U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anne C.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency. Appeal No. 0120132758 Agency No. USA-2011-01021 & DJ Number 187-8-264 DECISION On July 9, 2013, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 4, 2013, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant United States Attorney, GS-15, at the Agency's United States Attorney's Office, Southern District of Alabama in Mobile, Alabama. On December 9, 2011, Complainant filed an EEO complaint alleging that she was discriminated against and harassed causing a hostile work environment based on her sex (female), age (58), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 1. Agency management attached a memorandum dated July 27, 2011, to her appraisal for calendar year 2010, which contained incorrect information and unfair hostile remarks about her integrity and competence; and 2. On August 1, 2011, Agency management denied her request to serve as an instructor at the National Advocacy Center (NAC) and as an Evaluation and Review Staff (EARS) evaluator. Following an investigation, the Agency issued a FAD finding no discrimination. Complainant filed a prior complaint on June 7, 2009. Following an investigation, on February 29, 2012, the Agency issued a FAD (prior FAD) finding that management subjected Complainant to a retaliatory hostile work environment based on EEO activity. It found the environment started after April 21, 2009, when Complainant became the EEO Representative for Assistant United States Attorney 1 and management's near complete termination of communication with her. Prior FAD, at 3, 43. The Agency recounted that Complainant stated that her first line supervisor (S1), the Criminal Chief, ceased to trust and communicate with her, and would no longer meet with her without a witness present. It recounted S1's statement that she only communicated with Complainant via email or in the presence of a witness and characterized herself "like a porcupine and nervous and on high alert" in all her interactions with Complainant because she perceived her as always having an ulterior motive for her conversations. Discussing S1 perpetrating discriminatory harassment against Complainant in June and August 2010, the Agency found that management repeatedly stated they acted against Complainant because they did not trust her, but these actions coincided repeatedly with Complainant's EEO activity. Prior FAD, at 38. The Agency found that the following incidents contributed to management's retaliatory hostile work environment against Complainant when: a. In a meeting on September 8, 2009, S1 told her she had "performance problems," which had not been mentioned previously, and notified her that she was being reassigned (immediately) from her position on the Organized Crime Drug Enforcement Task Force (of about 22 years) to another assignment in the Criminal Division - low-level cases, including misdemeanors; b. Starting in January 2010, S1 required her to submit prosecution memoranda a week earlier than the deadlines set for other Assistant United States Attorneys; c. In March 2010, S1 criticized her work performance and told her to meet with her daily; d. On June 30, 2010, and August 4, 2010, S1 referred her to the Agency's Office of Professional Responsibility for incidents which occurred in 2005, 2007, and 2008 (the Agency also found this was independently actionable); and e. On November 1, 2 and 3, 2010, S1, sometimes with the Deputy Criminal Chief, informally counseled her about ethical lapses involving her prosecution strategy regarding her use of grand juries, target letters, and subpoenas. The Agency also found that the retaliatory hostile work environment included S1 and the Deputy Criminal Chief ordering Complainant not to speak to the United States Attorney, her third line supervisor, about the November 2010 accusations. It found that this was part of a general tendency by management to use isolation against Complainant. Prior FAD, at 43. Regarding incident (a), in the prior FAD the Agency recounted that S1 stated she denied Complainant's request for a month to prepare her files for transfer because she feared she would tamper with the files, and after reassigning her searched her shred box. S1 only found duplicates. S1's decision to reassign Complainant was authorized by Complainant's second line supervisor. The Agency did not credit managements' reasons for reassigning Complainant, finding its statements regarding her were not credible. Prior FAD, at 32. Specifically, in the prior FAD it found that the evidence did not support that Complainant was unproductive, that the quality of her work or integrity deteriorated in 2008 or 2009 (she received an overall fully successful rating for 2008, with outstanding ratings in the elements of case handling and productivity), or that she made improper use of a sheriff's deputy in her cases. The sheriff deputy matter regarded S1 questioning Complainant's integrity. The Agency found that there was no evidence the deputy ever engaged in any behavior requiring a disclosure under the Agency's Giglio policy, or that S1 was aware of any integrity problems with the deputy. The Agency found that the evidence indicated that in September 2009, the overall tenor of feedback Complainant received from her supervisors changed abruptly from support to harsh criticism, and S1's criticism of Complainant as having performance problems contributed to the retaliatory hostile work environment. The Agency explicitly questioned the good-faith of management regarding all the above. Prior FAD, at 35, 39. In questioning management's good faith in the prior FAD, the Agency found that managements' criticism of Complainant's performance and integrity, reassigning her, and reporting her to the Office of Professional Responsibility was consistent with the contentions of former Assistant United States Attorney 1, a second former Assistant United States Attorney and a former Legal Assistant/Paralegal Assistant that management established a pattern of retaliating against him and employees who assisted him in his EEO claim. The Agency found that according to the statements of these witnesses, shortly after Assistant United States Attorney 1 made his claim against the Agency, management abruptly and inexplicably gave those employees mediocre or poor performance ratings, assigned them to positions of reduced significance for which they were poorly trained, filed Office of Professional Responsibility complaints against the attorneys, scrutinized their work inordinately, and cut off all ordinary communication with them. It found the Office of Professional Responsibility referrals disturbing. The Agency found that managements' treatment of Complainant fit this pattern. Prior FAD, 34 - 35, 37 - 39. Regarding incident (b), S1 explained that Complainant's prosecution memoranda did not meet the minimal standard of competence, and she refused to comply with her guidance. The Agency found incident (b) contributed to the hostile work environment. Regarding incident (c), S1 gave Complainant a memorandum dated March 17, 2010, cautioning that despite being reassigned to general crimes, her performance barely met the minimum requirements to receive a successful rating, she was in danger of being rated unacceptable, and criticizing the form and substance of her writings, ethics and candor. S1 warned therein that if Complainant did not improve she may be placed on a Performance Improvement Plan (PIP). Complainant stated that S1 said she needed to consult her daily for guidance. The Agency found that its analysis on S1 accusing Complainant of having "performance issues" in September 2009, applied here and that incident (c) contributed to the retaliatory hostile work environment. Regarding being referred in June 2010 and August 2010, to the Office of Professional Responsibility, in the prior FAD, the Agency found that such referrals are serious and can seriously affect the career of the attorney referred, and the managements' reasons for doing so were pretexts for reprisal discrimination. In its prior FAD the Agency concluded that over a two year period, management subjected Complainant to a variety of negative actions designed to isolate her and make her vulnerable to additional adverse personnel actions. It found that management had a near complete termination of communication with her, made unusual criticisms of her work, was hostile in scrutinizing her work products, made deadlines no one else had to meet, involuntarily reassigned her, and referred her to the Office of Professional Responsibility. The Agency also found that Complainant was aware management severely punished coworkers who also engaged in protected activity, further supporting a finding of hostile work environment. It found that management offered marginally legitimate explanations for its actions regarding Complainant which were questionable when addressed specifically, but unconvincing when addressed in the aggregate. It found that the incidents must be considered in light of their very close proximity to Complainant's involvement in Assistant United States Attorney 1's EEO claim and her own EEO claim. On January 25, 2011, S1 was moved out of her role of Criminal Chief and returned to being a line Assistant United States Attorney. She ceased supervising Complainant. Nevertheless, shortly after Complainant's second line supervisor gave a transcribed statement in November 2010 for Complainant's prior complaint, and around the same month S1 did so (February 2011), S1 consulted with the Agency's Office of General Counsel to draft a PIP on Complainant. See Report of Investigation (ROI) for prior Complaint USA-2010-00233, at bates stamp page 21, ROI for the current complaint, hereinafter referred to as ROI, Exh. F at 10. Complainant's second line supervisor stated S1 indicated she was concerned with Complainant's overall performance and strongly wanted to put her on a PIP, and after S1 worked on three draft versions thereof in succession over a few months, the Office of General Counsel was not satisfied a PIP was appropriate. ROI, Exh. F, at 10 - 11. S1 stated that because of this, and because S1 was no longer Criminal Chief and Complainant was performing well and seemed to get along with the new Criminal Chief (Complainant's new direct supervisor) who assumed his role on February 1, 2012, he decided that Complainant should be given an appraisal with a rating of satisfactory along with a memorandum which expressed managements' concerns. Using about 90% of the language in the draft PIP, but refashioning and softening it a bit, Complainant's second line supervisor drafted the July 27, 2011, memorandum. Id. at 12 -13. By its terms, the memorandum would not be attached or part of Complainant's 2010 performance appraisal or placed in her Official Personnel File. Complainant's third line supervisor stated that the memorandum was to be discarded after a year. It was signed by S1, Complainant's second line supervisor, and the new Criminal Chief, albeit he was not involved in any way in the creation of the document. Complainant's second line supervisor stated it was not considered a disciplinary action. In the eleven page July 27, 2011, memorandum, management communicated to Complainant that it had serious concerns about her ethics and lack of candor, including complying with Agency policies, and raised serious issues with the quality of her prosecution memorandums. A prosecution memorandum is a document reviewed by management so it can understand the case against a criminally charged individual. In the memorandum, management described its version of Complainant's actions in six cases as a vehicle for setting out criticisms. Regarding Complainant's actions in one case, management wrote they "caused serious concerns about your ethics and your lack of candor." S1 previously referred Complainant in June 2010 to the Office of Professional Responsibility on his matter. In its prior FAD the Agency found that the factual basis for the referrals was dubious, and regarding the identical matter above found it was significant that Complainant's coworker who worked on the same case with Complainant stated S1 and the Deputy Criminal Chief would not let her submit an affidavit in Complainant's favor. The Agency found in its prior FAD that the documentary evidence indicated that Complainant had reasonable explanations for the referred incidents that might have allayed any good faith concerns by S1 and the Deputy Criminal Chief, but neither sought such explanations. Regarding identical matter, in the current FAD the Agency found that despite managements' claims to the contrary, no evidence indicated Complainant ever made any deliberately deceptive statements in her filings with the Court. In the July 27, 2011, memorandum, the management described Complainant's actions in another case which was also discussed in the March 17, 2010, performance memorandum. The Agency in its prior FAD found that this memorandum was retaliatory. In the current FAD, the Agency found that management in the July 27, 2011, memorandum alleged Complainant failed to timely disclose relevant information to management in two other cases. The Agency found that the evidence failed to establish that Complainant's alleged omissions were intentional or indicative of a lack of candor. It concluded that management may have exaggerated Complainant's lack of candor. Regarding a fifth case, management asserted that Complainant determined that a robbery should be charged under a federal statute which applied as a general rule to cases involving organized crime, gang activity, or wide-ranging schemes where the issue of interstate commence must be addressed, rather than as a carjacking, but the indictment and Complainant's prosecution memorandum had to be returned to her on July 1, 2010, because she failed to address the issue of interstate commerce. Management asserted that while Complainant corrected the issue, she only did so after being directed to do so, and the original prosecution memorandum revealed that her charges were not fully considered and evaluated. Complainant explained that the defendant was first indicted in May 2010, which was replaced with a superseding indictment on June 24, 2010. She supported this with a print-out of the court docket. ROI, Exh. K-3, at E-16 to E-18. Complainant countered that S1 signed the superseding indictment, indicating her approval, and it was never returned to her. ROI, Exhs. J, at bates stamp 372 and L-1, at bates stamp 695 - 696. Documentation in the record reflects that on July 1, 2010, S1 emailed Complainant that she wanted her to address the commerce clause issue in her case, and Complainant replied that before charging the case she spoke with an attorney in the Gang Unit who handles carjacking and the Hobbs Act (interstate commerce issues). She wrote that she just spoke with her again to ensure everything was covered and would address it in a short memo to be attached to the prosecution memo. ROI, Exh. L-1, at bates stamp 703. The court docket does not show another superseding indictment. The defendant pled guilty, and was sentenced to a term of over 15 years. Regarding Complainant's actions under the sixth case, management charged that while S1 signed the indictment, she wanted Complainant to prepare an addendum to the prosecution memorandum that better addressed the issue of venue, and any superseding indictment should include specific acts, not generalized statements. Management also indicated that the next round of indictments in this case involving two other defendants lacked specific instances of mail or wire fraud in furtherance of mortgage fraud and the evidence seemed to establish a substantive violation of loan fraud against one of the later defendants that was not charged and her prosecution memorandum did not address this. Complainant countered that the prosecution memorandum clearly indicated venue was proper, and the allegations regarding the wire fraud conspiracy charge were off the mark because the statute does not require overt acts. Complainant's new supervisor wrote Complainant's performance appraisal for January 1, 2011 - December 31, 2011. He rated Complainant outstanding overall, with ratings of outstanding in four of five elements, including ethics and professionalism. He lauded Complainant's performance, writing for example, that she prosecuted a mortgage fraud case involving numerous properties, straw purchasers, and thousands of documents involving four defendants, with the lead defendant being sentenced to five years, forfeiting almost seven million dollars, and paying restitution of almost this amount. The case received national press coverage. He also wrote that Complainant successfully prosecuted a celebrated environmental crime case, another major mortgage fraud case resulting in seven guilty pleas and over six million in restitution, and complex cases facing statute of limitations, and gave further impressive examples. Complainant's second line supervisor signed off on the appraisal as the reviewing official. Complainant stated that after receiving her 2009 appraisal on March 17, 2010, S1 and her second line supervisor denied her teaching opportunities by at NAC and participation as an EARS evaluator, which she had done over almost the past 20 years most years. Complainant stated that in August 2011, when she met with her third line supervisor in the presence of her new supervisor to respond to July 27, 2011, memo, he responded to her request to him, which she made about two weeks before, about NAC and EARS. According to Complainant, her third line supervisor said that because of her lack of candor and the things mentioned in the July 27, 2011, memo, he would not allow her to do either activity. ROI, Exh. D, at 49. Complainant's third line supervisor countered that regarding this matter, at the August meeting he told Complainant that he decided not to allow her to participate in NAC and EARS, but he told her under her new supervisor things were going well, his decision was not permanent, and let's see how things continue to go under the new supervisor and perhaps his decision would be revisited at the end of the year. ROI, Exh. E, at 15 - 15, 29 - 30. The new supervisor's account of what Complainant's third line supervisor said at the meeting mirrored the account of the third line supervisor. ROI, Exh. I, at 14. The third line supervisor explained his decision thus. He stated that Complainant expressed concern that her transfer from the Organized Crime Drug Enforcement Task Force to the General Crimes Unit, where she would be handling more white color cases, presented a challenge to her, as well as being assigned older cases there where the statute of limitations was about to run. He stated that at least in part, his thought was to free Complainant up from extracurricular type activities so she could focus on learning new law and dealing with it daily - his denial was not a penalty, but rather to allow her to focus more on her duties which she found to be challenging given her recent reassignment. ROI, Exh. E, at 16, 26 - 27. In a document in the investigative file of her prior complaint, Complainant wrote that when she was reassigned to General Crimes, she was given several cases that were fast approaching the statute of limitations. In another document therein, Complainant wrote that when she was informed of the reassignment decision, she told S1 that giving her cases to work on that involved crimes she never prosecuted would be difficult on her. In support of her claim for damages in the prior complaint, Complainant's daughter wrote she watched her mother panic over trying types of cases she never tried in her tenure at the United States Attorney's Office. In its FAD, the Agency found that there was no evidence that Complainant was subjected to discrimination based on her age or sex. Regarding reprisal discrimination, the Agency conceded that receiving a memorandum with eleven pages of accusatory criticism would dissuade a reasonable employee from engaging in protected activity. But the Agency found it highly significant that the memorandum was not placed in Complainant's official personnel file, which was inconsistent with a retaliatory motive. It found that it was reasonable for management to communicate to Complainant their serious concerns about her performance - something they had failed to do in the past. It found that while certain aspects of the July 27, 2011, memorandum were troubling, it was not so disturbing as to create a hostile work environment. The Agency also found no discrimination regarding Complainant being denied the opportunity to participate in NAC and EAR. ANALYSIS AND FINDINGS On appeal, Complainant argues that the Agency retaliated against her for EEO activity. She does not argue that she was subject to discrimination based on race or age. To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 (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). With respect to element (5), an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). In the prior FAD, the Agency found that Complainant was subjected to a hostile work environment in reprisal for her EEO activity. S1 was a primary perpetrator of the harassment. Much of this harassment took the form of S1 harshly criticizing Complainant's performance, candor, and integrity. We find that evidence shows S1 was the primary force behind the issuance to Complainant of the highly critical July 27, 2011, memorandum to Complainant. Starting around February 2011, the same time she gave a transcribed investigatory EEO statement on Complainant's EEO complaint and was returned to her line position, S1, who felt strongly about putting Complainant on a PIP, began multiple successive drafting efforts to do so, but her efforts failed to pass muster with the Agency's Office of General Counsel. Complainant's second line supervisor then decided to repurpose and soften the PIP draft language when he decided to create and draft the July 27, 2011, memorandum instead. But when S1's successor rated Complainant outstanding and lauded her performance for calendar year 2011, the second line supervisor signed off on that as the reviewing official. This suggests the second line supervisor was more in a supporting role, and the direct supervisors took the lead in assessing performance and conduct of Assistant United States Attorneys and communicating this to them. When viewed in isolation, the Agency's finding that the July 27, 2011, memorandum did not rise to the level of retaliatory harassment is somewhat plausible. But we don't view the memorandum in isolation. We view it as another incident of harassment in the hostile work environment starting in April 2009. It involves the same perpetrators, the same type of harassment - harsh criticism of Complainant's performance, integrity and candor, and is close in time to previous incidents - starting in February 2011 S1 started work drafting a succession of proposed PIPs, which did not pass must muster with the Agency's Office of General Counsel, and which Complainant's second line supervisor then toned done and used to write the July 27, 2011, memorandum. In its prior FAD and current FAD, the Agency found several of the incidents cited in the memorandum were suspect. In the prior FAD the Agency already found that S1's lack of trust for Complainant grew out her EEO activity, and that S1's referrals of Complainant to the Office of Professional Responsibility coincided with Complainant's EEO activity. Prior FAD, at 38. The same is true here - much of the criticism of Complainant in the July 27, 2011, memorandum, which grew out of the PIP drafts, was caused by a lack of trust, and the drafts coincided with Complainant's EEO activity. We find that July 27, 2011, memorandum constituted an act of retaliatory harassment against Complainant for her EEO activity. We find that Complainant has not shown that her third line supervisor denying her request in August 2011 for NAC and EARS activity was discriminatory. The third line supervisor explained that since Complainant expressed concerns about working on cases in General Crimes (learning curve, pressing cases with running statute of limitations issues), he wanted her to focus on cases and he would reassess things later. Complainant did express such concerns. While Complainant has excelled, she has not shown the third line supervisor's explanation was pretext to mask discrimination. The FAD is MODIFIED. 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 of no discrimination regarding issue 1, and AFFIRM the Agency's finding of discrimination regarding issue 2. ORDER The Agency is ordered to take the following remedial actions: 1. To the extent it has not already done so, within 30 calendar days after this decision becomes final the Agency shall expunge all copies of critical memorandum dated July 27, 2011, and references thereto from supervisory and other Agency files (and Complainant's official personnel file if placed there). This does not include the Report of Investigation or litigation file in this EEO case. 2. To the extent it has not already done so in connection with the hostile work environment found in its February 29, 2012, FAD, the Agency shall provide training on how to recognize and prevent reprisal discrimination for prior EEO activity for those responsible for the discrimination on issue 1 in this case. 3. To the extent it has not already done so in connection with the hostile work environment the Agency found in its February 29, 2012, FAD, the Agency shall consider disciplining those responsible for the discrimination on issue 1 in this case. 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 shall complete items 2 and 3 within six months after this decision becomes final. 4. The issue of compensatory damages is REMANDED to the agency. On remand, the agency shall conduct a supplemental investigation on compensatory damages, and provide Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages regarding incidents. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a FAD appealable the EEOC determining the appropriate amount of damages within 120 calendar days after this decision becomes final. 5. The Agency shall restore all leave Complainant took as a result of the discrimination on issue 1 in this case. It shall include its calculation of leave restoration in the FAD above on compensatory damages. 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 (G0914) The Agency is ordered to post at its United States Attorney's Office, Southern District of Alabama, in Mobile, Alabama copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 10, 2015 __________________ 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 0120132758 2 0120132758