U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth C. Smith, a/k/a Clemente M.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Appeal No. 0720140015 Hearing Nos. 560-2012-00226X, 560-2012-00327X Agency No. ARRILEY11DEC05208, ARRILEY12MAR01406 DECISION Following its December 30, 2013, final order, the Agency filed a timely appeal pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ but affirm the AJ's finding of no discrimination with respect to the remaining claims. On January 6, 2014, Complainant filed a cross appeal. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing; (2) whether the AJ properly determined that the preponderance of the evidence in the record established that Complainant was discriminated against based on reprisal with respect to one of Complainant's three claims; and (3) whether the AJ properly awarded $2,000.00 in compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Systems Specialist at the Agency's Fort Belvoir Community Hospital facility in Fort Belvoir, Virginia. Complainant had previously worked as an Information Technology Specialist Systems Administrator at the Agency's Irwin Army Community Hospital (IACH) in Fort Riley, Kansas. In March 2011, Complainant and a coworker were apprehended by Agency police at IACH, and Complainant was cited for Assault on a Law Enforcement Officer, Battery against a Law Enforcement Officer, Criminal Threat, and Obstructing Legal Process or Official Duty. Because criminal activity is considered reportable derogatory information, the IACH Hospital Commander (HC) submitted a Report of Unfavorable Information for Security Determination to the Central Clearance Facility (CCF) regarding Complainant's arrest. According to the record, CCF makes determinations as to whether employees about whom derogatory information has been reported can have secret network access. On May 5, 2011, Complainant was charged with one count of Obstruction, one count of False Impersonation, and two counts of Disorderly Conduct. Complainant had previously filed two employment discrimination complaints. On June 20, 2011, Complainant discussed settling these complaints with Agency Counsel (AC) and the IACH Deputy Commander for Administration (DCA). The parties entered into a formal settlement agreement on June 20, 2011. According to the record, on September 6, 2011, Complainant informed the Agency that he believed that it was in breach of the terms of the June 20, 2011, settlement agreement. The Commission's records for EEOC Appeal No. 0120123312 (May 9, 2013) indicate that on September 1, 2011, Complainant contacted Agency officials including DCA and AC to inform them that he was filing a complaint for breach of the settlement agreement. On July 2, 2011, Complainant began working as an Information Technology Specialist at the Agency's Walter Reed Army Medical Center in Washington, D.C. Complainant subsequently transferred to the position at Fort Belvoir. On August 1, 2011, DCA was having a conversation with a personal friend, a Lieutenant Colonel (LC) who was at some point to assume authority over Fort Belvoir. Among other topics, DCA and LC discussed systemic concerns about security checks, and, in hypothetical terms without using Complainant's name, DCA discussed Complainant's situation. In September 2011, CCF requested an update from IACH regarding Complainant's situation. Because Complainant's criminal charges had not been resolved, IACH reported on September 30, 2011, that Complainant was no longer employed at IACH. On November 9, 2011, Complainant was convicted of three of the four criminal charges. On November 10, 2011, AC emailed DCA and the IACH Security Officer (SO) with public records consisting of the criminal charges against Complainant and the verdict. IACH reported this information to CCF on November 14, 2011. DCA stated that after CCF was provided with an update after the guilty verdict, "that's where our responsibility ends." SO confirmed that IACH was no longer obligated to report to anyone in the Agency on Complainant's case after reporting the verdict to CCF in November 2011. On December 1, 2011, Complainant forwarded an email that he had received regarding IACH business to DCA. Because Complainant was emailing her from an Agency email account, indicating that he still had access to the Agency network, DCA stated that she was concerned that Complainant may not have informed Fort Belvoir about his criminal conviction. On December 2, 2011, DCA forwarded AC's November 10, 2011, email with information about Complainant's charges and conviction to her friend LC and an individual she believed to be the Fort Belvoir Chief Information Officer. This email was subsequently forwarded to the actual Chief Information Officer (CIO). CIO stated that he believed that DCA forwarded the email to ruin Complainant's character or reputation because there was no reason for her to send that kind of information and because she sent it through unofficial channels and in an unsecured fashion. According to CIO, he encrypted the email prior to forwarding it to his supervisors because it contained Complainant's personally identifiable information. This information was forwarded to the Fort Belvoir Deputy Commander for Readiness and Operations, who contacted the Security Office to inquire about Complainant's security clearance. A Personnel Security Specialist (PSS) looked into Complainant's record in the Joint Personnel Adjudication System (JPAS) and noticed that Complainant did not have the required Agency National Check with Inquiries (ANACI) investigation. PSS contacted Complainant to initiate the required ANACI investigation. According to the record, the ANACI investigation was a requirement for all government employees and had nothing to do with Complainant's criminal conviction. According to PSS, the ANACI investigation was subsequently completed, and Complainant suffered no adverse consequences to his employment or network access by submitting to the ANACI investigation. Procedural Background On December 27, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when: 1. On December 2, 2011, DCA and/or SO notified Complainant's current employer of the verdict on criminal charges against him, which found him guilty of three misdemeanors; and 2. On August 1, 2011, DCA contacted a personal friend, LC, in order to block Complainant's employment under false pretenses. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. On May 8, 2012, Complainant filed a second EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when: 3. On March 13, 2012, PSS informed Complainant that he was required to resubmit a Personnel Security Investigation, commonly known as an SF86, for an ANACI investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. The AJ assigned to the case consolidated both of Complainant's complaints. Over Complainant's objections, the AJ granted the Agency's August 5, 2013, motion for a decision without a hearing and issued a decision without a hearing on November 18, 2013. AJ's Decision In her decision, the AJ determined that the record was sufficiently developed for summary disposition. The AJ found that Complainant failed to establish a prima facie case of discrimination based on race or sex because he did not establish that he was treated differently than similarly situated employees outside his protected class or that there was otherwise a link between his membership in the protected class and the adverse employment action. The AJ further found that Complainant failed to establish a prima facie case of reprisal related to claim 1 from his December 27, 2011, complaint or to the sole claim in his May 8, 2012, complaint because there was no evidence that his prior EEO activity was related to DCA's August 1, 2011, conversation or Complainant being required to undergo an ANACI investigation. However, the AJ determined that Complainant established a prima facie case of reprisal with respect to claim 2 of his December 27, 2011, complaint. The AJ found that Complainant established a temporal nexus between his EEO activity and DCA's December 2, 2011, email to Fort Belvoir. Addressing the Agency's argument that DCA was required to report this derogatory information to Complainant's new duty station, the AJ determined that no new information was being reported because IACH had already reported Complainant's conviction to CCF. According to the AJ, DCA was not required to report this information to Fort Belvoir and had no reason to reach out to officials at Complainant's duty station. The AJ concluded that DCA had no obligation to follow up with officials at Fort Belvoir and that she contacted Fort Belvoir in order to interfere with Complainant's employment. The AJ found that this claim was analogous to cases where a former employer provided a negative reference as an act of retaliation or discrimination. The AJ cited Hashimoto v. Dalton, 118 F.3d 670 (9th Cir. 1997) and Meredith v. U.S. Postal Serv., EEOC Request No. 05890714 (Sept. 21, 1989) for the proposition that a negative reference is an adverse action by itself, even if it results in no further negative actions for the employee. Accordingly, the AJ found that the Agency subjected Complainant to reprisal based on prior protected activity. Complainant had presented medical records in support of his claim for damages. However, the AJ determined that Complainant's records did not establish that DCA's actions directly resulted in the medical conditions for which Complainant sought treatment. The AJ awarded Complainant $2,000.00 in non-pecuniary damages based on the amounts awarded in similar cases, including Akinyemi v. Dep't of the Air Force, EEOC Appeal No. 07A10070 (May 15, 2003), and the specific nature, severity, and duration of the emotional and physical distress experienced by Complainant. The AJ also ordered the Agency to provide training to the responsible management officials and to post a notice at Irwin Army Community Hospital and Fort Belvoir. The Agency subsequently issued a final order rejecting the AJ's finding that Complainant proved that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, the Agency contends that the AJ failed to believe the Agency's evidence and draw all justifiable inferences because the Agency was the non-moving party with respect to the reprisal claim. The Agency argues that the AJ's decision without a hearing required her to act as a fact-finder and make credibility determinations. According to the Agency, the AJ erred in finding that Complainant established a prima facie case of reprisal through a temporal nexus. The Agency contends that the five to six months that passed between the signing of the June 20, 2011, settlement agreement and DCA's December 1, 2011, email precluded a finding of a temporal nexus. The Agency also maintains that the evidence in the record did not establish that reprisal was the "but-for cause" of the Agency's action in accordance with University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517 (2013).2 Finally, the Agency contends that the AJ's decision excessively interferes with the Agency's security reporting obligations. The Agency requests that its final order be affirmed. In response to his own appeal, Complainant contends that he should have been awarded more non-pecuniary compensatory damages. According to Complainant, the Agency violated the Fair Credit Reporting Act in disseminating his criminal history. Complainant also argues that the AJ should have found reprisal discrimination with respect to his second complaint. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). Decision without a Hearing We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After careful review of the record, we find that the AJ's issuance of a decision without a hearing was appropriate. We find that the record has been adequately developed and that the parties have had the opportunity to engage in discovery. We find that there are no issues of credibility that need to be resolved at a hearing. Race and Sex Discrimination Neither party contests the AJ's finding that Complainant did not establish by a preponderance of the evidence that he was subjected to discrimination based on race or sex. We see no reason to disturb this finding on appeal. Reprisal for Prior Protected Activity Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Once a complainant establishes a prima facie case of reprisal discrimination, the burden shifts, in accordance with McDonnell Douglass, 411 U.S. 792 to the Agency to articulate a legitimate, non-discriminatory reason for the action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The complainant then has the burden of proving by a preponderance of the evidence that the reason offered by the Agency is a pretext for a discriminatory motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). Complainant does not contest the AJ's finding that the preponderance of the evidence did not establish that he was subjected to discrimination based on reprisal with respect to his first claim, and we see no basis to disturb this finding. With respect to DCA sending the December 2, 2011, email, the Agency does not contest that the Complainant established the first three prongs of a prima facie case. Accordingly, we consider whether Complainant established a causal nexus between his protected activity and the adverse treatment. The Agency's contends that Complainant failed to establish a temporal nexus because five to six months passed between the signing of the settlement agreement and DCA's December 2, 2011, email. However, we disagree. We note that the record reflects that Complainant notified the Agency that he believed it to be in breach of the June 20, 2011, settlement agreement on September 6, 2011. The Commission's records further reflect that Complainant notified DCA around that time that he was planning to do so. Under the facts of this case, including DCA's significant personal involvement in Complainant's prior EEO activity, we determine that Complainant has established a prima facie case of discrimination on the basis of reprisal. The burden now shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. The Agency's legitimate, nondiscriminatory reason is that DCA believed that she was obligated to report Complainant's criminal conviction to Fort Belvoir personnel. However, we find that Complainant has established by a preponderance of the evidence in the record that the Agency's legitimate, nondiscriminatory reason was pretext designed to mask the more likely explanation, which is that DCA was motivated by unlawful retaliatory animus. Both DCA and SO testified at the investigative fact-finding conference that IACH's obligation to report on Complainant's conduct ended when that information was reported to CCF in November 2011. Further, CIO testified that he could see no reason for DCA to send the email through unofficial channels to Fort Belvoir, especially because the email was unsecured and contained Complainant's personally identifiable information. Accordingly, we find it more likely than not that DCA was motivated by unlawful retaliatory animus when she sent the December 2, 2011, email. Turning to Complainant's final claim, we affirm the AJ's finding that Complainant was not subjected to discrimination based on reprisal when he was required to submit to an ANACI investigation. The preponderance of the evidence in the record establishes that Complainant was required to submit to this routine investigation as a government employee. Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful discrimination or harassment under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of this "make whole" relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000. 42 U.S.C. § 19814(b)(3). To receive an award of compensatory damages, a complainant must demonstrate that he has been harmed as a result of the agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for recons. denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14, 1992), at 11-12, 14. Although damage awards for emotional harm can greatly vary, and there are no definitive rules governing amounts to be awarded, compensatory damage awards must be limited to the amounts necessary to compensate the complainant for actual harm, even if that harm is intangible. Id. at 7. It should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. See Carpenter v. Dep't of Agriculture, EEOC Appeal No. 01945652 (July 17, 1995). The absence of supporting evidence may affect the amount of damages deemed appropriate in specific cases. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). In Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993), the Commission explained that "objective evidence" of non-pecuniary damages could include a statement by a complainant explaining how she was affected by the discrimination. A complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Based on our review of the evidence in light of the Commission's cases regarding non-pecuniary compensatory damages awarded for emotional harm, we find that the AJ's award of $2,000 in non-pecuniary compensatory damages is consistent with Commission precedent and will adequately compensate Complainant for the emotional distress he suffered as a result of the Agency's discrimination. 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 determination with respect to claim 2 because the preponderance of the evidence in the record establishes that discrimination occurred. The Commission remands claim 2 to the Agency to undertake remedial action in accordance with this decision and the ORDER set forth below. We AFFIRM the Agency's determination of no discrimination with respect to the remaining claims. ORDER To the extent that it has not already done so, the Agency shall undertake the following actions: 1. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall pay Complainant compensatory damages in the amount of $2,000. 2. Within ninety (90) calendar days after the date this decision becomes final, the Agency shall provide mandatory EEO training, with a specific emphasis on reprisal, to the responsible management officials. 3. Within sixty (60) calendar days after the date this decision becomes final, the Agency shall post notices 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. POSTING ORDER (G1016) The Agency is ordered to post at its Fort Belvoir Community Hospital and Irwin Army Community Hospital facilities 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 was issued, 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 (H1016) 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 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 (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 (M0416) 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. The requests 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 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 3-16-2017 __________________ 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 In Petitioner v. Dep't of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal sector applicants or employees under Title VII or the ADEA because the relevant federal sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. § 623). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 07-2014-0015