Michael Opare-Addo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01200608021
Hearing No. 210-2005-00075X
Agency Nos. 1J-607-0012-04; 4J-606-0247-04
DECISION
On November 2, 2005, complainant filed an appeal from the agency's October
4, 2005 final order concerning his 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. § 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Manager, Distribution Operations (MDO) at the Processing and
Distribution Center (P&DC), in Chicago, Illinois.
On October 1, 2003, complainant was reassigned by the Senior Manager,
Distribution Operations (LW), from managing the Automation unit, to
managing the Small Parcel Bundle Sorter (SPBS) unit. Complainant's
position as MDO of Automation was an EAS-20 pay level. Complainant was
reassigned at the same pay level. An EAS-24, MDO, who had previously
served in the position to which complainant was transferred, was assigned
to complainant's position in the Automation unit.
On December 23, 2003, the agency posted Vacancy Announcement # 08705 for
the position of Manager Distribution Operations, EAS-24, at the Irving
Park Road Processing and Distribution Center. Complainant applied for
the position and was one of four applicants who were recommended by
a Review Committee to the selecting official (SO). In June 2005, SO
did not select any of the four candidates referred to him, but instead
selected LW, an EAS-25 Supervisor MDO. LW later declined the position.
Accordingly, no selection was made. Instead, the announcement was
cancelled and the same position was subsequently re-advertised by a
different vacancy announcement. During the second selection process, five
applicants were referred to the SO. After he reviewed and interviewed
the five applicants referred to him, the SO decided not to fill the
subject position. The position was subsequently posted for a third time.
During the third posting period, the position was finally filled with a
non-competitive lateral candidate, and not through any of the postings.
On December 12, 2003 and November 22, 2004, complainant filed EEO
complaints alleging that he was discriminated against on the bases of
national origin (Ghana) and in reprisal for prior protected EEO activity
when:
1. on October 1, 2003, he was transferred or reassigned to the Small
Parcel Bundle Sorter (SPBS) Dock Operations at the Cardiss Collins P&DC.
Although an EAS-24 pay level employee previously served in the position
to which he was transferred, the agency denied his request for higher
level pay and continued to pay him as a regular EAS-20;
2. following his reassignment, the agency assigned an EAS-24 pay level
employee to the Automation MDO position vacated by complainant; and
3. on or about August 13, 2004, he received a letter from Human Resources,
stating that vacancy Announcement #08705, which he applied for, was being
reposted in order to attract a larger pool of qualified applicants.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On August 24-25, 2005, the AJ conducted a hearing,
and issued a bench decision on September 13, 2005. The AJ found that the
agency articulated legitimate, nondiscriminatory reasons for its actions,
and complainant did not present evidence that the agency's reasons were
pretext for discriminatory animus.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
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, § VI.B. (November 9, 1999).
In general, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For complainant to prevail, s/he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has
established a prima facie case, the burden then shifts to the agency
to articulate a legitimate, nondiscriminatory reason for its actions.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). If the agency is successful, the burden reverts to the
complainant to demonstrate by a preponderance of the evidence that the
agency's reason(s) for its action was a pretext for discrimination.
At all times, complainant retains the burden of persuasion, and it is
his/her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Following the three-part scheme of McDonnell Douglas Corporation v. Green,
supra, for analysis of claims alleging disparate treatment based on
reprisal, 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. Social Security
Admin., EEOC Request No. 05960403 (December 6, 1996). Specifically,
in a reprisal claim, and in accordance with the burdens set forth in
McDonnell Douglas, supra, to establish a prima facie case of reprisal,
s/he must show: (1) s/he engaged in a prior protected activity; (2)
the official acting on behalf of the agency was aware of the protected
activity; (3) s/he was subjected to adverse treatment by the agency; and
(4) a nexus, or causal connection, exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A000340 (September 25, 2000).
As an initial matter, we note that a fair reading of the formal complaint,
the complaint file and the appeal indicates that complainant alleged
that he was subjected to discrimination on the bases of national origin
(Ghana) and in reprisal for prior protected activity when: (1) he was
involuntarily reassigned to the SPBS unit; (2) he was denied higher level
pay for higher level work; and (3) in August 2004, he was not selected
for the Manager, Distribution Operations EAS-24 position. Accordingly,
we will address each claim separately.
Complainant's reassignment
Pursuant to review of the record, we find that complainant establish
a prima facie case of reprisal and national origin discrimination.
Complainant is a member of a protected group by virtue of his national
origin (Ghana) and he was subject to an adverse action when he was
involuntarily reassigned to the SPBS unit. The record also shows that
complainant engaged in prior EEO activity, which was in April 2002,
and that the instant complaint concerned the actions of LW, who was
cited as the responsible official in complainant's prior EEO activity.
Next, the agency is required to articulate a legitimate, nondiscriminatory
reason for its action. The agency's explanation must be sufficiently
clear to raise a "genuine issue of fact" as to whether discrimination
occurred. Burdine, 450 U.S. at 254. Moreover, it must "frame the
factual issue with sufficient clarity so that [complainant] will have
a full and fair opportunity to demonstrate pretext." Id. at 255-256;
Parker v. United States Postal Service, EEOC Request No. 05900110 (April
30, 1990) (citing Burdine, 450 U.S. at 256); see also St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993), citing U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 716 (1983) and Burdine, 450 U.S. at
256. While the agency's burden of production is not onerous, it must
nevertheless provide a specific, clear, and individualized explanation
for the treatment accorded the affected employee. Lorenzo v. Department
of Defense, EEOC Request No. 05950931 (November 6, 1997).
Here, we find that the agency failed to meet its burden of production
under McDonnell Douglas. The agency provided no legitimate,
nondiscriminatory reason for reassigning complainant to the SPBS unit.
During the investigation LW merely stated that he does not remember
assigning complainant a new responsibility and does not remember
complainant's former responsibilities.2 During the hearing, Manager,
Distribution Operation (MJ) testified that he was instructed by LW to
reassign complainant, but LW gave him no reasons for the reassignment.
In addition, while complainant's file does not contain any documentation
or notes regarding the reassignment, the agency does not deny that
complainant was reassigned as he claims. Moreover, the record shows
that complainant was verbally informed of the reassignment during a
staff meeting, and was never provided with documents or a Form 1723
(Assignment Order). The record also shows that management never discussed
the reasons with complainant for the reassignment.
After a careful review of the record, the Commission concludes that
the AJ's findings of fact are not supported by substantial evidence.
We find legal deficiencies in the AJ's decision. The AJ erroneously
concluded that the agency articulated legitimate, non-discriminatory
reasons for its actions.3 We find that the record is utterly devoid of
testimony that would explain the reason for the reassignment. There are
simply no details about why complainant was reassigned. Moreover, the AJ
erred when he suggested a legitimate reason for complainant's reassignment
when the agency failed to articulate one. Specifically, we note that the
AJ determined "the reason for complainant's reassignment could just as
easily have been a reflection of management's confidence in complainant's
managerial abilities." We find that the AJ's determination is based on
assumptions and incorrect law. There was no evidence in the record to
support the AJ's determination. Complainant's managerial abilities or
performance were never discussed as part of the instant complaint.
The Commission finds that the agency failed to set forth, with sufficient
clarity, a legitimate reason why it reassigned complainant to another
unit. As such, he has been deprived of a full and fair opportunity to
demonstrate that the reason is a pretext for national origin or reprisal
discrimination. The agency has therefore failed to meet its burden
of production sufficient to overcome complainant's prima facie case
of national origin and reprisal discrimination. See Prevo v. Federal
Deposit Insurance Corporation, EEOC Appeal No. 01972832 (March 10, 2000).
The consequence of that failure is that complainant, having established
a prima facie case, prevails without having to make any demonstration
of pretext.
We further find that the AJ also erred in concluding that complainant's
conditions of employment were not altered by his reassignment.
The record reveals that complainant was reassigned to a different unit,
with higher level duties and responsibilities. Moreover, we note that
for complainant, working at the SPBS was considered a demotion because
working in Automation provided him better employment opportunities inside
the Postal Service. Accordingly, we conclude that the reassignment
altered complainant's conditions of employment.
Therefore, we conclude that the agency discriminated against complainant
based on his national origin and in reprisal for prior EEO activity when
he was involuntarily reassigned as MDO to the SPBS unit. Accordingly,
as to claim (1) we reverse the agency's final decision finding no
discrimination.
Complainant's pay level
Complainant alleged that he was discriminated against when the agency
denied him his request for EAS-24 pay level, although an EAS-24 pay level
employee previously served in the position to which he was transferred.
Complainant also alleged that following his reassignment, the agency
assigned an EAS-24 pay level employee to the Automation MDO position
vacated by him.
After careful review of the record, we conclude that the AJ's findings of
fact are not supported by substantial evidence. As an initial matter, we
concur with the AJ's determination that the agency articulated legitimate,
non-discriminatory reasons for denying complainant a higher level pay.
However, we find that the AJ erroneously concluded that complainant failed
to establish pretext following the agency's legitimate, nondiscriminatory
reasons for its actions.
We note that the agency articulated several legitimate, non-discriminatory
reasons for denying complainant a higher level pay. In the McDonnell
Douglas scheme, once the agency articulates legitimate, nondiscriminatory
reasons for its actions, the ultimate burden of persuasion in on the
complainant to demonstrate by preponderant evidence that the reason given
by the agency for its actions are a pretext, or a sham or disguise, for
discrimination. Pretext can be demonstrated by "showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the [Agency's] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence."
Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250
(Jan. 30, 2006) (citing Morgan v. Hilti, Inc., 108 F3d 1319, 1323
(10th Cir. 1997)). We find that complainant presented such evidence.
In reaching this conclusion, we note that agency's several explanations
were confusing, contradictory, and lacking in credibility. Moreover,
we find that the agency's reasons for its actions were successfully
rebutted by complainant.
In the instant case, the AJ found that the principal criteria for
promoting an MDO to a higher pay level was the number of junior
managers or supervisors he or she, in turn, supervised. Specifically,
the agency alleged that pay levels are determined as follows: EAS-18:
1-3 subordinate supervisors; EAS-20: 4-6 subordinate supervisors;
EAS-22: 10-12 subordinate supervisors; and EAS-24: 13 or more subordinate
supervisors. The AJ also found that complainant's unit in particular was
understaffed with supervisors. The AJ further determined that complainant
supervised between six and nine supervisors, but "if you count 204-Bs,
at times complainant directed as many as 14 or 15 supervisors." The AJ
concluded that "it does not appear, however, that the agency counts
204-Bs when determining an MDO's pay level." However, we find no
substantial evidence in the record to support the AJ's determinations.
First, we find that the record reflects that the SPBS unit had more
than 9 supervisors assigned. Complainant presented evidence that he
had as many as 15 supervisors, including acting supervisors (204-B).
DW testified that the SPBS unit had 13 authorized supervisors.4 DW
explained that is not how many supervisors are working at the same time,
but rather is based on the total amount of supervisors that are under
the MDO's responsibility.
We further find that the AJ's determination that "it does not appear,
however, that the agency counts 204-Bs when determining an MDO's pay
level," was based on assumptions rather than evidence. There is no
evidence in the record concerning whether the 204-Bs supervisors are
excluded in determining MDOs pay levels. We find no evidence or testimony
that can support that determination.
In addition, we find that during the hearing, management provided
contradictory testimony regarding this matter. Specifically, testimony
during the hearing reflects that some MDOs are level 24 regardless of the
number of subordinates they supervised. Moreover, the evidence in the
record shows several EAS-24 that supervised fewer than 13 subordinate
supervisors, who are paid at the EAS-245 grade level. We also find
weakness and inconsistencies when DW testified that MDO's grade level
"originally was based on the number of employees or equipment."6 We find
that the "equipment" criteria were not mentioned during the investigation
or by other management officials during the hearing. Also, it is not
clear from his testimony which factors are currently used to determine
an MDO's pay grade level.
The Commission also finds that the AJ failed to note evidence and
testimony that shows that complainant was treated differently than
others outside of his protected group. Specifically, substantial
evidence in the record reflects that since the early 1990s MDOs at
the SPBS area were at the EAS- 24 pay level. During the hearing, a
manager of Distribution Operations (LAM) testified that the MDO grade
level assigned to the SPBS area in or about October 2003, was Level 24.
LAM explained those were the levels that were assigned when the agency
moved into the new building back in early 1990s because of the number of
employees.7 DW also testified that based on the number of supervisors
(13), the MDO level at the SPBS unit is 24.8 The record further reveals
that complainant presented an e-mail from LW, in which LW identified the
SPBS unit as EAS-24 level. Accordingly, we conclude that complainant was
subject to discrimination when he was not provided the same pay level,
EAS-24, as others outside of his protected group when performing the
same duties and responsibilities as MDO for the SPBS area.
Therefore, the Commission finds that complainant established, by a
preponderance of the evidence, that he was discriminated and retaliated
against when he was denied higher level pay for higher level work.
Accordingly, we REVERSE the agency's final decision finding no
discrimination.
Complainant's non-selection
Complainant alleged that he was discriminated against when he was not
selected for the Manager, Distribution Operations, EAS-24 position.
After review of the record in its entirety, the Commission agrees with the
AJ that, assuming arguendo, complainant established a prima facie case
of discrimination, the agency articulated legitimate, nondiscriminatory
reasons for complainant's non-selection. The record reveals that SO
canceled the first vacancy announcement and decided to readvertise the
position in hopes of getting a larger pool of qualified applicants.
For this reason no selection was made. Although the agency advertised
the position for a second time, the SO decided not to fill the subject
position. Management decided to use the position as a training venue
for employees temporarily assigned. Later, the position was advertised
for a third time, but SO decided to fill the position non-competitively
with a lateral transfer. Further, we concur with the AJ's finding that
complainant failed to proffer evidence that the agency's articulated
reasons for its actions were more likely than not a pretext for
discrimination. As such, we affirm the agency's final decision finding
no discrimination regarding complainant's non-selection for the Manager,
Distribution Operations position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we REVERSE, in part,
and AFFIRM, in part, the agency's final decision. We REMAND this case
to the agency to take remedial actions in accordance with this decision
and the ORDER set forth below.
ORDER
The agency is ordered to take the following remedial action:
1. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall retroactively reinstate complainant to his former
position of Manager, Distribution Operations (MDO) at the Automation area,
or another substantially equivalent and mutually agreeable position.
2. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall determine the appropriate amount of back pay at
the EAS-24 level with interest and other benefits due complainant from
the period of time he performed the duties as an MDO at the SPBS area,
pursuant to 29 C.F.R. § 1614.501. If complainant is currently performing
the duties of MDO at the SPBS area, then back pay should be calculated
since his first day at the SPBS area until the present. Complainant shall
cooperate in the agency's efforts to compute the amount of back pay and
benefits due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay and/or benefits, the agency shall issue a check to complainant for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall forward the case to the Hearings Unit of the
appropriate District Office for assignment of an Administrative Judge
to render a determination on the issue of compensatory damages and
attorney's fees, if any. Thereafter, the Administrative Judge shall
issue a decision on this issue in accordance with 29 C.F.R. § 1614.109,
and the agency shall issue a final action in accordance with 29 C.F.R. §
1614.110 within forty (40) days of receipt of the Administrative Judge's
decision. The agency shall submit copies of the Administrative Judge's
decision and the final agency action to the Compliance Officer at the
address set forth below.
4. The agency is directed to provide a minimum of (8) eight hours of
EEO training to all of the responsible management officials at the
Cardiss Collins P&DC. The Commission does not consider training to be
a disciplinary action.
5. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. 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.
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
agency's calculation of back pay and other benefits due to complainant (if
any), including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Cardiss Collins P&DC facility, in
Chicago, Illinois, copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (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 ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
November 20, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Over complainant's objections, LW was excused from testifying at
the hearing.
3 AJ's Bench Decision, page 527-528.
4 Hearing Transcript, page 167.
5 Report of Investigation, "Staffing data, Forms 50 and employee
information," page 9.
6 Hearing Transcript, page 188.
7 Hearing Transcript, page 151.
8 Hearing Transcript, page 192.
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0120060802
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
11
0120060802