U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erwin B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0720150029 Hearing No. 570-2012-00626X Agency No. 4K-220-0094-11 DECISION Following its June 2, 2015, final order, the Agency filed a timely appeal which the Equal Employment Opportunity Commission (EEOC or Commission) accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of the relief ordered by an Equal Employment Opportunity Commission Administrative Judge's (AJ) for violating Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Arlington Post Office in Arlington, Virginia. On October 18, 2011, Complainant filed an equal employment opportunity (EEO) complaint alleging that he was discriminatorily harassed by the Agency based on his race (African-American), disability (diabetes), age (54 and 55), and reprisal for prior protected EEO activity. Following an investigation and a four day hearing, an EEOC AJ issued a decision finding that in retaliation for his prior EEO activity, Agency management subjected Complainant to severe harassment. The AJ, in relevant part, awarded Complainant $192,500 in nonpecuniary damages, $2,174.46 in past pecuniary damages for out of pocket medical expenses, and $122,847.43 in attorney fees and costs. The Agency issued a final order implementing the AJ's finding of discrimination and rejecting her ordered relief - specifically, it appeals the AJ's determinations on non-pecuniary damages and attorney fees. In opposition to the appeal, Complainant argues that the AJ's award of damages and attorney fees should be upheld. On May 24, 2011, the Agency issued Complainant a 14 day paper suspension for improper conduct and violation of the zero tolerance policy against threats of violence in the workplace, following his connected placement in emergency off-duty status. The AJ recounted that despite the Postal Inspection Service's determination that Complainant did not pose a threat - a witness and Complainant stated no threat to an employee or management was made - his first line supervisor still issued Complainant a suspension for threatening management. The AJ recounted an Arbitrator's finding that there was insufficient evidence that Complainant made the threat, as alleged. This incident was background information to Complainant's active harassment claim, starting on June 1, 2011. On June 1, 2011, Complainant was put emergency off-duty for aggressive and threatening behavior and given a connected notice of removal dated June 22, 2011. In the notice, the Agency charged Complainant with stalking the postmaster of his office - his third line supervisor, when on each of three consecutive days starting on May 24, 2011, he very slowly and deliberately drove by her at the loading dock while staring at her - "like a drive by shooting minus the gun." Further, it charged that on June 1, 2011, Complainant confronted the postmaster in a very threatening and hostile manner at a 7-Eleven store nearby the post office when he made eye contact with the postmaster as he approached the store with glass doors, immediately walked rapidly toward her up to within inches of her face, repeatedly loudly said "excuse me" in a space not wide enough for him to get by her, and then threw the liquid in his cup onto the postmaster wetting her pant leg. Thirdly, the Agency charged that later on the same day after finishing delivery of his route and being escorted off postal property on emergency off-duty status, Complainant continued to stalk the postmaster by staring at her from his vehicle parked nearby across the street and staying there for an extended time. The AJ found that Complainant did not do anything supporting the characterization of a "drive by" or connected stalking, and that he would not have known in advance of the postmaster's location at the loading dock. A video tape of the 7-Eleven store incident was secured, which the AJ viewed. The AJ found that the video wholly supported Complainant's account of what occurred - that he did not see the postmaster until he was in the store walking down one of the aisles, that he politely said "excuse me," that the postmaster yelled at him, and that although it was possible there was a small amount of residual water in his cup, he did not intentionally throw it on the postmaster or wet her pants leg (Complainant testified that he did not throw water, rather he unintentionally spilled two drops of water on her foot). The AJ found that the video showed the postmaster and Complainant's second line supervisor, who was in the store, were not truthful. The AJ found that after being put on emergency off-duty status, Complainant waited outside for a union representative, and after seeing him went home. On June 3, 2011, the postmaster pursued a Protective Order against Complainant and signed a sworn criminal complaint in the Arlington County Criminal Courts with her version of events of what occurred - at the 7-Eleven Complainant made a bee line to her, stood over her telling her to move, and threw a drink on her, and he was stalking her and she feared for her personal safety. The criminal Magistrate issued a warrant for Complainant's arrest, and a protective order for him to stay 100 yards away from the Arlington Post Office and the postmaster. Thereafter, on June 6, 2011, Complainant was booked - the taking of a mug shot and being finger printed; stripped search, placed in a holding cell with other prisoners for several hours, and after an initial appearance before a Municipal Magistrate, released on his own recognizance. On July 7, 2011, the criminal case against Complainant for stalking - engaging in conduct with intent to place a person in reasonable fear of death, criminal sexual assault, or bodily injury went to a full hearing, and Complainant's first and second line supervisors and postmaster testified. The Court dismissed the Protective Order, and ultimately found Complainant not guilty. Regarding the postmaster's testimony at the EEOC hearing that she wanted to do whatever was necessary to keep Complainant from returning to the Postal Service, the AJ found that this included being dishonest and jeopardizing not only Complainant's employment and livelihood, but also his freedom - which was unethical. Meanwhile, since June 1, 2011, Complainant was out of work without pay. The emergency off-duty status and notice of removal went to arbitration, and on November 23, 2011, the arbitrator issued an award rescinding these actions for not being issued for just cause and reinstating Complainant. The AJ recounted the arbitrator's findings that a number of factors significantly undermined the postmaster's credibility on the charges in the Notice of Removal, and the Agency failed to show Complainant engaged in an act of violence toward the postmaster or threw water on her. The AJ found that the above actions by management were retaliatory harassment. Prior to being out of work, Complainant took a Thrift Saving Plan (TSP) loan, which was automatically paid in installments though biweekly paychecks. When his pay stopped he needed the Agency to confirm his off-duty status with TSP to avoid a loan default. The AJ found that despite his repeated requests, Agency management refused to sign the TSP paperwork - which was retaliatory harassment - and he had to get the union to intervene to resolve the issue. Pursuant to the arbitrator's decision, on or about November 30, 2011, Complainant returned to work. The AJ found that shortly thereafter, on December 4, 2011, Complainant was followed by a Safety Officer who found safety violations for which he was issued a seven day paper suspension. Complainant was issued the suspension on December 14, 2011, charging he failed to signal before making a turn and did not wear a seatbelt. The AJ found that Complainant was singled out, and the Safety Inspector was used by the postmaster and Complainant's second line supervisor to retaliate against Complainant for EEO activity. Complainant's primary care physician placed Complainant off work from March 2, 2012 to March 19, 2012, from approximately April 3, 2012 to June 1, 2012, and from about May 29, 2012 to August 3, 2012. Hearing Exhibit (HE) 27. He returned to work in August 2012, and was working in October 2012. HE 26. At the hearing on January 8, 2014, Complainant testified he was employed by the Agency, but indicated he was not working for an unspecified period for medical reasons. Hearing Transcript (HT), 20, 179 - 180. At the hearing on March 6, 2014, Complainant's wife testified that in June 2014, Complainant will have 28 years with the Agency. HT, 1134. The AJ found that there was ample evidence that Complainant was distressed by the Agency's actions. Complainant testified that he was shocked and sunk to the ground when he was put in emergency off-duty status, that he wondered what he was going to tell his wife, that it broke his heart when he had to tell her, and he had relatives he did not inform because of the embarrassment. HT, 53, 304 - 305, 308. Complainant's wife testified that when Complainant informed her he was very upset, seemed confused as to what was happening, was almost shaking, and kept saying he did not understand why this was happening, told her over and over again what happened in the 7-Eleven, and stayed very upset and kept repeating this while home over the next several days. HT, 1135 - 1137. Complainant testified that he grew up in Southeast Washington, DC, in a neighborhood with a lot of crime and violence, but he never got into any trouble. HT, 19 - 20. Complainant's wife of 32 years testified that from childhood his mother would constantly warn him not to get into any legal trouble. HT, 1143. The AJ recounted this. Some days following the 7-Eleven incident, the county police left a voicemail at Complainant's home that they had a warrant for his arrest. Upon hearing the message, he slumped down in his chair just like the wind was taken out of him. HT, 1138. Complainant testified that after reporting to the police station he was handcuffed, read his rights, finger printed, and told to spread his legs and required to take his socks off where the police checked all his orifices - holes in his body, and he was put in a holding cell with "crooks." HT, 55 - 56. Complainant testified that he was 54 and never got in trouble with the law, and every time he talks about it he can't prevent himself from crying. HT, 56 - 57. The AJ found Complainant's testimony on all this was very credible and emotional, and found that as a result of this he became depressed, despondent, and experienced a great deal of anxiety. Complainant's wife testified that when he returned from the police station, he was so anguished it was hard to get much out of him, and he kept repeating over and over again what happened to him there. HT, 1139 - 1140. She testified that night he seemed like he was hyperventilating and she thought he was going to pass out so she took him to the emergency room. Id. Complainant, who is a diabetic, had glucose levels that were very high. Sometime prior to the July 7, 2011, criminal hearing the protective order was renewed. Complainant testified that the police knocked on his door, and the neighbors looked to find out what happened, which was humiliating - he had kept what happened to him from them. HT, 62 - 63. He stated he was defamed by the above as evidenced by his neighbors asking questions. Report of Investigation (ROI), Affidavit A, at 20. Complainant testified that while waiting for the July 7, 2011, criminal hearing, he walked around in a daze scared and worried he was going to get convicted and lose everything he worked for, including his home, and end up incarcerated. HT, 333 - 334. Complainant's wife testified that Complainant did not want to tell his daughter at first, and when he did she was devastated and Complainant cried saying he did not anything, nor did he want to tell his foster son because he wanted to be a good role model and was humiliated. When he told his mother she was distraught and hospitalized with chest pains. HT, 1145 - 1146. Complainant's wife testified that up to the criminal hearing Complainant had hysterical crying spells and kept repeating what happened in the police station, and she never saw him cry before. HT, 1141- 1142. The AJ recounted Complainant's and his wife's testimony that after being placed off work they began to almost immediately suffer financial hardship - just a few months before his wife retired and they were counting on Complainant's income, and they were unable to pay their bills. Complainant stated he was unable to find temporary employment before he returned to work because the arrest showed up in background checks. ROI, Affidavit A, at 23. He came close to defaulting on his TSP loan which upset him because management delayed updating TSP on his status. Complainant and his wife testified that Complainant had to pawn some of his instruments, sold things he did not want too, and borrowed $6,000 from family to cover expenses, which made him feel less than a man. HT, 79, 1152 - 1155. Complainant's wife testified that when Complainant returned to work he was initially relieved because he was glad to earn money and felt his name was cleared. HT, 1155. But Complainant stated there were rumors among people on his mail route that he assaulted the postmaster, which was demoralizing, and co-workers told him they heard he assaulted the postmaster. ROI, Affidavit A, at 21. Complainant's wife testified that the postmaster and his second line supervisor made him upset and nervous, and as time went by he started feeling paranoid, albeit he wanted to keep working out of a sense of pride. HT, 1155 - 1157. Complainant's wife testified that Complainant had a more crying spells, would talk about his arrest and how people would come up to him and say they heard he assaulted the postmaster. Id., at 1157. The AJ made reference to how Complainant felt. Complainant's wife testified that one day Complainant came home and had a meltdown, sobbing and saying they are after me and he can't do this, and he then started therapy with a Licensed Clinical Social Worker (LCSW). Id., at 1157 - 1158. He started seeing the LCSW on March 7, 2012, which was after he was issued the retaliatory seven day paper suspension on December 14, 2011. Complainant's wife testified that Complainant always took pride in being a hard working provider for his family - he would work six days a week, through the Anthrax and sniper shooting scare, and blizzards, and never complained about his job until all this happened. HT, 1146. She testified that prior to the harassment, he was always a jovial type person, and could have an entire room of people laughing because he was very witty. She testified he has become despondent and withdrawn, and his self-esteem and self-worth plummeted. HT, 1158. The AJ discussed this testimony in her decision. Complainant testified that he told his LCSW what management did to him including his arrest, and she advised this was so traumatic he was reliving it. He testified that he was having sleeplessness and nightmares, and this continued to the present day. HT, 119. The AJ discussed these symptoms. Complainant added that he did not want to be around friends, would act mean at home, and ended up on the sofa because of problems in his marriage, and the LCSW advised he had post traumatic stress. HT, 120, 123. The LCSW submitted an affidavit and letters. In the affidavit, which was written after the second hearing day, she wrote that Complainant described symptoms including flashbacks, intrusive thoughts, being easily startled, nightmares and experiencing tensions associated with his arrest, jail time, and removal, and she later diagnosed him with Post Traumatic Stress Disorder (PTSD). She wrote Complainant reported an exacerbation of elevated blood sugar and blood pressure as a result of stress stemming from these incidents, and he exhibited symptoms of depression. The LCSW stated that while Complainant initially improved upon returning to work, by January 2014, he was exhibiting symptoms of severe depression and still had PTSD symptoms. Complainant testified that the Agency's actions created anxiety and stress, which in turn increased his blood sugar and made it so he could not control his diabetes. HT, 120. The AJ referenced these symptoms. Complainant's primary care physician also submitted an affidavit after the second hearing day. Prior to the third hearing day, the Agency deposed the physician, and questioned him about his affidavit and other matters. HE 24. The Agency elicited testimony that Complainant had hypertension and was diagnosed with diabetes in 2007, that he had visits with blood pressure elevation in 2008 and poor control of diabetes in 2008 and 2009, elevated blood pressure and a dramatic worsening of glucose in 2010, hypertension and high glucose in 2011, and high glucose in 2012. The physician testified that Complainant took his glucose levels at home, and reported it was elevated when he had work stress. Complainant's primary care physician indicated that he put Complainant off work (in 2012) because the stressful work environment worsened his glucose control and diabetes management. In questioning, the physician testified that the stressful work environment was a factor in this, so he did not want him in the stressful work environment. HE 24, at 144 - 145. Other factors included not being fully compliant with his diabetes medication and/or diet and his pancreas decreasing its production of insulin. Id., at 84 - 85, 116 - 117. He also testified that Complainant discussed events at work. In his testimony the physician later opined it appeared Complainant was suffering from PTSD, and mentioned his insomnia and increased anxiety in December 2011, for which he prescribed Xanax. Id. At 103 - 104, 130, 132, 146 - 147. Complainant testified that told his doctor, who appeared to be his endocrinologist, about what was happening at work and his stress and he doctor opined this was going to kill him - that if he kept going to work his blood sugar would keep rising, he could go into a diabetic coma, and die. HT, 177 - 178. Complainant testified that his primary care physician gave similar advice. HT, 123. The AJ found that after returning to work Complainant experienced constant anxiety about possible discipline, and became miserable. The AJ found that the physical and emotional impact of the retaliatory hostile work environment significantly impacted Complainant's health, and for this reason his physician ultimately opined Complainant could not return to work. The AJ found that based on the evidence and testimony presented, it was clear that but for the actions of management, Complainant would likely still be gainfully employed with the Agency. In awarding attorney fees, the AJ found that while there were unsuccessful claims (bases of discrimination other than reprisal and a letter of warning dated January 18, 2012, for failing to scan a mailing), the successful and unsuccessful claims were inextricably intertwined and not sufficiently distinct and hence time expended thereon could not be subdivided and would not be reduced. The AJ's acceptance of the affidavits by the LCSW and primary care physician created after the second day of the hearing was hotly contested by the Agency. The Agency argued that Complainant represented that he was going call these damages witnesses for the hearing, but instead submitted affidavits, which can't be cross-examined. The record reflects that on October 25, 2013, Complainant's attorney emailed the Agency's attorney that while she was planning to have the LCSW and primary care physician testify at the hearing, in order to accommodate them she was considering taking their depositions and potentially using their testimony from the deposition transcripts at the hearing. The Agency attorney replied that the time limit for discovery had expired, and this was not appropriate unless it was extended. By February 5, 2014, after the second day of the hearing, Complainant raised with the AJ that the cost of securing the primary care physician's testimony was cost probative - $500 an hour for appearance at the hearing plus travel time. The AJ advised the parties of the option of presenting an opposing expert view, and that she has allowed damages witnesses - especially experts and doctors and the like to testify by phone because it is sometimes not logistically feasible for them to appear, and that was an option. HT, 590, 594. In reaction to the Agency's argument that it was being deprived of the opportunity to cross-examine the primary care physician, the AJ commented that it could have deposed the physician during discovery and it was on notice of this witness (before ruling that deposition already taken was admissible). HT, 1111 - 1112. 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. (Aug. 5, 2015). On appeal, the Agency "principally contends" that the AJ committed gross, reversible error by her refusal to require, over its objections, that Complainant's LCSW and primary care physician testify at the hearing, and her admission of their affidavits with no opportunity for cross-examination at the hearing. The Agency has not shown that the AJ abused her discretion in the above rulings. First, the Agency conceded that if it could depose the physician about his affidavit this would be cross-examination. HT, 1109. This occurred. Second, the Agency has not shown that it did not have an opportunity to depose the LCSW prior to the hearing - which would have been before her affidavit but would have permitted development of the record through cross-examination. Moreover, there was substantial evidence in the record - the testimony of Complainant's wife, Complainant, and the deposition of the primary care physician to support the damages award (even without the LCSW's affidavit and her letter submitted near the same time). The Agency argues that in determining damages the AJ found Complainant's physician opined Complainant could not return to work, and but for managements' actions he would most likely still be gainfully employed by the Agency. The Agency argues that separation from work was not an issue in his complaint, he was still employed more than a year after the last found discriminatory incident, and accordingly, the AJ awarded damages for matters unrelated to the discrimination. The Agency argues that the deposition of the primary care physician showed that Complainant's diabetes and high blood pressure were uncontrolled since 2007, and actually improved during the five months he was out of work following the Agency's action to remove him in June 2011. Further, it argues that the LCSW did not start seeing Complainant until March 2012, nearly a year after the last found incident of discrimination. We note that in opposition to the appeal, by and through his attorney, Complainant indicates he and his wife testified that he resigned, but this is not the case. Compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and nonpecuniary losses that are directly or proximately caused by the agency's discriminatory conduct. Compensatory and Punitive Damages Available under Section 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at www.eeoc.gov). The AJ's award of $192,500 in nonpecuniary damages is supported by substantial evidence, for reasons found by the AJ. We concede that Complainant had uncontrolled diabetes for years prior to the discrimination and that his primary care physician testified that the hostile work environment was a factor in the increase in the rise of his glucose levels and uncontrolled diabetes - not the only reason. We also concede that Complainant's primary care physician testified of improvement in Complainant's blood pressure in September 2011 and glucose and blood pressure in October 2011 (while he was out following his emergency off-duty status and removal in June 2011). But Complainant explained that after the favorable result of the July 7, 2011, criminal hearing, he was so happy he was motivated to do all he should to take care of his body. HT, 334. Complainant's physician testified that Complainant reported in October 2011 that he was eating better. Further, we concede that at the time of the hearing in March 2014, Complainant was still on the rolls of the Agency. Complainant's opposition argument suggests that he has separated from the Agency, but the record does not show when he separated or the reason therefore. Nevertheless, substantial evidence supports that Complainant's primary care physician put Complainant off work for lengthy periods in 2012 because of a worsening in his diabetes control, and the hostile work environment was a significant factor in this. The AJ's large award of nonpecuniary damages is supported by what happened to Complainant after the retaliatory actions - the shock, embarrassment, and great upset in being placed in off-duty status, destroying his unblemished record of not getting in trouble with criminal law and what this did to his identity, the humiliation, despondency, extreme anxiety and ruminations resulting from the criminal action and being booked, having an invasive strip search, and being put in a holding cell; the damage to his reputation among neighbors, co-workers and customers on his route because of the criminal action, the worry, hysterical crying spells, and fear of being convicted and having his life destroyed as he knew it, the financial struggles from being put in off-duty status for an extended period, his loss of a sense of having a new start when shortly after returning to work he received a retaliatory seven day suspension, the loss of self-worth and self-esteem and going from jovial to withdrawn, the sleeplessness, nightmares, depression, damage to his marriage and PTSD stemming from the Agency's actions, the lessening in control of his glucose levels partly as a result of the discrimination, not being able to work for extended periods, and the emotional damage which continues to this day. See Looney v. Department of Homeland Security, EEOC Appeal Nos. 07A40124 & 01A53252 (May 19, 2005), (the Office of Federal Operations affirmed an AJ's award of $195,000 in nonpecuniary damages to a complainant for suffering she endured when she was suspended and detailed away from her home in reprisal for her EEO complaint. The Commission held that evidence indicated that the complainant experienced "boats of crying"; humiliation, depression, destruction of her spirit and confidence, loss of purpose, anxiety, sleep interruption, and difficulty coping with life). The Agency also argues that Complainant should not be awarded attorney fees for any actions which occurred after the last found discriminatory event in December 2011. The AJ's award of attorney fees is upheld for the reasons found by the AJ. Accordingly, the Agency's final action is MODIFIED. The AJ's award of compensatory damages and attorney fees and costs is AFFIRMED. ORDER The Agency is ordered to take the following remedial actions: 1. Within 45 calendar days after this decision becomes final, the Agency shall send payment to the law firm which represented Complainant in this case in the following amounts: a. $2,178.46 in pecuniary damages for out of pocket medical expenses for Complainant. b. $192,500 in nonpecuniary damages for Complainant. c. $122,847.43 in in attorney fees and costs for the law firm which represented Complainant. 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 of the corrective actions have been implemented. ATTORNEY'S FEES (H0610)2 If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610) 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. 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 March 15, 2016 __________________ 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 This applies to all attorney fees and costs incurred after Complainant's Petition for Award of Attorneys' Fees and Costs were submitted on March 17, 2014. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150029 12 0720150029