U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Liza B.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service (FSIS)), Agency. Appeal No. 0120152098 Hearing No. FSIS-2011-00410 Agency No. FSIS-2011-00410 DECISION On November 27, 2015, Complainant a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from final Agency decision (FAD 2) dated October 19, 2015, and mailed on October 22, 2015, concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Food Inspector (Slaughter), GS-7 at the Tyson Foods chicken processing plant in Noel, Missouri. When Complainant started in 1992, she worked part-time. The record does not indicate whether she later became full-time. On April 7, 2011, Complainant filed an equal employment opportunity (EEO) complaint. The Agency defined the issue, in relevant part, as whether Complainant was discriminated and harassed based on her disability (Chemical Pulmonitis) when, on February 15, 2011, she was issued a proposed removal. Just after starting the investigation of the complaint, the Agency sustained the proposed removal in a written decision on April 19, 2011, effective upon receipt. The Agency did not update the definition of the complaint. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ), and later withdrew her request. The AJ then ordered the Agency to issue a FAD with appeal rights to the Merit Systems Protection Board. The AJ observed Complainant raised her (upcoming) removal in the complaint process.3 On July 1, 2009, Complainant was exposed to chemical vapor at the plant. The Agency theorized that hypochlorous acid likely reacted with ammonia to form chloramines. Complainant went to the hospital that day. The hospital opined she could return to work in two days without chemical exposure, and referred her to an occupational medical practice. Complainant saw a family practice on July 2, 2009, which put her off work until she saw the occupational medical practice. Complainant visited the occupational medical practice on July 10, 2009, which found she had poor respiration and severe lung restriction. The practice opined Complainant could resume light work immediately, and it was unknown when she could resume regular work. On her fourth visit on August 21, 2009, the occupational medical practice reported the following: Complainant had diagnoses of Chemical Pneumonitis, Severe Pulmonary Restriction, underlying Chronic Obstructive Pulmonary Disease (COPD), narcolepsy (diagnosed in 2007), and insulin dependent diabetes. Complainant had smoked half a pack of cigarettes a day for 45 years. She reported having difficulty with shortness of breath beginning in January 2009, only walking about 200 feet before getting short of breath and dizzy, difficulty standing erect, difficulty getting words out and sometimes jumbling them, not being able to walk upstairs, and feeling like she staggers with the sensation of being somewhat drunk. The practice indicated that Complainant should not return to the workplace with exposure to chemicals, specifically chlorine, ammonia, or methane, and was not a candidate for a respirator because she does not have the functional capability to wear one. The practice also raised the issue of how much of this is because of chemical inhalation versus underlying COPD/previous smoking history. Complainant's first line supervisor (S1) stated that prior to July 1, 2009, after chemical exposures reached a certain point Complainant had difficulty breathing, coughed and had asthma attacks, frequently needed to get off the line, rest away from it, and use a rescue inhaler before resuming work. In September 2009, Complainant got another doctor's note to stay off work. On October 8, 2009, Complainant made or reaffirmed in writing a request for reasonable accommodation for a Centers for Disease Control (CDC) approved a full face mask with an air supply. Complainant submitted an October 2009 doctor's note that she would not be released for duty without a full respirator mask. Report of Investigation (ROI), Ex. F5, at 3/bates stamp 71. The request was forwarded to the FSIS Environmental, Health and Safety Branch in Beltsville, Maryland, which denied it on November 20, 2009. Among other things, the Branch opined that a full-face mask air supply respirator with either a tank or airline supply (long hose to an external air supply) was not feasible. The Branch Chief stated that a tank respirator is designed for short-term use (typically 30 - 60 minutes), and an airline respirator's long hose could cause other employees on the floor to trip and/or fall. He provided catalog pages with the two types of respirators which described the tank respirator as supplying 30 minutes of air for atmospheres immediately dangerous to life or health, and included a lumber supported backpack for improved balance and mobility, and the airline respirator had options for 50 and 100 foot hoses. A Branch Industrial Hygienist wrote that for an airline respirator there was no way to deliver supplied air with a compressor or air pump, and air quality could not be guaranteed. After July 1, 2009, Complainant never returned to work. She stated that whenever she came to the plant to submit time and attendance information and other paperwork, she asked S1 if there was some office work, paperwork, or other work she could do, and he always said no. The District Manager for the Lawrence, Kansas District Office, which oversees Kansas and Missouri, Complainant's fourth line supervisor (S4) stated Complainant's physician restricted her from being exposed to chlorine, ammonia, and methane, and the District does not have a facility without those chemicals. S4 stated Complainant could not perform as an Inspector in any facility with those restrictions. In its decision removing Complainant, the Agency explained that the reason was excessive absenteeism, and was not a judgment on why she was absent. On September 30, 2014, the Agency issued FAD 1. Citing 29 C.F.R. § 1614.107(a)(5), the Agency found that the proposed removal was not an adverse action because it was a proposal to take a personnel action. However, treating failure to accommodate as an independent claim, the Agency also found that it had failed to reasonably accommodate Complainant. It found, in relevant part, that management discriminated against Complainant based on disability when, after denying her the respirator,4 it failed to engage further in the interactive process and consider any alternative accommodation options. Specifically, the Agency found that where an employee can no longer perform the essential functions of her position even with accommodation, the employer must reassign the employee to an equivalent vacant position for which the employee is qualified, absent undue hardship, and if there is no equivalent position in pay or status, the employee must be reassigned to a lower-graded position for which she is qualified, absent undue hardship. As relief, the Agency provided Complainant an opportunity to submit evidence showing she sustained compensatory damages; and if she was represented by counsel to submit a verified statement of attorney fees and costs within 30 days of receipt of the decision.5 As remedy, the Agency did not offer to resume the reasonable accommodation process or to reinstate Complainant. In FAD 1, the Agency did not update its explicit definition of Complainant's complaint as being on her proposed removal, and provided appeal rights to this office, not the MSPB. Complainant did not appeal FAD 1. Thereafter, Complainant, represented by counsel, submitted her evidence of compensatory damages, and requested back pay. Complainant requested $1,903.81 in past pecuniary damages for medication, and $30,338.28 in future pecuniary damages for medication for the rest of her life. She stated that she developed major depression and anxiety because she did not have employment which caused extreme financial distress, and the medication was to treat these conditions. Complainant also requested nonpecuniary compensatory damages of $300,000. She requested back pay from when she stopped working in July 2009 through the present, with wage and step increases as appropriate. Complainant stated that sometime in 2010, she was approved for Social Security Disability (SSD) retirement. She stated that she would not have applied for SSD retirement if the Agency had provided an accommodation that allowed her to work, and believed she would still be working today if she was accommodated. In a declaration, Complainant stated that her supervisors did not consider reassigning her to a lower level position or to another facility within or outside the commuting area. She asserted that SSD retirement should not be deducted from any back pay she receives. Without identifying an amount or providing documentation, Complainant generally requested reasonable attorney fees. Thereafter, the Agency issued FAD 2. The Agency characterized FAD 1 as finding management discriminated against Complainant based on disability when she was issued a notice of proposed removal because they failed to accommodate her disability. In FAD 2 the Agency found that once there is a finding of discrimination, there is a strong presumption of an award of back pay, and awarded Complainant back pay from the time she was terminated to being approved for SSD retirement. The Agency reasoned there was no evidence health care providers told Complainant to stop working or she would have stopped after she was terminated. But citing Federal 7th Circuit caselaw, the Agency found back pay should be cut off after Complainant was approved for SSD retirement because approval therefore requires proof that an individual is incapable of working. Since Complainant retired on SSD before she was terminated, the Agency's award formula resulted in the payment of no back pay. The Agency awarded $384 in past pecuniary damages. It reasoned that Complainant requested reimbursement for seven medications, but only three were for depression and anxiety. The Agency denied future pecuniary damages because Complainant's request was not supported by documentation - she failed to be reasonably specific about the course of treatment and anticipated duration. Finding that Complainant stated she had severe stress, deep depression, lack of concern for her appearance, lack of desire to engage in social pursuits, crying fits, fear, difficulty concentrating, and memory issues, the Agency awarded Complainant $5,000 in nonpecuniary damages. The Agency in FAD 2 did not notify Complainant of her right to request attorney fees, and gave appeal rights to this office. On appeal, Complainant argues that she should be awarded the compensatory damages she requested, back pay with interest from the date she stopped working until the date the Agency accommodates her or determines that accommodation is not possible, and attorney fees. She argues that under the collateral source rule, SSD retirement payments should not be deducted from back pay. ANALYSIS AND FINDINGS Back pay In FAD 2 the Agency found that Complainant was entitled to back pay from the date she was terminated until she was approved for SSD retirement. Generally, a complainant must be ready, willing, and able to work during the period of back pay recovery to receive back pay. The Commission has stated that if an agency can present persuasive evidence that complainant was not able to work during the back pay period, back pay would not be awarded. However, the agency has the burden of proof. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 11-15 (as revised, Aug. 5, 2015), citing Morman v. Dep't. of Defense (Defense Commissary Agency), EEOC Petition No. 04A10006 (July 31, 2002). Under Commission policy and caselaw, back pay does not cut off because a complainant is approved for SSD retirement. See McKelvey v. United States Postal Service, EEOC Appeal No. 0120054980 (May 7, 2007); EEOC Enforcement Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990 (ADA) (Feb. 12, 1997)(available at eeoc.gov)(while the ADA definition of "qualified person with a disability" requires consideration of reasonable accommodation, eligibility for SSD retirement does not consider whether a person can work with reasonable accommodation. It is a violation of public policy to force people to choose between applying for disability benefits, including SSD, and vindicating their rights under the ADA. Because of the fundamental differences in the definitions used in the ADA and the terms used in disability benefits programs, including SSD, an individual can meet the eligibility requirements to receive disability benefits and still be a qualified individual with a disability for ADA purposes. Thus, a person's representations that she is "totally disabled" or "unable to work" for purposes of disability benefits are never an absolute bar to an ADA claim). At the time she stopped working, Complainant was 58 years old, and now is age 66. With her claim for compensatory damages, Complainant submitted medical records from June 20, 2012 through December 18, 2014, from the Decatur Medi Clinic which provides her primary care, and a hospital record for an overnight stay starting on June 19, 2012. Among other things, the hospital record reflected admission diagnoses of altered mental status (very confused, flat), diabetes, and seizure disorder, that Complainant's mental status may have been secondary to low blood sugar and when advised how control her diabetes, including being faithful to an insulin regimen, she essentially replied that she was not interested in those actions. A July 2012 record reflects diagnoses of uncontrolled diabetes, COPD, chronic joint pain, depression and anxiety. In August 2012, Complainant was further diagnosed with early dementia. She was the caretaker for her two grandchildren because their parents were unable to do so, and the need for an alternate caretaker was discussed should her dementia progress. Complainant also complained of low back pain radiating down to her hips, difficulty with her balance and equilibrium, especially when walking outside on uneven ground, falling daily, and that her depression was exacerbated by her difficulty performing daily tasks outdoors without falling. In February 2013, Complainant reported to her physician that with medication she was not forgetting conversations as much. She was also being treated for restless leg syndrome by this point. In July 2013, Complainant was assessed as having chronic back pain, and in November 2013, was assessed with a diabetic foot ulcer and diabetes related neuropathies (symptoms range from weakness, numbness, and pain). In the Fall and Winter of 2014, Complainant sought treatment for chronic back pain and upper thigh pain. The Office of Workers' Compensation Programs (OWCP) denied Complainant's claim for worker compensation for injuries arising from her July 1, 2009 chemical exposure. Thereafter, she filed a claim with OWCP for carpel tunnel syndrome. According to the February 15, 2011, notice of proposed removal, OWCP accepted this later claim on December 28, 2009 with wage loss benefits that were later terminated on August 1, 2010. Complainant, based on health care provider's opinion, believed she could not work as a Food Inspector (Slaughter) without a full face respirator with an air supply. In FAD 1, the Agency found that it would not substitute its judgment for the safety personnel who found this proposed solution a safety hazard. As Complainant did not appeal FAD 1, this matter is not before us. The Agency went on to find in FAD 1 that Complainant was denied reasonable accommodation, and management failed to explore the reasonable accommodation of offering Complainant a reassignment to a (funded) vacant position for which she was qualified (with or without reasonable accommodation). In FAD 2, the Agency found Complainant is entitled to back pay. We will not disturb this finding, but find that the Agency started back pay too late. In FAD 1, the Agency found that management failed to provide Complainant reasonable accommodation and she was discriminated against based on her disability when after denying her the full-face respirator, management failed to consider any alternative reasonable accommodation options, i.e., reassignment. Management denied the full-face respirator on November 20, 2009. Accordingly, we find that the back pay period starts on November 20, 2009. The back pay period shall continue for the length of time it is determined there was a funded vacant Agency position for which Complainant was qualified and could perform with or without reasonable accommodation. In determining whether there were any such positions, the Agency only need look at jobs Complainant would have accepted. This will require the Agency to gather facts to support any determination on back pay. The Agency must solicit from Complainant her qualifications (e.g., a resume), the geographical locations she would have accepted a reassignment to, and when she planned on retiring. Further, given the record medical evidence which was recounted herein, there is some question on whether Complainant was ever available for reassignment to work in any funded, vacant positions the Agency may determine were available. Given this, the Agency may request from her, at Agency expense, all medical records related to her ability to work in jobs at the Agency to which she could have been reassigned meeting the above criteria, and for how long. This includes the medical records from all of Complainant's health care providers, the medical records Complainant submitted to the Social Security Administration to receive SSD retirement benefits, and any medical documentation generated by the Social Security Administration related to her disability retirement. Further, if the parties disagree on whether Complainant medically could have worked in any Agency positions to which she could have been, the Agency may, at its own expense, conduct independent medical examinations relevant to Complainant's ability to work, and/or interview her on her ability to work therein. The purpose of gathering these facts is to determine if and/or when Complainant could have been reassigned and work in Agency positions for the purpose of determining whether the Agency's denial of reasonable accommodation resulted in Complainant being denied employment at the Agency, and hence when and if she was eligible for back pay.6 We agree with Complainant that her SSD retirement payments are not deductible from back pay, and disagree with the Agency's argument to the contrary. The common law collateral source rule holds that an agency's liability shall not be reduced merely because the complainant's net damages are reduced by payments received from others. Arnelson v. Social Security Administration, 128 F.3d 1243, 1248 (8th Cir. 1997) (Civil Service Retirement System (CSRS) disability retirement disability benefits) are not deductible from back pay award. Disability benefits are from a collateral source and should not be considered interim earnings. Disability benefits do not come entirely from the agency since the complainant contributed to his CSRS disability retirement fund); Franklin v. United States Postal Service, EEOC Petition No. 04A20006 (Jan. 28, 2003) (followed Arnelson). We find that the reasoning in Arnelson applies to SSD retirement benefits as, Complainant unquestionably contributed to the social security retirement fund. Also, any employer Complainant had other than the Agency would have made contributions to this fund. Further, tracking additional reasoning in Arnelson regarding CSRS, the Social Security Administration is a separate legal entity from the Agency, and SSD benefits are made to carry out a social policy wholly independent of a back pay award. However, any wage loss compensation benefits Complainant received from OWCP during the same period she gets back pay are deductible from back pay. EEO MD-110, at 11-4 to 11-5. This includes Complainant's OWCP wage loss compensation benefits unrelated to injuries from being exposed to chemical vapor, i.e., for carpel tunnel syndrome. Compensatory Damages Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and non-pecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov.) Non-pecuniary losses are losses that are not subject to precise quantification including emotional pain and injury to character, professional standing, and reputation. Compensatory damages are awarded to compensate for losses or suffering inflicted due to discrimination. Damages for past pecuniary damages will not normally be sought without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals of actual losses and expenses. Id. Non-pecuniary Damages In support of her claim for compensatory damages, Complainant in January 2015 stated that after she stopped working in July 2009, she was financially ruined, had to go on food stamps which she remains on today, lost her car, which is a necessity in a rural area, and would have lost her house had her daughters not lent her money. She was under constant, severe stress from being unemployed, and went into a deep depression. While in her deep depression Complainant went for days at a time without getting out of bed, would not shower, bathe, or get dressed. During this time and to the present she constantly felt scared and would break down crying. She had trouble concentrating and completing the most basic tasks. She was depressed and anxious. Prior to July 2009, Complainant had a positive attitude, took pride in dressing nicely and looking good, and was socially active. In her January 2015 statement, Complainant's sister corroborated Complainant's statement, and added that Complainant went from being a happy go lucky person to now being sad most of the time, and now looks like a homeless person and someone in a nursing home. In her January 2015 statement, Complainant's daughter also corroborated Complainant's statement, and added that during the first several months after she stopped working, Complainant stayed in bed or sat in a chair all the time, was quiet, would break down crying, and when she talked it was always about the job, wanting to work, and not knowing how she was going to financially survive. Complainant's daughter wrote that Complainant did not go outside for three years, has gotten a little better, but there are still times she goes back into a deep depression. In her January 2015 statement, Complainant's granddaughter added that for a long time after losing her job, any time Complainant talked it was always about her job, not having money, she was going to lose her car and house, and how unfair it was that the Agency did not keep her working. Complainant's medical documentation, off and on pretty much throughout reflected complaints about depression and anxiety that waxed and waned. In her September 2011 investigatory affidavit, Complainant stated that because of her Chemical Pulmonitis, she cannot go out in public, must be careful where she sits in church because of perfume and hair spray, has a loss of concentration and memory, needs reminders to do things, gets dizzy, can't walk far, and uses oxygen for night sleeping. She added that she has also developed vascular tachycardia. Based on the record and prior Commission cases, we find that Complainant sustained $22,500 in non-pecuniary damages. Flowers v. United States Postal Service, EEOC Appeal No. 01A43114 (Oct. 7, 2004), request for recon. denied, EEOC Request No. 05A50243 (Jan. 11, 2005) ($20,000.00 where complainant established that, despite other contributing factors, discrimination resulted in sleeplessness, depression, emotional distress, many episodes crying, anxiety, loss of enjoyment of life and strained family relationships and her loss of income by being unemployed causing her significant stress and anxiety); Martina S. v. Department of Homeland Security (Citizenship and Immigration Services), EEOC Appeal No. 0120160001 (Jan. 24, 2017) ($25,000 where as a result of the discrimination the complainant had familial strain, stress, anger, frustration, sleep and eating issues, and an apparent heart attack that she and her daughter believed was caused in part by the Agency's discrimination). In awarding $22,500, we consider that while Complainant suffered from depression and anxiety which at times were severe, this was partly due to her declining physical health, not the Agency's discrimination, and while the Agency found discrimination, the record does not establish at this point that it had a funded, vacant position that Complainant was qualified for and could perform with or without reasonable accommodation to which she could have been reassigned and would have accepted. Pecuniary Damages The Agency awarded $384 in past pecuniary damages. It reasoned that Complainant requested reimbursement for seven medications, but only three were for depression and anxiety. In her declaration, Complainant stated that for her depression and anxiety she was currently on Clonapan (Clonazepam), Lorazepam (Ativan), Ambien (Zolpidem), and Lexapro (an apparent reference to Citalopram - known as Celexa). The Agency reimbursed Complainant for her past expenses for Citalopram ($194.20), Lorazepam ($80), and Alprazolam (Xanax) ($109.80). The Agency denied reimbursing Complainant for her past expenses for Clonazepam and Lamotrigine, reasoning they were primarily for seizures, Zolpidem, reasoning it was for insomnia, and Bupropion, reasoning it was to help stop smoking. Because Complainant does not contend that she took Bupropion and Lamotrigine were for depression and anxiety, we affirm the Agency's denial of reimbursement for these medications. Complainant contended she took Clonapan ($190.40 in past expenses) and Ambien ($473.25 in past expenses) for anxiety and depression. We take administrative notice that while Clonazepam is prescribed for seizure disorder, it is also used to treat panic disorder, a form of anxiety. Further, difficulty sleeping is a symptom of anxiety and depression. We also find that it is more likely than not that Complainant's anxiety and depression were caused both by not being provided work and her reaction to her declining physical health. For example, in November 2012, one of Complainant's health care providers related that her depression was exacerbated by her difficulty performing daily tasks outdoors without falling, and Complainant attributed her symptoms of not going out and loss of concentration and memory both to Chemical Pulmonitis and depression. Accordingly, we award Complainant 50% of her past expenses for Clonazepam and Ambien, i.e., an additional $331.80 in past pecuniary damages. We agree with the Agency's denial of future pecuniary damages to cover the costs of medication. Complainant's statement that a doctor, who she did not identify, suggested to her that she will likely have to take mediation for depression for the rest of her life is insufficient to prove a claim for future pecuniary damages. Sorg v. Department of Commerce, EEOC Appeal No. 0720060065 (July 23, 2008) (doctor's statement that complainant would need to continue prescribed medications indefinitely found insufficient to support claim for future medical expenses). CONCLUSION FAD 2 is MODIFIED as discussed above. The matter is REMANDED to the Agency for further processing pursuant to the following Order. ORDER 1. The Agency shall determine the appropriate amount of back pay if any, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no later than ninety (90) calendar days after the date this decision was issued, in accordance with the rulings and guidance in this decision, above, which sets forth when the back pay period starts and what matters the Agency should investigate and account for in determining back pay. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. In addition to issuing payment to Complainant within the 90-day period, the Agency shall also issue a written final decision to Complainant, appealable to this Commission, detailing the evidence it relied upon in setting the amount of back pay awarded. 2. To the extent it has not already done so, the Agency shall pay Complainant $715.80 in past pecuniary damages and $22,500 in non-pecuniary damages, for a total of $23,215.80, within sixty (60) calendar days after the date this decision was issued. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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's signature Carlton M. Hadden, Director Office of Federal Operations August 31, 2017 __________________ 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 On May 8, 2015, Complainant prematurely filed her appeal, which was still pending when the Agency issued the FAD. 3 We add that a proposed action merges with the decision on an action appealable to the MSPB (i.e., a proposed removal merges into a decision to remove). Complainant v. Department of Health and Human Services, EEOC Appeal No. 0120130459 (Aug. 28, 2014). 4 The Agency declined to substitute its judgment for that of Agency safety officials who determined that a full-face respirator with air supply would constitute a safety hazard. 5 It does not appear Complainant was represented by counsel when FAD 1 was issued. 6 Because the Agency in FAD 1 did not find Complainant was entitled to reinstatement and she did not appeal FAD 1, the Agency is not required to offer her reinstatement. But if the Agency offers Complainant a new position meeting the above criteria she can currently work in, it can cut off back pay from the date she starts working therein or rejects the offer. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152098 13 0120152098