Mae R. Horsey,
Complainant,

v.

Hilda L. Solis,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120090356

Hearing No. 570-2008-00153X

Agency No. CRC-07-11-069

DECISION

On October 22, 2008, Complainant timely filed an appeal from the
Agency’s October 8, 2008, final order concerning her 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., 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. The Commission accepts the appeal pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge
(AJ) properly issued a decision without a hearing; (2) whether the AJ
properly dismissed a portion of Complainant’s complaint for failure to
timely seek EEO counseling and for failure to state a claim; (3) whether
Complainant established that she was denied reasonable accommodation for
her disability; and (4) whether Complainant established that the Agency's
proffered explanation for its actions was pretext to mask discrimination
on the bases of race, sex, age, disability, and reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant
worked as a Human Resources (HR) Specialist, GS-14, at the Agency’s
Office of Executive Resources and Personnel (OERPS) in Washington,
D.C. Report of Investigation (ROI), Ex. B1, at 1. As an HR Specialist,
Complainant performed duties for senior level executives and political
appointees. In that capacity, Complainant performed recruitment, hiring,
position classifications, payroll actions, and policy development relating
to Senior Executive Service (SES) employees. Complainant began working
in her above position on April 3, 2005. ROI, Ex. F1, at 3.

Complainant worked with two other HR Specialists, HRS1 (Male Caucasian)
and HRS2 (Female African-American). On April 16, 2006, OERPS hired a
new Supervisor (S1) who became responsible for Complainant, HRS1, HRS2,
as well as other employees. ROI, Ex. F2, at 3. Complainant, HRS1, and
HRS2, were assigned and responsible for a certain number of customers
with different federal agencies. Id. at 28. Complainant’s duties as
an HR Specialist also included leading and serving as the senior team
member of the OERPS Executive Resources Team. ROI, Ex. B2, at 8. In this
capacity, Complainant was reportedly responsible for ensuring that team
members provided accurate and timely HR operational advice.

S1 began implementing new policies shortly after her
arrival. Specifically, starting in October 2006, S1 required that at
least one employee, on a rotating basis, remain in the office until 5:00
p.m. ROI, Ex. F2, at 9-10. S1 also instructed employees that although
the office needed coverage until 5:00 p.m., employees could not could
accumulate overtime and work more than 80 hours per pay period. Id. at
10. As such, S1 requested that each employee adjust their schedule in
order to provide coverage until 5:00 p.m. on a rotating basis and not
accumulate overtime. Id. Subsequently, Complainant instructed S1 that she
could not provide coverage until 5:00 p.m. because she paid to commute
home in a vanpool, which left at 4:15 p.m.  ROI, Ex. B2, at 70. However,
S1 denied Complaint’s request to be relieved of the 5:00 p.m. coverage
rotation obligation.

On November 7, 2006, S1 provided Complainant with her performance
appraisal for Fiscal Year 2006, which contained an “Effective”
rating. Id. at 7. Complainant felt she deserved the higher “Highly
Effective” or “Exemplary” ratings for her performance. Id. at
22. Complainant received a “meets” rating in performance elements
1-3 and an “exceeds” rating for element 4, which is not at issue
here. Id. at 7-8. Performance elements 1-3 pertained to effectively
managing the Executive Resources Team, Advisory Services (Technical
Competence), and Customer Service (external). Id.

On January 4, 2007, S1 revised the customer assignment list for
Complainant, HRS1, and HRS2. ROI, Ex. F1A, at 58. Complainant was
initially responsible 112 employees, while HRS1 was only responsible
for 62 employees. Id. at 54. However, S1 reportedly revised the list
making Complainant responsible for 97 customers and HRS1 responsible
for 96 customers. ROI, Ex. F2A, at 28.

On January 19, 2007, S1 instructed employees that they could no longer
accumulate credit hours without her prior approval. ROI, Ex. F1,
13-14. Credit hours allowed employees to accumulate extra leave by
working more than eight hours a day. S1 also instructed staff that an
employee’s failure to notify her of an intent work beyond eight hours
a day and earn credit hours could result in disciplinary action. Id. at
8-16. Complainant’s pay period one timesheet, ending on January 20,
2007, reflected that she had earned 3.25 credit hours. ROI, Ex. F1B,
at 14. On January 22, 2007, S1 did not certify all the credit hours
that Complainant had earned and removed the hours from Complaint’s
timesheet. However, after S1 spoke with management about the matter, the
Agency re-certified the credit hours on Complainant’s timesheet. ROI,
Ex. B2, at 59. Thereafter, S1 cautioned Complainant that she would be
disciplined if she accumulated any credit hours without her approval
again.

On January 23, 2007, Complainant requested a reasonable accommodation
for a fractured leg bone that she sustained while on leave. Id. at
62-63. Specifically, Complainant requested that she be relieved from the
5:00 p.m. coverage obligation. Id. Complainant needed to catch the 4:15
p.m. vanpool because she could not walk to the subway. Id. As a result,
beginning on January 24, 2007, Complainant was excused from the 5:00
p.m. coverage obligation. ROI, Ex. F2, at 11. On February 20, 2007, the
Agency requested a doctor’s assistance to determine if Complainant
needed the requested accommodation. ROI, Ex. F2A, at 48. On March 8,
2007, the doctor presented the Agency with a report, which noted that
he had spoken with Complainant’s doctor who stated that Complainant
no longer needed the accommodation. Id. at 56. As a result, S1 no longer
relieved Complainant of her rotated 5:00 p.m. office coverage obligation.

On March 2, 2007, S1 denied Complainant’s leave request, but
approved HRS2’s request. ROI, F2, at 11. Earlier, on January 30,
2007, Complainant and HRS2 presented S1 with leave requests for April
9-13, 2007, listing their children’s Spring break as the reason for
their absence. Id. S1 informed Complainant that she denied the leave
request because she could not approve both Complainant’s and HRS2’s
request for the same period because of office coverage problems. Id. S1
also informed Complainant that she decided to approve HRS2’s leave
request because HRS2 had taken less leave and had submitted her request
first. Id. Thereafter, Complainant instead requested sick leave under
the Family Medical Leave Act (FMLA) for the same time period because her
mother had reportedly been in a car accident and needed care. Id. However,
S1 denied the sick leave request. Id.

Subsequently, Complainant’s timesheet for the pay period ending on
March 3, 2007, reportedly recorded that she had worked more than 80 hours
and earned two hours of credit time. ROI, Ex. B2, at 79. Thereafter,
on March 12, 2007, S1 issued Complainant an Official Letter of Reprimand
(LOR). Id. The LOR noted that Complainant worked overtime earning credit
hours without approval. Id.

On January 18, 2007, Complainant contacted an EEO Counselor, and
thereafter filed an EEO complaint on February 9, 2008, alleging that the
Agency discriminated against her on the bases of race (African-American),
sex, age, disability, and reprisal for prior protected EEO activity when:

1. her request for reasonable accommodation was denied;

2. on November 7, 2006, S1 gave her a performance appraisal for
Fiscal Year 2006, which contained an “Effective” rating;

3. S1 assigned her twice the amount of work as HRS1;

4. S1 required her to work an additional two hours every pay period
without compensation and without being reimbursed for out-of-pocket
expenses;

5. S1 changed her timesheet to take away credit hours and threatened to
reprimand her if she worked more than 80 hours;

6. S1 denied her leave request under the Family and Medical Leave Act
(FMLA); and

7. on March 12, 2007, S1 issued Complainant an Official Letter of
Reprimand (LOR).

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 EEOC Administrative Judge (AJ).  Complainant
timely requested a hearing.  Thereafter, the AJ assigned to the case
granted the Agency’s April 24, 2008, motion for a decision without a
hearing and issued a decision without a hearing in favor of the Agency
on September 5, 2008. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged.

Initially, the AJ noted that Complainant failed to establish a prima facie
case of discrimination based on reprisal and disability. With respect
to reprisal, the AJ noted that Complainant informed S1 on March 12,
2007, about her EEO complaint, which was subsequent to Complainant’s
alleged adverse actions. Also, the AJ noted that Complainant was not a
qualified individual with a disability because her leg condition was only
temporary. As for claim 2, the AJ noted that Complainant failed to show
that management’s proffered reason for giving her the “Effective”
rating was pretext for discrimination. With respect to claim 3, the AJ
noted that although Complainant’s customer assignments were slightly
higher, Complainant did not have more responsibilities because her
customers worked for agencies that were not as active in comparison to
HRS1’s customers’ agencies. The AJ dismissed claim 4 pursuant to
29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The
AJ also dismissed claim 5 pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim, finding that Complainant did not establish
that she was an aggrieved employee. With respect to claims 6 and 7,
the AJ noted that Complainant failed to establish that the Agency’s
legitimate, nondiscriminatory reasons were pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that S1 would greet Caucasian employees,
but not African-American employees. Complainant contends that S1 provided
her with the “Effective” performance rating without requesting a list
of contributions from her or other staff members. Complainant contends
that her team leader position was not supervisory and her rating was
based on the performance actions of her team.

Complainant contends that S1 assigned her a greater workload than
HRS1. Complainant contends that she was responsible for 97 employees,
while HRS1 was only responsible for 82 employees. Complainant contends
that she was responsible for the accuracy of 22 reports, while HRS1 was
only responsible for one report. Complainant contends that S1 assigned
her the least experienced back-up HR Specialist who could not take over
in her absence. Complainant contends that Agency management never had
an official policy that required employees to provide office coverage
until 5:00 p.m. and obtain approval before obtaining credit hours.
Complainant further contends that by the time the Agency responded to
her accommodation request, she was no longer under her doctor’s care
and did not need the accommodation.

Complainant also contends that the Agency violated the AJ’s January 3,
2008, Acknowledgement and Order pertaining to discovery. Specifically,
Complainant contends the Agency untimely submitted its discovery request
25 days after the AJ issued the Acknowledgement and Order. Complainant
contends that the AJ failed to sanction the Agency for failing to comply
with the Acknowledgement and Order. Complainant contends that the AJ
improperly granted the Agency additional time to prepare for its Motion
for Summary Judgment. Complainant contends that the AJ also improperly
granted the Agency the ability to exceed the page limit in its Motion for
Summary Judgment. Complainant further contends that the AJ improperly
rejected her March 10, 2008, Motion Compel because the designation of
representative form had not been signed. In addition, Complainant contends
that the AJ did not return her telephone calls pertaining to procedural
questions. Complainant also contends that the Agency failed to provide
her with a copy of its April 24, 2008, Motion for Summary Judgment.

In response, the Agency asserts that Complainant’s representative
received the Agency’s Motion for Summary Judgment. The Agency asserts
that it sent an e-mail to Complainant’s representative informing her
that the motion was exceeding the page limit. The Agency asserts that
Complainant’s representative replied via e-mail, communicating that she
was going to file a reply to the Agency’s motion. The Agency asserts
that Complainant received the Agency’s motion from her representative.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ's legal
and factual conclusions, and the Agency's final order adopting them,
de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an
appeal from an Agency's final action shall be based on a de novo review
. . .”); see also EEO Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), Chap. 9, § VI.B. (Nov. 9, 1999) (both an administrative
judge's decision to issue a decision without a hearing and the decision on
the merits of the complaint will be reviewed de novo). This essentially
means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's,
and Agency's, factual conclusions and legal analysis - including on the
ultimate fact of whether intentional discrimination occurred, and on
the legal issue of whether any federal employment discrimination statute
was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo
standard of review “requires that the Commission examine the record
without regard to the factual and legal determinations of the previous
decision maker,” and that EEOC “review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

Summary Judgment

We must first determine whether it was appropriate for the AJ to have
issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he
or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary
judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage
and all justifiable inferences must be drawn in the non-moving party's
favor. Id. at 255. An issue of fact is “genuine” if the evidence is
such that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material”
if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing
a decision without holding a hearing is not appropriate. In the context
of an administrative proceeding, an AJ may properly consider issuing a
decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty
v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally,
an AJ should not rule in favor of one party without holding a hearing
unless he or she ensures that the party opposing the ruling is given
(1) ample notice of the proposal to issue a decision without a hearing,
(2) a comprehensive statement of the allegedly undisputed material facts,
(3) the opportunity to respond to such a statement, and (4) the chance
to engage in discovery before responding, if necessary. According to the
Supreme Court, Rule 56 itself precludes summary judgment “where the
[party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge
must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29
C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion
for a decision without a hearing).


After a review of the record, the Commission finds that the AJ's
issuance of a decision without a hearing was appropriate. With respect to
Complainant’s contention that she never received the Agency’s April
24, 2008, Motion for Summary Judgment, she does not dispute that she
received the AJ’s order granting the Agency an extension to file the
motion until April 25, 2008, from her representative. We note that the
AJ did not issue a decision until September 5, 2008, which was more than
four months after the April 25, 2008, deadline of which Complainant was
aware. Complainant does not dispute the Agency’s contention that her
representative received the motion. We note that on appeal, Complainant
had the opportunity to provide evidence and arguments to establish that
the AJ's decision to grant summary judgment and to issue a finding of
no discrimination was inappropriate, as explained below. Therefore,
we find that Complainant has not established that she was unfairly
denied the opportunity to oppose summary judgment.  We further find that
that the record has been adequately developed, Complainant was given a
comprehensive statement of undisputed facts, and had the opportunity to
engage in discovery. Further, even if we assume all facts in favor of
Complainant, a reasonable fact finder could not find in Complainant's
favor, as explained below. Therefore, no genuine issues of material fact
exist. 1

Claims 4 and 5
We concur with the AJ that claim 4 must be dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(2), for untimely EEO Counselor contact. The record
reflects that in October 2006 S1 established the office coverage policy
instructing staff that the office needed at least one employee to stay
until 5:00 p.m. on a rotating basis. ROI, Ex. F2, at 10. Complainant’s
EEO contact was not until January 18, 2007. Therefore, as for claim 4,
we concur with the AJ that Complainant’s EEO Counselor contact was
beyond the 45-day time limit.
With respect to claim 5, we concur with the AJ that Complainant’s claim
must be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) and (a)(5) for
failure to state a claim. The Commission's regulations provide, in part,
that the Agency shall dismiss a complaint that alleges a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. We also find that Complainant has failed to
establish that she was aggrieved. Specifically, the record reflects
that after S1 conferred with management about the matter, the Agency
re-certified the credit hours on Complainant’s timesheet for pay period
one the next day. ROI, Ex. B2, at 59.
Reasonable Accommodation (Claim 1)
Under the Commission's regulations, federal agencies may not discriminate
against individuals with disabilities and are required to make reasonable
accommodation for the known physical and mental limitations of qualified
individuals with disabilities, unless an agency can show that reasonable
accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o)
and (p).  For purposes of further analysis only, we will assume that
Complainant is a qualified individual with a disability and is entitled
to coverage under the Rehabilitation Act.
Complainant claims that S1 made her go through the Agency’s formal
process to request a reasonable accommodation. Complainant also claims
that by the time the Agency responded to her accommodation request,
she was no longer under her doctor’s care and did not need the
accommodation. Notwithstanding Complainant’s contentions, we find
that she has failed to establish that the Agency denied her a reasonable
accommodation. The record reflects that from January 24, 2007, to March
2007, S1 excused Complainant from the 5:00 p.m. coverage obligation as
she requested. ROI, Ex. F1, at 11. Complainant does not dispute the fact
that she no longer needed the accommodation after March 2007.
Disparate Treatment (Claims 2, 3, 6, and 7)
Because we find that no direct evidence of discrimination exists, we
turn to Complainant's burden to prove he was discriminated against as
alleged. To prevail in a case such as this, Complainant must satisfy
the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567,
576 (1978). The prima facie inquiry may be dispensed with in this case,
however, since the agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep't of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997); Pavelka v. Dep't of the Navy,
EEOC Request No. 05950351 (Dec. 14, 1995).

Assuming for the sake of argument that Complainant established a prima
facie case of discrimination based on race, sex, age, disability,
and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim 2,
S1 explained that Complainant received an “Effective” rating for
her performance appraisal because the Executive Resources Team under
Complainant’s leadership did not develop and implement policies in a
timely manner. ROI, Ex. F2, at 4-6. S1 explained that Complainant, as
team leader, did not effectively work to resolve errors and problems of
the team, which resulted in S1 having to become personally involved in
corrective actions. Id. S1 also explained that Complainant’s knowledge
of Office of Personnel Management and Agency regulations did not exceed
the fully successful level. Id.

Regarding claim 3, S1 explained that Complainant was assigned more
customers because her customers worked for agencies that were not as
active as HRS1’s customers’ agencies. Id. at 8. As for claim 6,
S1 explained that she denied Complainant’s leave request because
she could not approve both Complainant’s and HRS2’s request for
leave for the same period because of office coverage problems. Id. at
11. S1 explained that she decided to approve HRS2’s leave request
because she had taken less leave than Complainant and had submitted
her request first. Id. Regarding claim 7, S1 explained that Complainant
worked overtime earning credit hours without her approval, contrary to
previous instructions. Id. at 10.

Because the Agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, Complainant now bears the
burden of proving by a preponderance of the evidence that the Agency's
articulated reasons were a pretext for discrimination. Complainant
can do this by showing that the Agency's preferred explanation is
unworthy of credence. Burdine, 450 U.S. at 256. In attempt to show
pretext, Complainant contends that S1 would not greet African-American
employees. Complainant contends that S1 gave her the “Effective”
rating without requesting her list of contributions or informing her
that her rating had fallen. Complainant contends that S1 assigned her
a greater workload than HRS1. Complainant contends that S1 assigned her
the least experienced back-up HR Specialist who could not take over in
her absence. Complainant also contends that Agency management never had
an official policy that required employees to obtain approval before
obtaining credit hours.

While Complainant contends she deserved a higher performance rating,
we can find no evidence to establish that S1’s actions were motivated
by discriminatory animus based on her protected classes. We note that
employers have broad discretion to set policies and carry out personnel
decisions, and should not be second-guessed by a reviewing authority
absent evidence of unlawful motivation. Burdine, 450 U.S. at 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997). With respect to claim 3, the record reflects, as noted above, that
S1 revised the customer list assigning Complainant only one more customer
than HRS1. ROI, Ex. F2A, at 28. While Complainant contends that she was
assigned to more customers, we note that Complainant does not dispute
S1’s contention that Complainant was assigned to more customers because
HRS1’s customers worked for agencies that were more active. As for
claim 6, we note that there is no dispute that both Complainant and HRS2
had requested leave for the same time period.2 Lastly, regarding claim 7,
there is no dispute that Complainant earned credit hours without S1’s
knowledge, and all employees were instructed that S1’s approval was
required before obtaining credit hours. ROI, Ex. F1 at 7-8. Therefore,
we find that Complainant has failed to establish that the Agency’s
reasons were pretext or motivated by discriminatory animus based on race,
sex, age, disability, or reprisal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final order adopting the AJ’s decision.

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 (Nov. 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 (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 (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


March 16, 2012
Date


1 We find that Complainant has failed to establish that the AJ abused
his discretion when, among other things, he denied Complainant's Motion
to Compel Discovery and allowed the Agency to submit its discovery
request. See 29 C.F.R. § 1614.109(e). We note that AJ's have broad
discretion in the conduct of hearings, including discovery, and the
determination of whether to admit evidence, issue sanctions or permit
or compel the testimony of witnesses. See 29C.F.R. § 1614. 109.


2 To the extent Complainant is alleging a violation of the FMLA, the
Commission has no jurisdiction over the FMLA. See, e.g., Jordan v. Dep't
of Defense, EEOC Appeal No. 0120055250 (Dec. 28, 2006).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013



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