August 22, 2001). Here, however, Complainant agreed not to apply for a position with the staffing firm, something within her control. Accordingly, a front pay award is also not appropriate in this case. The Agency's FAD is REVERSED. The Agency shall comply with the Order below. ORDER The Agency is ordered to take the following remedial actions: 1. Determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than 60 calendar days after the date this decision becomes final.2 Back pay shall be paid from the date Complainant was terminated in April 2011 through July 19, 2011 (the day before she signed the mediation agreement waiving any right to re-employment with the staffing firm). The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision."3 2. The issue of compensatory damages is REMANDED to the agency. On remand, the Agency shall conduct a supplemental investigation on compensatory damages, and provide Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages regarding incidents. 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 eeoc.gov.) The Agency shall complete the investigation and issue a FAD appealable the EEOC determining the appropriate amount of damages within 120 calendar days after this decision becomes final. 3. Within 90 calendar days after this decision becomes final the Agency will require Administrator 1, if she is still employed by the Agency, to take training on how to recognize reprisal discrimination and prevent it. 4. Within 90 calendar days after this decision becomes final the Agency will consider taking disciplinary action against Administrator 1 for the reprisal against Complainant. The Agency shall report its decision. 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 the identified employee is no longer employed by the Agency, the Agency shall furnish proof of the date of separation. 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 back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Immigration and Customs Enforcement, Florence Service Processing Center, Health Service Corps, 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. § 1614.501.4 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 (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 28, 2015 __________________ Date 1 Former Administrator retired from the Agency in 2010. 2 As part of mitigation, the Agency may deduct the $12,500 in back pay Complainant received from her former staffing firm. 3 If neither party files a request for reconsideration, this decision becomes final within 30 days after the parties receive this decision. The Commission presumes the parties will receive this decision within five calendar days after it is mailed. 4 If Complainant retains an attorney, for example, to help her prove compensatory damages and/or obtain implementation of this decision if the Agency declines to do so in whole or part, and she prevails, she will be able to apply through the attorney to the Agency for attorney fees and costs in accordance with 29 C.F.R. § 1614.501(e). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120142302 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120142302