U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Collin R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 0120113831 Agency No. 4E-800-0205-07 DECISION Complainant timely filed an appeal from the Agency's April 16, 2008, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES in part and AFFIRMS in part the Agency's final decision. ISSUES PRESENTED The issues presented are whether the Agency properly determined that Complainant is not an individual with a disability, and whether Complainant has shown that he was discriminated against as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency's Valmont Station in Boulder, Colorado. On September 13, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against and harassed him on the bases of race (Caucasian), and in reprisal for prior protected EEO activity arising under the Rehabilitation Act when: 1. since June 18, 2007, he has been harassed, and not allowed to start his tour of duty early. He amended his complaint on November 15, 2007, and alleged discrimination on the bases of physical disability (bilateral osteochrondral defects to the medial talar domes to both ankles, soft tissue stress and moderate tendonitis) and in reprisal for prior protected EEO activity arising under the Rehabilitation Act when: 2. on unspecified dates, management would not accommodate his medical restrictions; 3. he was not accommodated with a stool at his work station; and 4. on November 2, 2007, his request for a temporary schedule change was disapproved. 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final agency decision, the Agency first found that claim 3 should be dismissed for res judicata, as a claim that had already been "fully and fairly litigated." The Agency found that it was the same claim as had been addressed in the EEO complaint filed by Complainant on December 22, 2006, Agency No. 4E-800-0030-07, which was the subject of EEOC Appeal No. 0120080977 (issued concurrently with this decision). The Agency noted that the AJ in that case had found that Complainant had not established that he was an individual with a disability. The Agency did not cite any section of 29 C.F.R. § 1614.107 to support its dismissal. It also stated that, "should an appellate body disagree" with its dismissal, "the merits of the claim will also be analyzed below." Addressing the merits of Complainant's complaint, the Agency found the following facts. Regarding claim 1, Complainant claimed that the Postmaster subjected him to harassment when the Postmaster threatened to charge him with Absent without Leave (AWOL) for attending an EEO settlement conference. Complainant also claimed that the Agency attorney telephoned him at work "constantly," had him paged over the intercom, and acted unprofessionally. Complainant claimed that he had been subjected to more than 24 street observations, but had not been given any documentation on the inspections. The Agency noted that Complainant's route was inspected in June 2007, during a time frame when many other employees had their routes inspected as well. Complainant further alleged that he was harassed by his Supervisor when his condition caused him to go over his projected office time; by his Manager when his leave request to attend the union picnic was denied; when he was regularly rushed to clock out when returning from street time; and when he was not allowed to attend a Labor/Management meeting. Complainant also claimed that although his usual tour start time is 8:00 a.m., when he is assigned to Route 101, he should be allowed to start at 7:30 a.m., when the other carriers assigned to Route 101 are allowed to start. Complainant claimed that the Agency was not accommodating his medical restrictions. His listed restrictions included working eight hours per day, not working on non-scheduled days, light-duty activities, resting his feet at frequent intervals, and using a stool while casing letters. Complainant claimed he had been forced to work more than eight hours on occasion, and that his Supervisor directed him to return to his route, in violation of his restrictions (which he refused to do). Complainant also alleged in claim 3 that the Agency was failing to accommodate his disability by not providing a stool at his work station. He testified that on a number of dates, beginning on August 29, 2006, and continuing through November 2, 2007, he had requested a stool at his work station. 2 As to claim 4, Complainant had claimed that on three dates in November 2007, his request for a temporary schedule change was denied. The record evidence showed that Complainant had made requests for temporary schedule changes on twelve occasions, and that all were approved except for the requests in November 2007. The Agency first found that Complainant had not demonstrated through medical evidence that he was a person with a disability under the Rehabilitation Act. It found that he had not shown that his bilateral ankle condition was substantially limiting. Citing medical notes dated July 31, 2007, and November 1, 2007, the Agency concluded that Complainant had not provided an explanation of how the major life activities of walking and standing were affected and to what extent. It then concluded that Complainant's claim of failure to accommodate (claim 3) must fail because the Agency has no obligation to accommodate someone who was not an individual with a disability. The Agency further found that Complainant had not established a prima facie case of race discrimination on any of his claims, as it found that he had not suffered any adverse actions and was not aggrieved by any of the Agency's actions which he claimed constituted a pattern of harassment. It also found that he had not established a prima facie case of race discrimination because he had not provided evidence that other, similarly-situated individuals not of his protected class had been treated any differently or more favorably. Specifically, the Manager testified that prior to October 20, 2007, temporary schedule change requests were approved for Carriers to report to work early, but as of that date he changed the starting time for all Carriers to 7:30 a.m. and informed them that there would be no more early starts. Prior to that date, temporary schedule change requests were approved for Carriers of all races. As to Complainant's claim of retaliation, the Agency found that Complainant had shown that he had engaged in protected EEO activity, and that management officials were aware of his EEO activity. But it found that Complainant had not shown that he was aggrieved by any of the Agency's actions, or that there was any causal connection between his protected EEO activity and the alleged adverse treatment. Finally, as to Complainant's claim of harassment, the Agency found that Complainant belonged to statutorily protected classes, but that he had not shown that he was subjected to unwelcome verbal or physical conduct involving his protected classes of race and prior EEO activity. It also concluded that Complainant had not shown that the behavior of which he complained was sufficiently severe or pervasive such that it altered the conditions of his employment. The incidents in question were found by the Agency to be either trivial in nature, such as the denial of his request to attend the union picnic, or actions that the managers were required to perform in order to keep operations running smoothly, such as reprimanding him for extending his street time or supervising his delivery. Assuming the Complainant had established his prima facie cases, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency attorney denied that he had "constantly" called Complainant at work, stating that he had contacted Complainant at work on two occasions for scheduling in Complainant's prior EEO case. Complainant's Manager stated that Complainant's requests to start his tour early had rarely been denied, until November 2007. The Postmaster testified that all employees are given street observations or inspections and the Manager testified that Complainant had been given one or two since June 2007. The Postmaster denied threatening to charge Complainant with AWOL if he went to the EEO settlement conference. Complainant's Supervisor affirmed that Complainant had gone over his office time by one hour and eleven minutes on October 15, 2007, and that he spoke to Complainant about it and what his office time should be based on his mail volume. The Agency found that it had no obligation to accommodate Complainant in his request for a stool, based on his failure to show that he was an individual with a disability under the Rehabilitation Act. The Postmaster stated that Complainant had not requested that the Agency follow any medical restrictions, and that he was not aware of Complainant being required to work more than 8 hours a day or being required to work on his day off. The Postmaster also stated that Complainant had not been denied the use of a stool, but that he was able to sign one out for use once a week when he was assigned to route 1007. The Manager affirmed that Complainant had removed himself from the overtime desired list in October 2007, and that Complainant could not work more than 8 hours per day. Finally, the Manager stated that Complainant's requests to change his schedule were always on Saturdays and that the request on November 2, 2007 was denied because there was not enough mail available at 7:00 a.m. for Carriers to be efficient when starting that early. No Carrier was permitted to start as early as 7:00 a.m. because there was not enough mail available at that time. The Agency concluded that Complainant had not shown its reasons to be pretext for discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal. CONTENTIONS ON APPEAL In his statements in support of his appeal, Complainant first argued that he had attempted to request a hearing for this case in a request dated March 7, 2008. He stated that the Agency had not properly sent the investigative file and hearing request notice to his representative, and that copy for the representative was sent to Complainant's home address, but was not addressed to him so he did not open the package. Complainant also stated that a Letter of Removal which was issued to him on March 17, 2008, was evidence of further retaliation for his EEO complaints. He claimed that the Postmaster had also engaged in reprisal against his spouse, also an Agency employee, once his removal had been effectuated.3 He argued that his restrictions were known to the Agency, that his doctor has stated he has permanent restrictions, that he is substantially limited in major life activities, and that he is an individual with a disability under the Rehabilitation Act. Complainant also submitted a detailed rebuttal of the Agency's statements in the investigative file. He claimed that all the managers knew of his restrictions, that he needed a stool at his work station so that he could case the mail, and that he was the only carrier who was singled out with having to go retrieve and sign out a stool from the register room in order to have it for his use. The Agency did not submit any statement in opposition to Complainant's appeal. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS In initial matters, we first find that the Agency's attempted dismissal of Complainant's Rehabilitation Act claims under the principle of res judicata is incorrect. The claims of failure to accommodate in the instant complaint and those at issue in EEOC Appeal No. 0120080977 differ with respect to the time that the accommodation requests were made. Under our well-established case law interpreting 29 C.F.R. § 1614.107(a)(1), to dismiss a complaint as the same claim, the claims would have to have identical dates of occurrence. The dates of Complainant's accommodation requests in this complaint occurred after Complainant had requested a hearing in his previous complaint. However, as the Agency went on to analyze the merits of Complainant's claim, we find that the mistaken attempt of dismissal was harmless error. We also find that Complainant did not timely request a hearing after receiving the investigative file in this complaint. The record shows that Complainant listed his home address as the address for his EEO representative, and so any mail that came to his home from the Agency addressed to an EEO representative, he should have reasonably expected would be in relation to his EEO case. The record also shows that the Agency sent a copy of the investigative file addressed to Complainant at his home address, so two copies were received by Complainant. Finally, we note that Complainant filed an EEO complaint, Agency No. 4E-800-0066-08, regarding his removal from the Agency. An inquiry to the Agency with respect to the status of this mixed-case complaint resulted in the information that Complainant was issued a final agency decision on July 28, 2008, with appeal rights to the Merit Systems Protection Board (MSPB). He appealed to the MSPB and the complaint was settled. The content of that settlement agreement was not divulged. Individual with a Disability/Reasonable Accommodation This case arose before January 1, 2009, the effective date of the Americans with Disabilities Act Amendments Act of 2008, which made a number of significant changes to the definition of disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Because these matters occurred in 2007, the Commission will use the analytical framework as it existed before the enactment of the ADA Amendments Act of 2008, to determine whether Complainant is an individual with a disability. Under the Commission's regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). To be entitled to a reasonable accommodation, Complainant must first show that he is an individual with a disability, within the meaning of the Rehabilitation Act. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. 29 C.F.R. § 1630.2(g). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner, or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. In EEOC Appeal No. 0120080977, the Commission affirmed the finding of an AJ that Complainant had not demonstrated that he was an individual with a disability at the time of his requests for an accommodation from August 2006 through March 2007. The AJ emphasized to the Agency in his decision that his finding was predicated on the fact that Complainant's medical documentation, at the time of his requests, did not show that he was an individual with a disability. He also cautioned the Agency that his finding did not mean that in the future Complainant would not be able to show an entitlement to a reasonable accommodation. He based his assessment of potential future coverage on the medical documents Complainant had submitted in connection with the instant complaint. We now find that Complainant is an individual with a disability, and that he is substantially limited in the major life activity of standing. Complainant's medical documentation shows that on November 1, 2007, his physician wrote that Complainant's "disabilities of the ankles have given him limited ability to stand for more than a few minutes at a time." She recommended the use of a stool at Complainant's work station when he is casing mail. This documentation was not among the evidence examined by the AJ in his decision at issue in EEOC Appeal No. 0120080977. Therefore, as Complainant is covered by the Rehabilitation Act, we find that he was entitled to a reasonable accommodation in May 2007, August 2007 and November 2007, the times of the requests at issue in this complaint. There is no dispute that Complainant is an otherwise qualified individual with a disability, and can perform the essential functions of his position. Complainant asked to have a stool at his work station, and not to have to go retrieve it from elsewhere in the facility, unlike the other Carriers. The AJ in EEOC Appeal No. 0120080977 expressed his opinion that the Agency did not appear to have a claim of undue hardship with respect to its failure to provide a stool for Complainant in his work station, except for the preference of the regular Carrier at that work station. We agree that the Agency has not shown an undue hardship in this instance. Although the Postmaster agreed that Complainant could use a stool when assigned to that work station, he was required to go to the register room, sign out the stool, and carry it across the work area in order to use it. We do not find that this was an effective accommodation for Complainant, especially given his limitations in standing and walking, and given that his disability affected his ankles. Additionally, we find that Complainant may be entitled to compensatory damages for the Agency's failure to accommodate him. Where a discriminatory practice involves the provision of a reasonable accommodation, damages may be awarded if the agency fails to demonstrate that it made a good faith effort to provide the individual with a reasonable accommodation for his disability. 42 U.S.C. § 1981a(a)(3); Morris v. Department of Defense, EEOC Appeal No. 01962984 n.3 (October 1, 1998); Gunn v. U.S. Postal Service, EEOC Appeal No. 0120053293 (June 15, 2007). In this case, the Agency did agree at one point that Complainant could have a stool, but Complainant had to go get it himself each time he was at that work station. He was not able to keep the stool at the work station in question due merely to the preference of the regular Carrier assigned to that route. We find that forcing Complainant to walk to obtain his own accommodation, in the face of the fact that his disability affected his standing and walking abilities, was not an action done in good faith. Complainant is therefore entitled to present a claim for compensatory damages on the Agency's failure to accommodate him. See West v. Gibson, 527 U.S. 212 (1999). Disparate treatment To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Assuming Complainant has established his prima facie cases of race, disability, and reprisal discrimination on his claims of disparate treatment regarding his requests to change his start times, his claims that he was subjected to additional route inspections and his other allegations, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not shown any of these reasons to be pretext for discrimination. Harassment To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the complainant's statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897. 903-905 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant has not established a claim of harassment based on any of his claimed bases. He has not established that the Agency took any of the alleged discriminatory actions on the bases of his race or disability or in reprisal for his protected EEO activity. We similarly find that the Agency's actions were not severe or pervasive enough to alter the conditions of Complainant's work environment; therefore Complainant's claim of harassment must fail. 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 finding on Complainant's reasonable accommodation claims, and we AFFIRM the Agency's final decision on Complainant's remaining claims finding that Complainant did not established that he was discriminated against as alleged. ORDER Within sixty (60) days of the date this decision becomes final: 1. The Agency shall provide Complainant with a reasonable accommodation in the form of a stool at his work station or any other accommodation agreed upon, following the parties engaging in the interactive process to determine Complainant's current needs. 2. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's failure to provide a reasonable accommodation. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than sixty (60) days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 3. The Agency shall provide eight (8) hours of training to the responsible management officials regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and in particular, its duties regarding reasonable accommodation. The Commission does not consider training to constitute disciplinary action. 4. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 5. The Agency shall post a notice in accordance with the paragraph below. 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. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we POSTING ORDER (G0914) The Agency is ordered to post at its Valmont Station in Boulder, Colorado 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 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 (M0815) 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 Chap. 9 § VII.B (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 (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 (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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 We note that Complainant filed a complaint on this issue which covered the dates from August 29, 2006, through March 9, 2007 (when the EEO investigation was completed). The alleged failure to accommodate during that time frame was addressed in EEOC Appeal No. 0120080977. 3 Commission records show that Complainant's spouse filed an EEO complaint based on reprisal, which the Agency dismissed for failure to state a claim. In EEOC Appeal No. 0120082814 (May 28, 2009), we affirmed the Agency's dismissal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113831 2 0120113831