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). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120090356 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120090356