Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0720140014 Hearing No. 550-2011-00038X Agency No. HS-TSA-00291-2010 DECISION Simultaneous with its December 13, 2013 final order, the Agency file 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 Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of retaliation 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 attorney's fees awarded by the AJ. For the following reasons, the Commission MODIFIES the Agency's final order.1 ISSUES PRESENTED The issues presented are: (1) whether substantial evidence in the record supports the AJ's finding that retaliation was a motivating factor2 for the reduction of Complainant's work hours in October 2009; (2) whether substantial evidence in the record supports the AJ's finding that management made verbal statements in late 2009 and 2010 that constituted per se retaliation; and (3) whether the AJ properly awarded Complainant $67,181.50 in attorney's fees. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Officer (TSO) at the Agency's Southwest Oregon Regional Airport (OTH) in North Bend, Oregon. Complainant's chain of command included the Lead TSO (LTSO), the Supervisory TSOs (STSO1, STSO2), the Transportation Security Manager (TSM), the Assistant Federal Security Director (AFSD), and the Federal Security Director (FSD). On February 8, 2010, Complainant filed an EEO complaint alleging, in pertinent part, that the Agency discriminated against him on the basis of retaliation for prior protected EEO activity (complaining to management - including in an August 28, 2009 meeting, a September 18, 2009 memorandum, and an October 5, 2009 memorandum - about what he perceived to be preferential treatment of female employees over male employees) when, in October 2009, it reduced his full-time schedule to part-time.3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. After a hearing on May 21-22, 2012, the AJ issued a decision on November 4, 2013 finding retaliation. AJ's Decision Initially, the AJ found that Complainant provided credible direct evidence that retaliation was a motivating factor for the reduction of his work hours. Specifically, the AJ found that AFSD and STSO1 made verbal statements that on their face demonstrated a retaliatory attitude and were linked to the reduction of Complainant's work hours. Regarding AFSD, the AJ found that, in an August 28, 2009 meeting with Complainant and STSO1, he stated in response to Complainant's assertion that the Agency's hiring and scheduling practices were discriminatory, "If you pursue this, I have no choice but to reduce your hours." In so finding, the AJ credited Complainant's hearing testimony that AFSD made the statement over AFSD's hearing testimony that he did not. Specifically, the AJ determined that Complainant's version of what happened at the meeting was consistent throughout the EEO process and, to a significant degree, was corroborated by STSO1's hearing testimony that AFSD did not make that exact statement but "[i]t was more like, well, we can always reduce your hours even more."4 In contrast, the AJ determined that some of AFSD's testimony during cross-examination was inconsistent with the testimony of other disinterested witnesses and that "his demeanor suggested a degree of evasion." Regarding STSO1, the AJ found that, shortly after the August 28, 2009 meeting, he stated to Complainant and a male co-worker (CW), "If you guys keep pushing this, they won't let me work you guys more than 20 hours per week." In so finding, the AJ credited Complainant's hearing testimony about STSO1's statement. Specifically, the AJ cited STSO1's hearing testimony that he "might have" had such a conversation with Complainant and CW. In addition, the AJ cited CW's hearing testimony that "[STSO1] inferred" that management's attitude was "keep it up and we'll make sure you don't have a job here." Next, the AJ found that "some OTH manager" and STSO2 made verbal statements in late 2009 and 2010 that interfered with Complainant's right to engage in protected EEO activity and constituted per se retaliation. Regarding "some OTH manager," the AJ found that, in a late 2009 phone call to the emergency contact number listed in Complainant's employee records (his fiancee's home number), the caller threatened Complainant by asking him "what the - f'ing [he] thought [he] was doing, and that [he] was the most hated person in [the Agency], and that - that they ought to come down there and kill [him]."5 In so finding, the AJ credited Complainant's hearing testimony about the caller's statement over management's denials that the call occurred. Specifically, citing AFSD's hearing testimony that he had used that number to contact Complainant on September 30, 2009, the AJ found that OTH management had access to the number in late 2009. In addition, citing STSO1's hearing testimony about an October 7, 2009 OTH leadership meeting, the AJ found that FSD was using profanity and expressing extreme frustration with Complainant in late 2009. According to STSO1, FSD stated at the meeting, "Can't you or [LTSO] deal with this [Complainant] thing? What the f'ing hell is going on at OTH? Do I have to come down there and deal with this situation myself? If I have to come down there, it will be to clean house." Regarding STSO2, the AJ found that, in 2010, she stated to Complainant that she "was extremely disappointed that [he] had made a decision to pursue [his EEO]" and that "it was a poor decision and reflected badly on [his] critical thinking skills and decision-making." In so finding, the AJ credited Complainant's hearing testimony that STSO2 made the statement over STSO2's hearing testimony that she did not. Specifically, the AJ determined that STSO2's "dismissive attitude and demeanor throughout her testimony buttressed the testimony of several witnesses that [she] adopts a 'my way or the highway' attitude towards managing employees." In addition, the AJ noted that STSO2's testimony was contradicted by other witnesses on several issues. Moreover, the AJ found that STSO1 was a credible witness despite the Agency's arguments to the contrary. Although the Agency fired STSO1 in April 2010 (and eventually re-hired him at a different airport after he involved a union attorney), the AJ determined that STSO1 "did not exhibit any bias or tendency to exaggeration." In addition, the AJ noted that STSO1's statement about what happened at the October 7, 2009 OTH leadership meeting was consistent throughout the EEO process, and credited TSM's hearing testimony that "[STSO1] is ... honest as the day is long" and "very trustworthy." Although the Agency argued that STSO1 and Complainant colluded on the EEO complaint, the AJ determined that STSO1's desire to help Complainant with his case could just as likely be related to the fact that STSO1 believed Complainant had been wronged as it could be to some anti-OTH management animus. In addition, the AJ determined that STSO1 "was very forthcoming" about the need for more female screeners at OTH - testimony which directly contradicted Complainant's testimony. Finally, among other things,6 the AJ ordered the Agency to pay Complainant $67,181.50 in attorney's fees. The attorney's fees mostly consisted of work performed by Attorney A, but also included work performed by a Paralegal and Attorney B. The AJ noted that the Agency had argued the following: (1) the approximately 120 hours of work performed by Attorney A before the fee petition was excessive and warranted a 15 percent across-the-board reduction; (2) the relevant community for calculating the reasonably hourly rate for a case in North Bend, Oregon should be Portland, Oregon instead of Los Angeles, California (where Attorneys A and B were located); and (3) there should be a "degree of success" adjustment because Complainant failed to prevail on his sex discrimination claim. Regarding the hours of work performed by Attorney A, the AJ agreed with the Agency that the number was excessive because Attorney A - who did not enter the case until the summary judgment stage - should not have taken that long in opposing summary judgment and preparing for the hearing. The AJ, however, found that a 10 percent across-the-board reduction was more appropriate and reduced the number of hours to 106.45. Regarding the relevant community for the hourly rate, the AJ found that it was undisputed that there were no experienced federal EEO law specialists within commuting distance of North Bend. In addition, citing Complainant's declaration detailing his efforts to secure counsel in Oregon, the AJ found that the Agency did not show that Complainant's decision to retain out-of-town counsel was unreasonable. Regarding the "degree of success" adjustment, the AJ found that a reduction was not appropriate because Complainant's unsuccessful sex discrimination claim in connection with the reduction of his work hours was not distinct in all respects from his successful retaliation claim in connection to the same reduction of his work hours. Specifically, the AJ determined that both claims involved a common core of facts and the same management officials. CONTENTIONS ON APPEAL On appeal, the Agency challenged the AJ's decision with respect to the findings of retaliation and the amount of attorney's fees. First, citing University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct 2517 (2013), the Agency contended that the AJ erred in finding retaliation in connection with the reduction of Complainant's work hours. Specifically, the Agency argued that Nassar required "but for" causation for retaliation claims and the AJ found that retaliation was only a motivating factor for the reduction. Second, the Agency contended that substantial evidence in the record does not support the AJ's findings of retaliation. Essentially, the Agency argued that the AJ erred in crediting the testimony of Complainant and STSO1 about the verbal statements at issue. Regarding Complainant, the Agency asserted that he was not a credible witness because his lack of credibility on other issues (a November 2008 LTSO detail and OTH flight fluctuations) undermined his credibility on the verbal statements. Regarding STSO1, the Agency asserted that he was not a credible witness because he was biased against OTH management, gave contradictory affidavit and hearing testimony about the August 28, 2009 meeting, and provided "nebulous generalities" in his hearing testimony that made it apparent he was testifying untruthfully. Moreover, the Agency asserted that neither Complainant nor STSO1 were credible witnesses because there was evidence that they colluded to manufacture Complainant's retaliation claim. Third, the Agency contended that the amount of attorney's fees the AJ awarded was unreasonable. Regarding the hours of work performed by Attorney A, the Agency argued that the AJ erred in applying a 10 percent instead of a 25 percent across-the-board reduction. Specifically, the Agency asserted that Attorney A should have spent a maximum of 30 hours on the opposition to summary judgment because of the straightforward nature of the disparate treatment and per se retaliation issues. In addition, the Agency asserted that Attorney A should have spent a maximum of 60 hours on the hearing preparation because he called only five witnesses. Regarding the relevant community for the hourly rate, the Agency argued that the AJ erred in finding that it did not show that Complainant's decision to retain out-of-town counsel was unreasonable. Specifically, the Agency asserted that Complainant apparently disregarded the Portland community even though an internet search showed that there were over 20 federal EEO law specialists in Portland - a four-hour drive from North Bend. Regarding the "degree of success" adjustment, the Agency argued that the AJ erred in not applying a one-third fee reduction for the sex discrimination claim it prevailed on. Specifically, the Agency asserted that the retaliation and sex discrimination claims were not inextricably intertwined because they involved different legal theories and different legal standards. In opposition to the Agency's appeal, Complainant requested that we affirm the AJ's decision. Complainant did not contest any part of the AJ's decision. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § VI.B (Aug. 5, 2015). Applicability of Nassar On appeal, the Agency argued that the Supreme Court's decision in Nassar should apply. In that case, the Court analyzed the standard for causation for Title VII retaliation claims, and noted that Congress' specific language in Title VII stating that it is an unlawful employment practice for an employer "to discriminate against any individual ... because of such individual's race color, religion, sex, or national origin" (emphasis added), required the proper causation standard for retaliation claims to be a "but for" standard. However, in Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. § 623). These federal sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. § 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. § 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin"). Based on the above, we reject the Agency's argument that Nassar applies to Complainant's retaliation claim. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140037 (May 29, 2015); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120041 (Mar. 12, 2015). AJ's Finding of Retaliatory Disparate Treatment and Per Se Retaliation A complainant may prove disparate treatment through direct evidence. See Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, § III (Jan. 16, 2008). Direct evidence of discriminatory motive may be any written or verbal policy or statement made by an agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. See id. A "mixed motives" case is one where the evidence shows that the agency acted on the basis of both lawful and unlawful reasons. See id. The Commission has also held that the actions of a supervisor may be per se retaliation when the supervisor intimidates an employee and interferes with the employee's EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yabuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993). Upon review, we find that substantial evidence in the record supports the AJ's findings that: (1) retaliation was a motivating factor for the reduction of Complainant's work hours in October 2009; and (2) management made verbal statements in late 2009 and 2010 that constituted per se retaliation. Regarding (1), the AJ found that the following verbal statements demonstrated a retaliatory attitude and were linked to the reduction of Complainant's work hours: (a) AFSD's statement that, "If you pursue this, I have no choice but to reduce your hours;" and (b) STSO1's statement that, "If you guys keep pushing this, they won't let me work you guys more than 20 hours per week." In so finding, the AJ credited the hearing testimony of Complainant, STSO1, and CW, but declined to credit the hearing testimony of AFSD. Regarding (2), the AJ found that the following verbal statements constituted per se retaliation: (a) an OTH manager's threatening phone call to Complainant; and (b) STSO2's statement that she "was extremely disappointed that [Complainant] had made a decision to pursue [his EEO]" and that "it was a poor decision and reflected badly on [his] critical thinking skills and decision-making." In so finding, the AJ credited the hearing testimony of Complainant and STSO1, but declined to credit the hearing testimony of FSD and STSO2. Although the Agency argued that the AJ erred in crediting the testimony of Complainant and STSO1 about those verbal statements over the testimony of AFSD, FSD, and STSO2, we find that the Agency did not demonstrate that we should not accept the AJ's credibility determinations, which were based in large part on witness demeanor. Specifically, the AJ credited Complainant's testimony after observing and listening to that testimony, and after finding that it was corroborated by STSO1 and CW. In addition, the AJ credited the testimony of STSO1 based on his demeanor ("did not exhibit any bias or tendency to exaggeration") and on TSM's testimony about STSO1's character ("honest as the day is long" and "very trustworthy"). In contrast, the AJ declined to credit the testimony of AFSD and STSO2 based on their demeanor ("demeanor suggested a degree of evasion" and "dismissive attitude and demeanor throughout her testimony"). Although the Agency asserted that Complainant's lack of credibility on other issues undermined his credibility on the verbal statements, the discrediting of a witness on one issue does not require an AJ to discredit the witness on all other issues. See, e.g., Hillen v. Dep't of the Army, 35 M.S.P.R. 453 (1987). Although the Agency asserted that STSO1 gave contradictory affidavit and hearing testimony, we note that the AJ recognized that STSO1 "had a slightly different recollection" at the hearing and chose to credit the hearing testimony. See, e.g., id. (stating that inconsistencies do not necessarily render testimony incredible). Although the Agency asserted that STSO1 colluded with Complainant, we note that the AJ found that STSO1's desire to help Complainant with the EEO complaint could just as likely be related to the fact that he believed Complainant had been wronged as it could be to some anti-OTH management animus. AJ's Award of $67,181.50 in Attorney's Fees Attorney's fees will be computed by determining the "lodestar" - the number of hours reasonably expended multiplied by a reasonable hourly rate. EEO MD-110, Ch. 11, § VI.F.1. The number of hours should not include excessive, redundant, or otherwise unnecessary hours. Id. A reasonable hourly rate is based on "prevailing market rates in the relevant community" for attorneys of similar experience in similar cases. Id. The Commission has held that if a party does not find counsel readily available in the locality of the case with whatever degree of skill that may reasonably be required, it is reasonable that the party go elsewhere to find an attorney. See Harden v. Soc. Sec. Admin., EEOC Appeal No. 0720080002 (Aug. 12, 2011) (citing Southerland v. U.S. Postal Serv., EEOC Appeal No. 01A05403 (Oct. 16, 2002)). The burden is on the agency to show that a complainant's decision to retain out-of-town counsel was unreasonable. See id. The hours spent on unsuccessful claims should be excluded in considering the amount of a reasonable fee only where the unsuccessful claims are distinct in all respects from the successful claims. EEO MD-110, Ch. 11, § VI.F.1. Successfully and unsuccessful claims are not fractionable when they are closely intertwined and involve the same common core of facts. See Mannon v. U.S. Postal Serv., EEOC Appeal No. 0720070074 (Apr. 4, 2012). Upon review, we find that the AJ properly awarded Complainant $67,181.50 in attorney's fees. First, we agree with the AJ that 106.45 hours7 for Attorney A's work in connection to summary judgment and the hearing appear to be reasonable. Specifically, we note that the hours expended by Attorney A in connection to summary judgment included familiarizing himself with a case that he did not enter until the summary judgment stage, reviewing the Agency's 23-page motion (plus 12 attached exhibits), and drafting a 15-page opposition (plus 13 attached exhibits). Moreover, we note that the hours spent by Attorney A in connection to the hearing included preparing for the two-day hearing, attending the two-day hearing, and drafting a 20-page closing brief after reviewing the transcript for the two-day hearing. Second, we agree with the AJ that the Agency did not show that Complainant's decision to retain out-of-town counsel was unreasonable. Specifically, the record contains no evidence that federal EEO law specialists were readily available in North Bend. Moreover, the record does not support the Agency's argument that Complainant apparently disregarded the readily available federal EEO law specialists in Portland. We note that, in a declaration submitted with the fee petition, Complainant stated that he contacted each of the 27 attorneys on the EEOC's Oregon attorney referral list - almost half of whom had Portland mailing addresses - but they all declined to represent him or would not return his phone calls. In addition, Complainant stated that he contacted two attorneys within a 30-minute drive from North Bend, the Oregon Bar Association, and an Agency union attorney - all who declined to represent him. Third, we agree with the AJ that a fee reduction for Complainant's unsuccessful sex discrimination claim was unwarranted because it was not "distinct in all respects" from his successful retaliation claim. Specifically, we note that both claims involved the same common core of facts - the reduction of Complainant's work hours in October 2009. In addition, we note that both claims involved a disparate treatment theory of discrimination. Moreover, we note that both claims involved the same Agency officials and that those same Agency officials testified concerning both claims. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission REVERSES the portion of the Agency's final order which rejected the AJ's findings of retaliation, and AFFIRMS the AJ's findings of retaliation. In addition, the Commission AFFIRMS the amount of attorney's fees awarded by the AJ. The Commission REMANDS this matter to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final: 1. The Agency shall pay Complainant $5,000 in non-pecuniary compensatory damages in connection with the finding of per se retaliation; 2. The Agency shall pay Complainant $67,181.50 in attorney's fees and $1,109.20 in costs; 3. The Agency shall provide eight (8) hours of EEO training to STSO1, STSO2, AFSD, and FSD regarding their responsibilities under EEO laws, particularly the anti-retaliation provision of Title VII. 4. The Agency shall consider taking appropriate disciplinary action against STSO1, STSO2, AFSD, and FSD. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. 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 management officials have left the Agency's employ, the Agency shall furnish documentation of their departure dates. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indicating that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Southwest Oregon Regional Airport in North Bend, Oregon 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)), 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. 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, Ch. 9, § VII (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations __8/19/15________________ Date 1 The Agency's final order affirmed the AJ's finding of no sex discrimination. 2 The AJ, applying a mixed motives framework, found that both retaliatory and non-retaliatory motives were at play and that the Agency would have reduced Complainant's work hours even absent the retaliation. 3 From May to September 2009, Complainant worked approximately 40 hours per week. Beginning in October 2009, Complainant worked approximately 25 hours per week. 4 The AJ noted that STSO1 "had a slightly different recollection" at the hearing compared to his affidavit. 5 Complainant believed that FSD was the caller, but the AJ did not make a factual determination about the specific identity of the caller. 6 The AJ also ordered the Agency to: (a) provide training for OTH management, AFSD, and FSD; (b) post a notice informing OTH employees about the finding of retaliation; (c) pay Complainant $5,000 in non-pecuniary compensatory damages in connection with the per se retaliation; and (d) pay Complainant $1,109.20 in costs. 7 The 106.45 hours is after the AJ applied the 10 percent across-the-board reduction. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720140014 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 12 0720140014