Kristy E., Complainant v. Ken L. Salazar, Secretary, Department of the Interior (Bureau of Indian Affairs), Agency. Appeal No. 0720120037 Hearing No. 443-2009-00071X Agency No. BIA-09-0007 DECISION Following its August 8, 2012, 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. On September 6, 2012, Complainant filed a cross appeal to the Agency's final order, which was consolidated with the Agency's appeal for the purposes of judicial economy.1 For the following reasons, the Commission REVERSES the Agency's final order. ISSUES PRESENTED The issues presented on appeal are: (1) whether substantial evidence in the record supports the AJ's finding that Complainant was subjected to reprisal for her prior protected EEO activity when she was not selected for a GS-13 Supervisory Highway Engineer position; and (2) whether the AJ's award of $25,000 in non-pecuniary compensatory damages is appropriate. BACKGROUND On December 10, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Native American), national origin (Santee Sioux), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 20, 2008, she was not selected for the position of Supervisory Highway Engineer, GS-13, for the Great Plains Region, Division of Transportation, located in Aberdeen, South Dakota. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation2 and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on September 23, 2011, and issued a decision on July 31, 2012. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected her to discrimination as alleged. AJ's Decision The AJ found the following facts: Complainant had been employed by the Agency before accepting a position with the Federal Highway Administration. Complainant had engaged in prior protected EEO activity during her employment with the Agency. Complainant had named the selecting official (SO) in the instant complaint as a responsible management official for her prior EEO case. On or about May 15, 2008, the Agency announced a vacancy for a Supervisory Highway Engineer in Aberdeen, South Dakota. The vacancy announcement included a "Selective Placement Factor," requiring applicants to have a Professional Engineer (PE) certificate. "Indian Preference" was applicable to the vacancy announcement, requiring that the Agency may not hire a Non-Native American candidate, if there is a qualified Native American candidate available. The Agency was aware that Complainant was a Native American candidate who did not possess a PE certificate. Complainant and the selectee (Non-Native American, male, no prior EEO activity) were the only two candidates who applied for the position. Complainant was subsequently rated as non-qualified for the position because she did not meet the PE certificate requirement. In accordance with Agency policy, management must recommend a selective placement factor to the Human Resources (HR) Department. The HR Classification Specialist evaluates the proposed selective placement in relation to the duties of position and determines whether to recommend the selective placement. The SO changed the position description (PD) to require that an applicant have a PE certificate to qualify for the position. The SO did not recommend the change to HR. A Civil Engineer Technician, GS-11, testified that he did not believe that the Supervisory Highway Engineer position required a PE certificate. The AJ found that Complainant failed to establish that she was subjected to discrimination based on her sex, race, and national origin. The AJ noted that the selecting official encouraged and assisted both male and female Native American employees in pursuing promotional opportunities. The AJ did find, however, that the SO subjected Complainant to reprisal for her prior protected EEO activity when she was not selected. The AJ found that Complainant established a prima facie case of discrimination based on reprisal, finding that she had a history of prior EEO activity that management was aware of. The AJ noted that the Agency changed the requirement of the position to suit another employee. The AJ noted that the Agency violated its own policy when it changed the PD without going through the proper channels. The AJ noted that an employer's failure to follow its own policies may support a finding of discrimination. The AJ found that Complainant established that the Agency's non-discriminatory reasons were pretext to mask retaliatory animus. The AJ noted that this position did not require a PE certificate in the past, and it was common knowledge that Complainant would apply for the position. The AJ noted that the SO unilaterally changed the PD, knowing that Complainant would apply. The AJ found that Complainant established that the use of the PE requirement was discretionary and its use was calculated to eliminate Complainant from consideration. Having determined that the Agency subjected Complainant to reprisal, the AJ addressed Complainant's request for damages. The AJ noted that Complainant alleged that the Agency's actions caused her mental anguish, emotional distress, and damage to her reputation. The AJ further noted that Complainant had to modify her family arrangements. The AJ awarded Complainant $25,000 in non-pecuniary compensatory damages. The AJ also ordered the Agency to offer Complainant the position of Supervisory Highway Engineer and provide her with back pay. The Agency subsequently issued a final order rejecting the AJ's finding that it had subjected Complainant to reprisal based on prior protected EEO activity and rejected the relief ordered by the AJ. Complainant filed a cross appeal. CONTENTIONS ON APPEAL On appeal, the Agency contends that there is no evidence that Complainant was subjected to reprisal based on prior protected EEO activity. The Agency contends that Complainant previously filed an EEO complaint on March 7, 2008, when she was not selected for a Supervisory Highway Engineer position with the Agency's Midwest Regional Office. The Agency contends that although the SO was aware of Complainant's prior EEO activity, he was not aware of the allegations involved in the complaint. The Agency contends that Complainant has provided no evidence of a nexus between her prior protected activity and the Agency's use the selective placement factor. The Agency contends that the PD was amended by the SO due to changes in the position. The Agency contends that the change in the PD was signed off by a classification specialist and the Deputy Regional Director for Indian Services. The Agency contends that there are similar positions throughout the Agency that require a PE certificate. The Agency contends that its determination to update the Supervisory Highway Engineer Position and include a PE certificate was a trend throughout the Agency. The Agency contends that the AJ misstated facts and failed to impose the burden of establishing pretext upon Complainant. The Agency contends that Complainant filed an identical claim against another region that was dismissed. In response, Complainant argues that there is clear evidence that the SO subjected her to reprisal based on prior EEO activity. Complainant argues that the PE certificate was not required at the time she applied for the position. Complainant argues that she previously filed an EEO complainant, naming the SO as a responsible management official. Complainant also argues that she established that she was subjected to discrimination on the bases of race, national origin, and sex. Complainant also asserts that she should be awarded $300,000 in non-pecuniary compensatory damages for emotional distress and damage to her career and reputation. 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. 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 for 29 C.F.R. Part 1614 (MD-110), Chap. 9, at § VI.B. (Nov. 9, 1999). ANALYSIS AND FINDINGS Disparate Treatment Reprisal Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), affd, 545 F.2d 222 (1st Cir. 1976). 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, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). For instance, to establish a prima facie case of disparate treatment, Complainant must show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) she was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Defense, EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Social Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2000). Complainant may establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 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 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). Upon review, we find that the AJ's finding that Complainant was not selected to the Supervisory Highway Engineer position due to her prior protected EEO activity is supported by substantial evidence in the record. The record reflects that Complainant previously filed EEO complaints, of which management was aware. Hr'g Tr., at 50-56. Complainant previously worked at the Agency's Aberdeen office as a Highway Engineer. We note that the SO was contacted to be witnesses in an EEO case that Complainant filed. Supplemental Report of Investigation (ROI), Ex. R, at 4. We also note that Complainant had a pending EEO complaint against the Aberdeen office at the time she filed the instant complaint. Supplemental ROI, Ex. Q4. As such, we find that Complainant established temporal proximity, and therefore has established a nexus. Additionally, we note that temporal proximity is not the only way one may establish that a nexus existed. Walton v. Dep't of Army, EEOC Appeal No. 0120072925 (July 10, 2012) (despite three-year difference between protected activity and adverse action, record established that supervisor was motivated by reprisal towards complainant's previous protected EEO activity). We note that Complainant also filed an EEO complaint against the Aberdeen office that was settled on November 17, 2005. Id. Therefore, we agree with the AJ that Complainant established her prima facie case of reprisal for prior protected EEO activity. Next, the Agency must articulate a legitimate, nondiscriminatory reason for its actions. In the instant case, the Agency asserted that the Supervisory Highway Engineer Position required that the successful candidate possess a PE certificate. This explanation meets the Agency's very light burden of production under Burdine. In the final step in the analysis, the inquiry moves to a consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus towards Complainant because of her prior protected EEO activity. Id. at 256. Here, there is no dispute that the SO changed the PD to require that an applicant have a PE certificate to qualify for the position. Supplemental ROI, Ex. S, at 5-6. We note that a Civil Engineer Technician testified that he did not believe having a PE was requirement of the position. Supplemental Report of Investigation (ROI), Ex. V at 3. We also note that the Civil Engineer Technician testified: Q. Was it known in the office that [Complainant] would most likely be applying for the position? A. Yes, I would say it was common knowledge that [Complainant] would most likely apply. There were several conversations that occurred in the office during coffee breaks . . . . It was known that if [Complainant] were to apply, she would have a good chance at the position because she . . . had experience with the Agency and because of her heritage. Id. at 2. The record reflects that in order for the PE certificate requirement to be used, the SO was required by policy to recommend the change of the PD to the HR Department for approval. Hr'g Tr., at 110-112. However, the record does not reflect that HR approved such a change in accordance with Agency policy. Supplemental ROI, Ex. T and U. We note that the Classification Specialist responsible for approving the change to the PD stated that she did not recall speaking or receiving a memo from the SO regarding the change. Id. We also note that if Complainant rated qualified for the position, she would have received Indian Preference and would have been considered over the selectee who was not Native American. Complainant and the selectee were the only two candidates who applied. Complainant has clearly established that the SO changed the PD to include the PE certificate in order to intentionally exclude her from the position. Therefore, we find that the AJ's finding that Complainant was not selected to the Supervisory Highway Engineer position due to her prior protected EEO activity is supported by substantial evidence in the record.3 Compensatory Damages The AJ awarded Complainant $25,000 in non-pecuniary compensatory damages. Complainant requests $300,000 for emotional stress, loss of income for training, travel cost to visit family, and damage to her professional reputation. To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recon. den'd, EEOC Request No. 05940927 (Dec. 8, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (Guidance) (July 14, 1992), at 11-12, 14. Objective evidence in support of a claim for non-pecuniary damages includes statements from Complainant and others, including family members, co-workers, and medical professionals. See Guidance at 12-13; Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). An agency is responsible only for those damages that are clearly shown to be caused by the discriminatory conduct. Rivera v. Dep't of the Navy. Complainant bears the burden of showing that her injury is causally connected to her non-selection. Resnick v. Dep't of Homeland Security, EEOC Appeal No. 07A20040 (Oct. 30, 2003) (citing Wallis v. U.S. Postal Serv., EEOC Appeal No. 0950510 (Nov. 13, 1995)). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Guidance at 13. Additionally, the amount of the award should not be "monstrously excessive" standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (Apr. 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). In the instant case, Complainant testified that she had to modify her family needs as a result of the Agency's actions. Hr'g Tr., at 199-200. Complainant testified that her home is in South Dakota and she had to travel back and forth from her current position located in North Dakota. Id. Complainant testified that she is a mother with five children and had to rearrange her family life drastically. Id. Complainant testified that her reputation and character has been trashed throughout the Agency. Id. Complainant testified that she suffered emotional stress as a result of the Agency's actions. Id. After careful consideration of the evidence of record, we find the AJ's award of $25,000 for non-pecuniary compensatory damages is appropriate. We note that the Commission has awarded compensatory damage amounts similar to the amount awarded in this case. See Parker v. Dep't of the Navy, EEOC Appeal No. 0720080062 (Feb. 26, 2009) (following discriminatory non-selection, complainant was awarded $25,000 in non-pecuniary damages where complainant endured emotional pain and suffering, humiliation, difficulty sleeping, weight gain, and loss of enjoyment of life); Utt v. U.S. Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009) ($25,000 in non-pecuniary damages awarded where complainant provided testimony that as a result of discrimination he suffered from stress, low self-esteem, difficulty sleeping and weight gain); Reid v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070077 (Nov. 13, 2009) ($20,000 in non-pecuniary damages awarded where complainant suffered damage to her professional reputation and emotional distress that affected her family due to discriminatory nonselections); Flowers v. U.S. Postal Serv, EEOC Appeal No. 01A43114 (Oct, 7, 2004), req. for recon. den'd, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000 in non-pecuniary damages awarded where the agency's failure to hire complainant resulted in sleeplessness, depression, emotional distress, anxiety, loss of enjoyment of life and strained family relationships). We conclude that an award of $25,000 will adequately compensate Complainant for the emotional harm she suffered as a result of the discrimination. Therefore, we affirm the AJ's award of compensatory damages here. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, and ORDER the Agency to comply with our Order below. ORDER The Agency is ordered to take the following remedial action: 1. The Agency shall offer to Complainant the position of Supervisory Highway Engineer, GS-13, in the Aberdeen, South Dakota office (or some other mutually agreeable position/location) within 30 calendar days of the date this decision becomes final. 2.The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than 60 calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall 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. Within 60 calendar days of the date this decision becomes final, the Agency shall pay Complainant $ 25,000 in compensatory damages. 4. Within 90 calendar days of the date this decision becomes final, the Agency shall provide at least eight (8) hours of comprehensive EEO training to the responsible management official indentified as the SO, with an emphasis on reprisal discrimination in the workplace. 5. The Agency shall consider taking disciplinary action against the responsible management official identified as the SO as being responsible for the discriminatory action perpetrated 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. 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 Great Plains Region, Division of Transportation, Aberdeen, South Dakota, 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 120 calendar days of the dale 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 ten calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 (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 31, 2013 Date 1 Complainant field a cross-appeal, EEOC Appeal No. 0120123397, which the Commission administratively closed, notifying Complainant that her arguments would be addressed in the instant appeal. 2 The Agency provided a report of its supplemental investigation. 3 Given our conclusion that Complainant established that she was subjected to discrimination based on reprisal, we need not address the other alleged bases, as under the circumstances of this case, she would not be entitled to any greater relief. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 BIA090007 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013