Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0720150006 Hearing No. 550-2012-00034X1 Agency No. FBI-2009-00069 DECISION Simultaneously with the issuance of the Agency's November 9, 2012 Final Order, the Agency filed an appeal from the Decision of the Equal Employment Opportunity Commission Administrative Judge (AJ), regarding Complainant's 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. Therein, the Agency rejected the AJ's finding of discrimination and also rejected the award of damages and attorney's fees awarded in the AJ's Order for relief. For the following reasons, the Commission REVERSES the Agency's Final Order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent (Criminal Investigator) at the Agency's Reno Resident Agency (RA) facility in Reno, Nevada. On January 30, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. Complainant was subjected to harassment from July 2008 until March 2009. Complainant also alleged she was subjected to reprisal when: 2. Complainant was given an "Unacceptable" Performance Appraisal Report in November 2008. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant requested a hearing.2 The AJ held a hearing regarding liability on June 28, 2010 through July 1, 2010. The AJ subsequently held a hearing regarding damages on November 29, 2011, and issued a Decision on October 2, 2012. In her Decision, the AJ found no dispute that Complainant's prior protected activity (filing an EEO complaint prior to the time of the events described in her complaint) was known to the Agency including all of the responsible management officials identified in Complainant's complaint. The AJ considered that from July 2006 through October 2007, Complainant's immediate supervisor was S1. Afterwards, S2 was Complainant's immediate supervisor through July 2008. Complainant filed her first EEO complaint in November 2007, but did not identify S1 as a responsible management official. The AJ found that Complainant did identify responsible management officials as including: A1 (Supervisory Special Agent to whom Complainant did not report); M1 (Complainant's second level supervisor); M2 (Complainant's third level supervisor (Special Agent in Charge)); and M3 (Chief Division Counsel). The AJ noted that in May 2008, at the urging of the Agency's EEO Officer, a special Inspection of the Reno RA took place after Complainant and two other female Agency employees from the Reno RA had filed EEO complaints alleging sex discrimination. The purpose of the inspection, the AJ found, was to investigate personnel conflicts, management deficiencies, and problematic dynamics. The AJ found that as a result of the inspection, Complainant's supervisor, S2, was reassigned and Complainant was then supervised by S3 for two months (the rest of July and August 2008). In August, Complainant was transferred to a different squad (squad 12), supervised by S4, who was physically located at the Agency's Las Vegas Field Office in Las Vegas, Nevada along with the rest of squad 12, while Complainant remained stationed at the Reno RA. The AJ found that on July 14, 2008, M1 and M2, plus another Agency official (M4), visited the Reno RA and announced the findings of the May 2008 inspection, noting that one Special Agent had been found to have performance deficiencies and candor issues. Complainant was later privately informed by S3 and M4 of a statement from the inspection team stating that Complainant was the special agent with the performance deficiencies and that she would be placed on a performance improvement plan (PIP), and that the inspection team had identified issues involving misconduct that would be turned over to the Agency's Office of Professional Responsibility (OPR). The AJ found that with respect to claim (1), Complainant stated she was forced to work in a hostile work environment because of her sex and prior EEO activity. The AJ found that among the incidents of harassment, Complainant claimed she was unable to change her career path because of negative comments from management that would have been attached to her request. Also, Complainant stated that she was threatened with being reported to the OPR for investigation and that her supervisor, S4, never conducted a file review with her regarding her cases, thus denying Complainant the opportunity to address any deficiencies identified in her work. Complainant also stated that she was denied training and undercover opportunities and at one point, her time and attendance records were questioned but the time and attendance records of a comparable male Special Agent were not questioned. The AJ found that the incidents cited by Complainant as harassment were neither severe nor pervasive and did not rise to the level of harassment. Even if they did, the AJ found that most of the incidents were centered on the actions of S4, who was tasked, the record shows, with helping Complainant to focus on her cyber cases and increasing her productivity. The AJ concluded that Complainant did not show she was subjected to harassment as alleged. With respect to claim (2) (unacceptable performance appraisal rating, or U-PAR), the AJ found that Complainant stated she was given an unacceptable performance rating in November 2008, after she filed her EEO complaint. The AJ considered the reasons provided by Agency management, including M1, M2, M4 (another Agency manager), and S4, who all claimed that they had no choice but to give Complainant a U-PAR for fiscal year 2008, based on the report of the Inspection team. The AJ found the Agency's reasons for assigning Complainant the identified U-PAR were problematic for several reasons. The Inspection Report contained both instructions and recommendations, which the AJ found were not consistently implemented by the Agency. The AJ found that the Inspection Report recommended/instructed the "SAC Las Vegas [M2] ensure the preparation of a Performance Improvement Plan for [Complainant]." The AJ noted that no PIP was prepared and Complainant was never given an opportunity to address critical elements of her performance that the Inspection found to be unacceptable. The AJ noted that no instruction or recommendation directed the Agency to give Complainant the identified U-PAR. However, the Inspection Report's conclusion noted that Complainant's conduct and performance would justify an unacceptable rating. The AJ found the Agency presented no evidence that the verbiage contained in the Report's conclusion constituted a mandatory directive that in turn deprived the Agency of its ability to implement appropriate responsive measures. The AJ found the evidence did not support the statements of the identified officials that they had no discretion to choose whether or not to give Complainant an unacceptable rating. The AJ found that because the Special Inspection occurred following closely behind the investigation into the EEO complaint filed by Complainant, the Agency's reasons for giving Complainant the U-PAR were a pretext to mask reprisal discrimination. Additionally, the AJ found that an earlier draft of the Inspection Report pertaining to Complainant's conduct and performance, resulting from the May 2008 Special Inspection, contained a section entitled, "Use of EEO Process to Deter Corrective Action". This section, the AJ found, does not appear in the final Inspection Report. The AJ found that the language contained in the deleted section indicated that the Inspector writing the Report believed that Complainant used the EEO complaints process to deter corrective action pertaining to her performance and conduct, that Complainant had filed a "spurious" EEO complaint and that Complainant's work ethics, untrustworthiness, and her EEO activity led to the morale problems at the Reno RA. The AJ found that the Inspector's use of inflammatory language regarding Complainant's use of the EEO process indicated evidence of a retaliatory motive. The AJ noted that the comments regarding Complainant's use of the EEO process were ultimately removed from the final version of the Inspection Report indicating the prohibited nature of the comments was discerned before the final version was released. The AJ concluded that the taint of reprisal, nevertheless, remained with respect to the Agency's reliance upon the Report that management was required to issue Complainant the U-PAR based upon the language contained in the "conclusions" of the final version of the Inspection Report. Additionally, the AJ found the evidence showed that Complainant's performance was acceptable before Complainant engaged in the EEO process, and that her performance was also acceptable after she transferred out of the Reno RA in 2009. Accordingly, the AJ found that the Agency did not prove that it would have given Complainant the identified U-PAR for 2008, absent reprisal discrimination. The AJ concluded that Complainant proved, that more likely than not, she was subjected to reprisal discrimination when she was given an unacceptable Performance Appraisal Rating in November 2008, as alleged. The AJ ordered the Agency to provide Complainant with the following relief. 1. Complainant's Unacceptable Performance Appraisal Report for 2008 shall be changed to a "Successful" level of performance. The Agency shall expunge any narrative that would reflect unsatisfactory performance. 2. The Agency shall pay Complainant compensatory damages in the amount of $35,000. 3. The Agency shall post a Notice that retaliation for engaging in protected EEO activity shall not recur. 4. The Agency shall provide at least eight hours of EEO training on the prohibition of retaliation to the employees and management officials still employed by the Agency who were involved in the decision to rate Complainant "Unacceptable." 5. The Agency shall pay Complainant's Attorney fees and costs in the amount of $142,167.07. On appeal, the Agency concurs with the AJ's finding that Complainant was not subjected to harassment. The Agency states the evidence does not support the AJ's finding of discrimination with respect to the unacceptable performance rating for 2008. The Agency states that based upon consultation with the Agency's human resources personnel, the Agency was prevented from issuing Complainant a PIP when the final Inspection Report issued because not enough time remained in the current rating period. The Agency maintains that the Report required the Agency to rate Complainant's performance as "unacceptable" in two critical elements and that is what the Agency did. The Agency also states that if the Commission affirms the AJ's finding of discrimination, that the award of nonpecuniary, compensatory damages should be reduced to $17,000 because the award should not be punitive. Also, the Agency argues that Complainant should not be compensated for the stress of the EEO process and a lesser award would be more consistent with prior Commission decisions. Additionally, the Agency states that the award of attorney's fees, should be reduced by 25% to reflect the degree of success Complainant achieved, noting that Complainant did not prevail on her harassment claim. On appeal, Complainant does not challenge the AJ's finding with respect to her harassment claim. Complainant states that the reason the section of the draft Inspection Report pertaining to "Use of the EEO process to deter corrective action" was excised from the final Report is because the author must have realized it was entirely unsupported by the evidence. Complainant states that nothing in the evidence shows that any corrective action was in progress regarding Complainant's conduct and performance and accordingly, Complainant had nothing to deter by her EEO activity. Complainant further challenges the AJ's award of compensatory damages, stating that an award of $50,000 is appropriate and consistent with other awards upheld by the Commission. Additionally, Complainant states that the award of attorney's fees should reflect the hourly rate of $500, which rate is fair and just under the circumstances and reflects the hourly rate for attorneys with over 20 years of experience in federal employment law. Complainant further requests an additional award of 23 hours of attorney's fees for work in connection with the instant appeal. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999). 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 or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she 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). As a preliminary matter, we find that neither party challenges the AJ's Decision with respect to her finding that Complainant did not show that she was subjected to discriminatory harassment as alleged in claim (1). We confine our decision to consideration of claim (2) (unsuccessful performance appraisal rating) and the AJ's award of relief. We find substantial evidence supports the AJ's Decision finding discrimination in claim (2). We find, as did the AJ, that the final version of the Inspection Report identified by Agency witnesses as the reason Complainant was given a U-PAR, does not contain on its face either a recommendation or an instruction that the Agency rate Complainant's performance for 2008 as unacceptable in the two critical elements, "Relating with others and Providing Professional Service," and "Maintaining High Professional Standards." We find substantial evidence supports the AJ's finding that the Agency retaliated against Complainant for her prior EEO activity when it rated her performance as "unacceptable" for 2008, as alleged. Compensatory damages When discrimination is found, the Agency must provide Complainant with a remedy that constitutes full, make-whole relief to restore her as nearly as possible to the position she would have occupied absent the discrimination. 29 C.F.R. § 1614.501(a)-(c); Reasor v. U.S. Postal Serv., EEOC Appeal No. 0720070004 (Jan. 6, 2009) (citing Franks v. Bowman Transportation Co., 424 U.S. 747 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994)). We acknowledge that the precise measurement cannot always be used to remedy the wrong inflicted, nonetheless, the burden of limiting the remedy rests with the Agency. Id. (citing Davis v. U.S. Postal Serv., EEOC Petition No. 04900010 (November 29, 1990)). After establishing entitlement to an award of compensatory damages, there is no precise formula for determining the amount of damages for non-pecuniary losses, except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treas. EEOC Appeal No. 01955789 (Aug. 29, 1997). It should likewise be consistent with amounts awarded in similar cases. See Hogeland v. Dep't of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999). Moreover, we point out that nonpecuniary compensatory damages are designed to remedy a harm and not to punish the Agency for its discriminatory actions. Furthermore, compensatory damages should not be motivated by passion or prejudice or be "monstrously excessive" standing alone but should be consistent with the amounts awarded in similar cases. See Ward-Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). The record contains testimony from both Complainant and her spouse regarding Complainant's pain and suffering as a result of the discriminatory actions. Specifically, the AJ noted that Complainant suffered sleeplessness, anxiety, and an increase in migraine headaches. Complainant also experienced a loss of enjoyment in her work and family life. The AJ noted that Complainant sought help from the Agency's EAP program as well as from a therapist and a psychiatrist, though Complainant avoided seeking medical help to avoid the stigma associated with such treatment. The AJ considered that Complainant and her husband took advantage of the Agency's program whereby employees could request to be transferred to a location they preferred once in their career. Complainant and her husband chose to move as soon as they could to remove themselves from the Reno RA and chose to relocate to Nebraska in 2009. The AJ considered Complainant's statements that she had no prior plans to leave the Reno area where her family was, and that her move to Nebraska then deprived her of the opportunity to be with her father, who remained in Reno, in the days before his death. The AJ found that a portion of Complainant's sufferings was attributable to the incidents of harassment where the AJ did not find discrimination. The AJ found that the clear evidence supported Complainant's claim that a portion of her sufferings resulted from receipt of the U-PAR including Complainant's reported emotional distress and the physical manifestations it caused. The AJ considered that Complainant provided both her own testimony and that of her husband as well as some medical documentation and found that an award of $35,000 was appropriate under the circumstances. The Agency argues that the AJ's award appears to be intended to punish the Agency, that it compensates Complainant for the stress of the EEO process, and that $17,000 is more consistent with previous Commission awards. Complainant requests that the Commission increase the AJ's award to $50,000, which sum Complainant argues is consistent with similar injuries in prior OFO decisions. Upon review of the evidence, and considering the nature and severity of the harm to Complainant, we concur with the AJ's award and find that Complainant is entitled to $35,000 in nonpecuniary damages. We find this case similar to that of Castillo v. Dep't of the Interior, EEOC Appeal No. 01990818 (July 16, 2002) where the Commission affirmed an AJ's award of $35,000 in nonpecuniary damages where Complainant testified to emotional distress, stress at work, anger and tension for a period of approximately three years. The award is also consistent with the award in Carlson v. Dep't of Justice, EEOC Appeal No. 01A51437 (April 27, 2005) ($30,000 in nonpecuniary damages where Complainant testified that he suffered depression, anger, alienation, humiliation, embarrassment, and loss of status) and Garrett v. U.S. Postal Serv., EEOC Appeal No. 07A30024 (February 25, 2004) ($35,000 in nonpecuniary damages where Complainant experienced emotional distress, depression, anger, embarrassment, humiliation, headaches, and sleep difficulties). Accordingly, based upon awards in similar cases and after considering the nature, severity and duration of Complainant's harm, we find that an award of $35,000 is proper and not monstrously excessive. Attorney's Fees The Commission's regulations authorize the award of reasonable attorney's fees and costs to a prevailing complainant. 29 C.F.R. § 1614.501(e); EEOC's Management Directive 110 (MD-110) (Nov. 9, 1999) Chapter 11. Fee awards are typically calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate, an amount also known as a lodestar. See 29 C.F.R. § 1614.501(e)(ii)(B); Hensley v. Eckerhart, 461 U.S. 424 (1983). All hours reasonably spent in processing the complaint are compensable, but the number of hours should not include excessive, redundant, or otherwise unnecessary hours. MD-110 at 11-15. A reasonable hourly rate is based on prevailing market rates in the relevant community for attorneys of similar experience in similar cases. MD-110 at 11-6. An application for attorney's fees must include a verified statement of attorney's fees accompanied by an affidavit executed by the attorney of record itemizing the attorney's charges for legal services. MD-110 at 11-9. While the attorney is not required to record in great detail the manner in which each minute of his time was expended, the attorney does have the burden of identifying the subject matters on which he spent his time by submitting sufficiently detailed and contemporaneous time records to ensure that the time spent was accurately recorded. See Spencer v. Dep't of the Treasury, EEOC Appeal No. 07A10035 (May 6, 2003). The attorney requesting the fee award has the burden of proving, by specific evidence, entitlement to the requested fees and costs. Koren v. U.S. Postal Serv., EEOC Request No. 05A20843 (Feb. 18, 2003). In her Decision, the AJ reduced Complainant's request for attorney's fees by 77 hours and 19 minutes to account for time spent on a complaint withdrawn from the hearing process, for global settlement purposes, for time spent deposing a witness from the withdrawn complaint, and for Complainant's response to a motion to compel for which Complainant was responsible. Accordingly, the AJ based Complainant's attorney's fees award using a total of 335 hours and 41 minutes. The AJ rejected the Agency's position that the award should be further reduced to reflect the degree of success because Complainant only prevailed on one of two claims. The AJ found, and we concur, that the incidents of harassment and Complainant's receipt of the U-PAR are not distinct and severable, but contain a common core set of facts required to be established by both claims. The reasonable hourly rate is generally determined by the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skill, experience and reputation. Blum v. Stenson, 465 U.S. 886 (1984). In her Decision, the AJ found that Complainant's attorney was entitled to a reasonable hourly rate of $400, which rate was also contracted between Complainant and her attorney. The AJ rejected Complainant's request that the hourly rate be $500, which rate reflects the increase that occurred in the attorney's practice in 2011, while most of the charges in this case accrued before that increase. The AJ acknowledged that in general, attorney's fees petitions are paid at the current, rather than the historical rate, but that in this case, a number of delays were beyond the Agency's control and so, the AJ found that $400 per hour was a reasonable hourly rate to apply in the instant case. The AJ also found that Complainant contracted with an attorney outside of the Reno area, but that a competent attorney was available in the Reno area at the $400 rate. See Complainant v. Social Security Administration, EEOC Appeal No. 07A30048 (Jan. 22, 2004) (rate is determined by local counsel if available) (citing Missouri v. Jenkins, 491 U.S. 274, 282-283 (1989)). For the above reasons, Complainant is to be awarded attorney fees for 335 hrs and 41 minutes, multiplied by $400 per hour, which amounts to $134,280.00. We also agree with the AJ's award of costs and our order herein will include the sum of $7,887.07 in costs. Complainant's request for attorney's fees for work on the instant appeal is premature. A verified statement of attorney's fees should be submitted to the Agency pursuant to the Attorney's Fees Order herein. CONCLUSION We REVERSE the Agency's Final Order finding no discrimination for claim (2) (unacceptable performance appraisal rating). The Agency shall comply with the Order herein. ORDER The Agency shall take the following actions: 1. Complainant's Unacceptable Performance Appraisal Report for 2008 shall be changed to a "Successful" level of performance. The Agency shall expunge any narrative that would reflect unsatisfactory performance. 2. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant nonpecuniary, compensatory damages in the amount of $35,000.00. 3. Within 180 days of the date this decision becomes final, the Agency shall provide at least eight hours of EEO training on the prohibition of retaliation to the management officials still employed by the Agency who were involved in the decision to rate Complainant "Unacceptable." 5. Within 60 days of the date this decision becomes final, the Agency shall pay Complainant's Attorney fees in the amount of $134,280.00 and costs in the amount of $7,887.07 for a total award of $142,167.07. 6. Within 180 days of the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials still employed by the Agency. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency, then the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include documentation indicating that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Las Vegas Field Office and Reno Resident Agency, Nevada, facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations June 15, 2015 __________________ Date _ 1 The record shows this case was previously docketed as hearing number 550-2010-00251X. 2 The instant complaint was previously consolidated with an earlier complaint, Agency case number FBI-2008-00064 (EEOC hearing number 550-2010-00250X). Complainant later withdrew her hearing request with respect to agency case number FBI-2008-00064 and requested that the Agency issue a Final Decision without a hearing. Agency case number is not at issue in this appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150006 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720150006