Victoria Oni, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, (Internal Revenue Service), Agency. Appeal No. 0720100015 Hearing No. 440-2007-00287X Agency No. EEODFS070184F DECISION Following its November 13, 2009, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of 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 Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. Specifically, the Agency argues that the AJ’s award of $50,000.00 in nonpecuniary compensatory damages is excessive, and that the back pay award should be limited because Complainant failed to provide evidence of mitigation. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Internal Revenue Agent at the Agency’s Small Business/ Self Employed Division in Chicago, Illinois. On January 29, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black) and national origin (Nigerian) when, effective November 27, 2006, Complainant was terminated from her position with the Agency during her probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held hearings on July 24 and November 13 & 14, 2008, and issued a decision on September 30, 2009. Specifically, the AJ found that Complainant established a prima facie case of discrimination and that the Agency articulated a legitimate nondiscriminatory reason for its action, namely that Complainant was removed for poor performance. The AJ further found, however, that Complainant successfully showed that the Agency’s articulated reason for its action was a pretext for prohibited discrimination. For example, the AJ found that probationary employees outside of Complainant’s protected bases who were otherwise similarly situated also had performance problems as Complainant did, but none were terminated. In addition, the AJ noted that the only three employees who failed to be retained at the end of the training program, including Complainant, were all the same race, while the majority of those retained by the Agency were of a different race. In addition, the AJ found, Complainant’s trainer (T: Caucasian, American) failed to “provide Complainant with any meaningful coaching.” The AJ ordered that Complainant be reinstated with full back pay and benefits and awarded entitlement to attorney’s fees and $50,000.00 in nonpecuniary compensatory damages. The Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, the Agency argues that the AJ erred in various ways in coming to his decision. The Agency first argues that the AJ erred in comparing Complainant’s treatment to that of a coworker (CW1: Caucasian, American) because CW1 was not similarly situated with Complainant. The Agency also argues that the AJ erred in referring to another similarly situated coworker who was not mentioned in the record. The Agency next argues that the AJ relied on a flawed statistical analysis to support a finding of pretext. In addition, the Agency argues that the AJ incorrectly based his decision in part on his belief that the Agency’s training was deficient. The Agency further argues that the award of $50,000.00 in nonpecuniary compensatory damages is unjustified by the record, and that the back pay award should be limited because Complainant failed to provide evidence of mitigation. Complainant filed what she characterized as a cross appeal. However a review of Complainant’s arguments reveals that Complainant feels that the AJ erred in denying her motion to compel discovery of additional evidence, and in denying her motion to call additional witnesses. With regard to the ultimate findings, however, Complainant argues that the AJ’s finding of discrimination should stand, as well as the remedies ordered by the AJ. Complainant maintains that she sought additional evidence regarding other discrimination complaints brought against Agency officials and employees, including T, but that the AJ erroneously denied her motion as well as her motion to reconsider. Complainant further argues that the AJ erred in not allowing additional witnesses to testify on Complainant’s behalf in support of her claim for compensatory damages. Complainant argues that these witnesses would have provided further support for the $50,000 in compensatory damages awarded her by the AJ. She does not, however, object to the amount of the AJ’s award. With regard to the Agency’s arguments on appeal, Complainant argues that the AJ correctly found that Complainant and CW1 were similarly situated. In addition, Complainant maintains that, contrary to the Agency’s claim on appeal that the AJ erroneously referred to another similarly situated coworker who was not mentioned in the record, the employee in question was indeed mentioned in the record. Furthermore, Complainant argues, the AJ correctly found that this employee was outside of Complainant’s protected bases and had similar performance problems but was nevertheless retained by the Agency. Complainant also argues that the AJ correctly found that the Agency’s claim that Complainant lacked independence was not credible. With regard to the Agency’s argument that Complainant failed at one of the most important training components, Complainant contends that she received good ratings in this area. In addition, Complainant argues that the Agency’s claim on appeal that the AJ improperly substituted his business judgment when criticizing the Agency’s training program is erroneous and that the AJ was in fact criticizing the lack of training provided Complainant despite the Agency’s acknowledgment that training was necessary. Complainant argues that the AJ correctly found that a trainer was available for Complainant but was never assigned to train her while a trainer was assigned to CW1 and did provide him with training. With regard to the Agency’s argument that the AJ relied on flawed statistical analysis, Complainant argues that the Agency misconstrues the AJ’s finding, which did not rest on any statistical analysis but merely noted that the only employees terminated or forced to resign were African American and/or Nigerian. Complainant next rebuts the Agency’s argument on appeal that the AJ’s finding that it is more likely than not that the Agency’s actions were motivated by racial animus to be unsupported by the record, by arguing that T’s different treatment of CW1 and other non-African American and/or non-Nigerian employees provided sufficient evidence to support the AJ’s findings. With regard to the issue of damages, Complainant argues that the Agency produced no evidence that Complainant failed to mitigate damages, and so there is no basis to limit the back pay award. In addition, Complainant argues that the Agency provided no evidence showing that the AJ’s award of $50,000.00 in nonpecuniary compensatory damages was an abuse of discretion, and that the award should stand. ANALYSIS AND FINDINGS 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. National Labor Relations Board, 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case we find initially that Complainant established a prima facie case of discrimination because she was terminated from her position while others from outside of her protected bases but who were otherwise similarly situated were not terminated. The burden thus shifts to the Agency to articulate a legitimate nondiscriminatory reason for its action. See Burdine, 450 U.S at 253. This the Agency has done. The November 2006 removal notice notified Complainant that she was being removed during her probationary period because her performance had “not been fully successful.” The notice stated that Complainant had been counseled on August 18, 2006, that her performance was not at an acceptable level. The notice stated that: The following deficiencies in your performance were identified: - incorrect application of tax law - lack of full issue comprehension - inability to provide a dear explanation of adjustments and related tax law to the taxpayer - lack of workpapers to show audit work and audit trail - lack of independence - poor decision-making skills - poor Investigative and technical skills In addition, management officials and other Agency employees (including T) who mentored the most recent group of probationary employees stated that Complainant had performance problems and that, as a probationary employee she was offered the choice to resign or be terminated. During the hearing, T testified that Complainant lacked an understanding of tax law and was poorly organized. Hearing Transcript (HT) p. 240. The Agency having articulated a reason for its decision, the burden shifts back to Complainant to prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves 530 U.S. 133; Hicks, 509 U.S. at 519. The AJ found that Complainant successfully accomplished this goal. The AJ noted that Complainant pointed out that at the time of her removal her performance was improving, while her problems with tax law were no different than those suffered by other similarly situated probationary employees outside of her protected bases who were allowed to stay on with the Agency. The AJ noted that Complainant had been written up for incorrect application of tax law in one case but that Complainant subsequently demonstrated that her interpretation of the law had been correct. The AJ further found that CW1 “had similar criticisms leveled at him and yet [he] was treated much different than Complainant. At the end of [the first training period CW1’s] performance was at or below that of Complainant but [T] did not request that [CW1] be placed under ‘maximum supervision’” unlike Complainant. AJ’s Decision, p. 10. Instead, CW1 received "special treatment," which the AJ stated “I believe the impression created by the designation of maximum supervision was less favorable and intended to be so” by T. Id. The AJ further noted that “despite [CW1’s]continuing difficulties . . . in the areas of work papers, lack of an audit trail, minimum income probes, and case closing procedures, [T] nonetheless rated him with all "3s" on his evaluation and passed him through” the training program. Id. The AJ also noted that, while Complainant was criticized for her inability to work independently, “many of the newly accepted trainees continued to seek advice” while Complainant “was working entirely independent [sic] because T was too busy to provide her with any training, coaching or clear direction.” Id. The Agency argues that the AJ erred in finding that CW1 and Complainant were similarly situated. Specifically, the Agency argues that the difficulties experienced by CW1 and the criticisms he received “were very different” Agency Appeal Brief, p. 14, than those experienced by Complainant. According to the Agency, where CW1 experienced only difficulties “with the procedural aspects of the . . . position, Complainant had difficulties with both the procedural and technical aspects of the job.” Id. The Agency’s argument, therefore, is not so much that Complainant and CW1 were not similarly situated but that the difference in treatment was justified by legitimate nondiscriminatory reasons, namely that CW1’s deficiencies were not as great as Complainant’s. The Agency further argues that the AJ interpreted the record incorrectly in finding that the Agency’s main reason for terminating Complainant was her inability to work independently and her poor decision making skills, when “in fact ‘incorrect application of tax law’ is the first and foremost performance deficiency identified in the Complainant’s removal letter.” See id., p. 15. We note, however, that while the removal letter does list “incorrect application of tax law” at the top of the list of reasons for the termination it is not clear from the record that that reason was the “foremost” reason, as the Agency now claims, or simply one of many, equally important, reasons. For example T averred that Complainant was terminated because she “continued to struggle with procedural as well as technical aspects of the job. The Complainant was unable to provide the taxpayers with a clear explanation of adjustments to their income and expenses.” Report of Investigation (ROI), Exhibit 7, p. 84. The Area Director (AD: Caucasian, American) averred that The threshold reason was her inability to function successfully as a revenue agent. The Complainant did not understand the technical and procedural requirement of the revenue agent position. The Complainant was disorganized and did not exhibit the ability to plan and schedule her work. The Complainant’s performance difficulties were in critical areas for a revenue agent, the ability to plan, the technical application of the law to case facts and the ability to follow the procedural requirements of the position. Id., p 78. The Territory Manager (TM: Caucasian, Italian) averred that: She was disorganized and had difficulty with preplanning activities, inventory management, examination and case closing procedures as well as group procedures. . . . It was also necessary to give constant reminders to [Complainant] for travel vouchers, time reports, and calendar/sign-out book information and updates. They often required correction. She continued to struggle with tax law, information gathering and follow-up, and exam procedures. Her mistakes were often repetitive in nature. She lacked organizational skills and continued to require reminders and corrections for required group reports Id., p. 71. We note this statement is virtually identical to an email dated December 4, 2006 that T sent to TM complaining about Complainant’s deficiencies. Next, we note that in an August 11, 2006 Memorandum from TM to T, TM referred to Complainant as doing “reasonably well” during the first training session but subsequently having “difficulty conducting interviews, properly planning exams, etc.,” with no reference made to any difficulties with tax law. In addition, during the hearing the AJ specifically asked T “do you think all of the problems stem from the fact that she had a lack of understanding of the tax law, the majority of it?” and T responded: That was part of the picture, but I don't think it was the entire picture. . . . As I said, lack of just organizational skills. She failed to follow direction. Often needed reminders to do things and follow-ups, and things still didn't get done. The lack of organizational skills also falls into the planning aspect. You need to plan each case ahead of time. There was still some problems with that. You need to plan your time in order to get things accomplished. Lack of tax knowledge is a big part of it because, yes, you're expected to be able to explain to the taxpayer. Hearing Transcript Dated November 14, 2008, (HT1) pp. 240-241. Finally, we note that the AJ did indeed address the matter of Complainant’s alleged problems with tax law. See AJ’s Decision, p.9. We therefore find that the AJ’s finding is supported by substantial evidence and we find no basis to disturb the AJ’s finding in this regard. The Agency also argues that the difference in the treatment CW1 received when compared to Complainant was justified by legitimate nondiscriminatory reasons, namely that their deficiencies were different. The Agency maintains that the AJ’s finding that Complainant’s performance was no worse than that of CW1 is “against the manifest weight of the evidence.” Agency’s Brief, p. 13. We note, however, that two of Complainant’s fellow-trainees (CW2: African American, American; CW3: African American, Not Nigerian) both averred during the investigation that the deficiencies suffered by both Complainant and CW1 during the training period were similar. See ROI, Exhibit 18, p. 3 and Exhibit 17, p. 5. Such sentiments were echoed by two of the Agency’s trainers (T2: African American, Not Nigerian, and T3: African American, African American). See Id., Exhibit 8, p.8., Exhibit 12, p. 1. We therefore find that, contrary to the Agency’s argument, the AJ’s finding in this regard is supported by substantial evidence. The Agency next argues that the AJ relied on a flawed statistical analysis to support a finding of pretext and further, that the AJ incorrectly based his decision in part on his belief that the Agency’s training was deficient. A review of the AJ’s Decision, however, does not support either claim. With regard to any flawed statistical analysis, the Decision contains no statistical analysis whatsoever, whether flawed or not. Instead the AJ noted that the only three trainees who were not retained by the Agency were African American, including Complainant. Since it is well established that different treatment afforded to just a single individual is sufficient to establish a prima facie case of discrimination, we find that different treatment afforded three individuals who share the same protected class is certainly no less probative of discrimination, and we find that the AJ was certainly entitled to take such facts into account. With regard to training, we discern nothing in the Decision to indicate the AJ believed the Agency’s training was deficient in general. Instead, the AJ found that Complainant was not provided the extra training management agreed that she needed. See AJ’s Decision, p. 11. After a careful review of the record, the Commission finds that the AJ's findings of fact are supported by substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We therefore discern no basis to disturb the AJ’s findings in this regard. With regard to Complainant’s arguments on appeal that the AJ erred in denying her motion to compel discovery of additional evidence, and in denying her motion to call additional witnesses, because we affirm the AJ’s finding of discrimination, Complainant’s arguments are moot and we need not address them. Regarding the award of non-pecuniary compensatory damages, the Agency argues on appeal that Complainant should not be awarded more than $3,500.00. We note that the Civil Rights Act of 1991 (CRA) authorizes awards of compensatory damages as relief for intentional discrimination in violation of Title VII. 42 U.S.C. §198la. Compensatory damages are recoverable in the administrative process. West v. Gibson, 119 S.Ct. 1996 (1999); see Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992), req. to recon. den., EEOC Request No. 05930306 (February 1, 1993). Compensatory damages may be awarded for losses and suffering due to the discriminatory acts or conduct of the Agency and include past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. See Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. N 915.002 (July 14, 1992) (Notice) at p. 8. Complainant maintains that the Agency’s actions resulted in her crying and feeling upset, problems sleeping, feelings of depression, and headaches that caused her to seek medical attention. Several Commission decisions have awarded compensatory damages in cases similar to complainant's case: Arreola v. Department of Justice, EEOC Appeal No. 0120003342 (January 17, 2002)( $50,000 awarded for discrimination resulting in stress, depression, loss of enjoyment of life, humiliation, sleeplessness, headaches, loss work experience, and weight fluctuation): Holliday v. Department of Agriculture, EEOC Appeal No. 0120003047 (June 12, 2002)($50,000 awarded for stress, depression, distrustfulness, humiliation, fear, sleeplessness, exhaustion, headaches, higher blood pressure, and exacerbation of a physical impairment due to the agency's retaliation); Cavanaugh v. United States Postal Service, EEOC Appeal No. 0720020102 (November 12, 2003)($50,000 awarded for exacerbation of pre-existing depression, anxiety symptoms, medication for her work-related stress, irritability, sleeplessness, serious tension headaches which would cause Complainant to vomit, marital problems, and end to Complainant’s social life and her ability to trust others). We therefore affirm the AJ's compensatory damages award. With regards to the Agency’s arguments about mitigation of the back pay award, we note that a back-pay claimant under Title VII generally has a duty to mitigate damages. Specifically, Section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) provides that “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” The burden is on the Agency, however, to establish that the employee failed in her duty to mitigate. The Commission has generally held that an agency must satisfy a two-prong test to meet its burden of proof. This test requires the agency to show that: (1) Complainant failed to use reasonable care and diligence in seeking a suitable position, and (2) there were suitable positions available which Complainant could have discovered and for which he or she was qualified. See McNeil v. United States Postal Service, EEOC Petition No. 04990007 (December 9, 1999), citing Simmons v. United States Postal Service, EEOC Petition No. 04930005 (December 10, 1993). Where a complainant makes no effort to mitigate damages and does not explain the lack of effort, the agency does not have to meet the second prong. Id. In the instant case Complainant has provided evidence that she sought employment during the period in question. While the Agency argues that Complainant’s evidence is insufficient, the Agency has failed to meet both prongs of the above-mentioned test. Accordingly, the AJ’s finding on back pay is affirmed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has shown she was discriminated against based on race and national origin when she was released from her position of Internal Revenue Agent. We therefore REVERSE the Agency’s final order and REMAND the matter back to the Agency. ORDER (C0610) The Agency is ordered to take the following remedial action: I. Within 45 days of this decision becoming final, the Agency shall offer Complainant the position of Internal Revenue Agent, GS-0512-09 at the Agency’s Small Business/Self-Employed Division in Chicago, Illinois (or some other mutually agreeable position/facility). Complainant shall also be offered benefits and step increases effective November 28, 2006. Complainant shall be given a minimum of 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond her control prevented a response within the time limit. II. Within 60 days of this decision becoming final, the Agency shall pay Complainant the sum of $50,000 in nonpecuniary compensatory damages. III. Within sixty days of this decision becoming final, the Agency shall determine and pay Complainant back pay (with interest, if applicable) and other benefits due complainant pursuant to 29 C.F.R. § 1614.501. If Complainant declines to accept the position, Complainant shall not be entitled to such back pay or benefits. IV. Within thirty calendar days of this decision becoming final, Complainant’s attorney(s) shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. V. Within sixty calendar days of the date this decision becomes final, the Agency, if it has not already done so, shall take corrective, curative, and preventative action to ensure that discrimination based on race and age not recur, including but not limited to providing training against employment discrimination to T. 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. 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. POSTING ORDER (G0610) The Agency is ordered to post at its Small Business/Self Employed Division in Chicago, Illinois facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. 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). ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 October 11, 2011 __________________ Date 2 0720100015 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720100015