Alvina S.,1 Complainant,v.Scott Pruitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jan 17, 2018

0120151681 (E.E.O.C. Jan. 17, 2018)

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

Alvina S.,1
Complainant,

v.

Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120151681

Hearing No. 440-2012-00183X

Agency No. 2011-0056-R05

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9, 2015, final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Remedial Project
Manager, Region 5, Superfund Division, Remedial Response Branch 2, Section 5 in Chicago,
Illinois. A Remedial Project Manager was responsible for assessing hazardous waste sites and
managing the remediation of assigned sites over a period of generally ten to twelve years. With
the exception of a temporary detail, Complainant has held the same position since April 1992.

At the time of the events giving rise to this complaint, the Section Chief, Remedial Response
Branch 2, Section 5 was Complainant’s first level supervisor (S1). The Branch Chief, Remedial
Response Branch 2, was Complainant’s second level supervisor (S2).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In 1990, Complainant was diagnosed with chronic major depression and an associated sleep
disorder. In 2005, Complainant requested and received a reasonable accommodation from her
first level supervisor at the time. In May 2006, S1 became Complainant’s first level supervisor.
In March 2007, Complainant was absent from work and did not provide the Agency with timely
notice of her absence. Complainant told S1 of her depression and sleep disorder and explained
that as a result of her depression and medication she sometimes could not wake up at a
predictable time. Complainant asked S1 to be flexible as to the time Complainant reported her
absences. In March 2007, the Agency agreed to a temporary accommodation which allowed
Complainant to report an absence by 4:30 p.m. on the date of the absence.

In April 2007, the Agency agreed to accommodate Complainant by allowing her to report an
absence by noon on the date of the absence or to call the night before to report an absence.
Between April 2007 and September 2010, Complainant was, according to the EEOC
Administrative Judge, an “outstanding” Remedial Project Manager. She was absent for five days
during those three years and reported each of those absences by noon.

In August 2010, Complainant’s father was hospitalized for a serious medical condition and
Complainant’s depression worsened significantly. In September 2010, Complainant was feeling
overworked and asked S1 for a reduction in her workload. S1 reassigned two projects that at the
time did not require that much work for Complainant. Later that fall, Complainant began to have
trouble meeting the notification requirements provided in the 2007 accommodation.
Specifically, on October 7, 2010, November 30, 2010, and January 12, 2011, Complainant was
absent from work and did not notify S1 of her absences until subsequent working days. S1
issued Complainant a Memorandum of Warning in January 2011, a Memorandum of Instruction
in March 2011, and verbally counseled her.

On March 23, 2011, Complainant did not report for work and only provided notice of her
absence at 3:59 that afternoon. Complainant requested emergency annual leave for the March 23
absence. S1 denied Complainant’s request for emergency annual leave and charged her as
AWOL.

On April 15, 2011, S2 became the decision maker regarding Complainant’s reasonable
accommodation request. Beginning in May 2011, S1 was detailed to another position and
Complainant began reporting to another supervisor. On June 12, 2011, S2 sent a memo detailing
the final accommodation granted to Complainant which included an auto email agent to report
her absences. Since June 2011, Complainant had not had any difficulty using the auto email
agent to report her absences. Complainant has not been warned about her notification of
absences and has not been denied leave for any disability related absence.

On July 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her based on her disability (depression and associated sleep disorder) when:

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1. On June 13, 2011, S2 abruptly terminated the interactive process and issued a
final determination on Complainant’s reasonable accommodation request;
2. On April 15, 2011, S1 refused to grant emergency annual leave and charged
Complainant with AWOL;
3. In March 2011, S1 instructed Complainant by memorandum and in oral
discussions to comply with the attendance procedures set forth in the April 2007
reasonable accommodation plan;
4. On January 14, 2011, S1 warned Complainant in a memorandum that she would
be subjected to disciplinary actions if she was absent again in violation of the
terms of the 2007 reasonable accommodation;
5. After receiving the written warning on January 14, 2011, Complainant’s health
deteriorated significantly;
6. Starting in August 2010, Complainant’s need for sick leave increased, due to
management’s refusal to provide her with assistance as a result of her father’s
serious medical condition and double or triple work load; and
7. In April 2007, management pressured Complainant into signing an ineffective
accommodation agreement which provided an extra 30 minutes to call in to
request sick leave.

On July 21, 2011, the Agency accepted claims (1) – (3) for processing. The Agency dismissed
claims (4) – (7) on the grounds of untimely EEO Counselor contact.

At the conclusion of the investigation on the accepted claims, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a hearing. While her case was before the AJ, Complainant objected to the Agency’s
dismissal of claims (4) – (7). The AJ upheld the dismissal of claim (7) on the grounds of
untimely EEO Counselor contact noting it was a discrete event which is separated by three years
and a substantial change in Complainant’s medical condition from the rest of the putative
harassment. However, the AJ reversed the dismissal of claims (4) – (6).

The AJ held a hearing on December 2 - 3, 2014, and issued a decision on December 18, 2014. In
her decision, the AJ found the Agency failed to reasonably accommodate Complainant for her
disability and harassed her because of her disability from October 8, 2010, through June 12,
2011. The AJ noted that the Agency reasonably accommodated Complainant in June 2011. The
AJ determined Complainant could recover leave taken from October 8, 2010, through December
31, 2011 because of her depression. The AJ ordered the parties to provide her with a total of the
annual and other leave taken by Complainant during the relevant time by January 19, 2015. The
AJ determined Complainant was entitled to recover her out of pocket costs for therapy in 2011.
The AJ did not award the costs of therapy in 2012 or 2013 or thereafter, because at that point in
time Complainant had an effective accommodation and was likely affected by other events, e.g.,
the illness and death of her father and sister. The AJ ordered the parties to provide her with the
sum of these costs by January 19, 2015. The AJ provided the parties an opportunity to submit
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statements regarding attorney’s fees and costs. On January 21, 2015, the AJ issued a Remedial
Order: Ruling on Fee Petition and On Other Remedies.

As relief for the finding of discrimination, the AJ ordered the Agency to: post a notice of
violation; provide training for the managers at the Chicago District Office facility on the
Americans with Disabilities Act (ADA); pay Complainant nonpecuniary, compensatory damages
in the amount of $40,000.00; reimburse Complainant for the AWOL charge in March 2011; pay
Complainant $6,526.25 in medical costs for the period of October 2010 through December 2011;
restore 2/3 of the leave Complainant requested from October 2010 through December 2011; and
pay Complainant $97,197.50 in attorney’s fees and $2,802.10 in costs.

The Agency subsequently issued a final order on March 9, 2015. The Agency’s final order fully
implemented the AJ’s finding that Complainant proved that the Agency subjected her to
discrimination as alleged. The Agency also fully implemented the relief ordered by the AJ.

On appeal, Complainant challenges the remedies awarded from the finding of discrimination and
harassment. Complainant claims she is entitled to more nonpecuniary, compensatory damages.
Complainant argues the AJ’s order failed to acknowledge the severity of the exacerbation of her
depression caused by the Agency’s conduct. Complainant notes her depression and sleep
disorder are chronic and severe. She says her symptoms fluctuate over time, based upon external
stresses and the efficacy of her medication. Complainant notes that her treating psychiatrist
noted that she goes through periods of exacerbation of her major depression. Complainant
claims that as of December 2014, four years after the discrimination began, she continued in a
period of exacerbation resulting from the discrimination and harassment. Complainant states the
AJ failed to consider that her condition worsened to “the worst point” her psychiatrist had ever
seen it. Complainant notes this included one instance where she could not deny she was suicidal
and her doctor ordered her to an emergency room.

Complainant also notes the AJ’s decision stated that Complainant “suffered two serious family
losses (in July and November 2012) which likely contributed to her depression.” However,
Complainant notes her father died in June 2012, and her sister became ill in August 2013, and
died in November 2014 (not November 2012). Complainant argues that the AJ’s conclusion that
the death of family members “likely contributed to her depression” is completely speculative and
reflects the AJ’s confusion of grief with depression. Complainant also requests reimbursement
for pecuniary damages after 2011, and restoration of lost leave after 2011. Moreover,
Complainant claims the AJ improperly reduced the restoration of leave time through 2011 by
one-third. Complainant requests restoration of leave through the date of the hearing.

In response to Complainant’s appeal, the Agency states that in awarding $40,000.00 in
nonpecuniary, compensatory damages, the AJ properly considered Complainant had a
preexisting condition, the severity and duration of the harm, and that Complainant suffered from
two major family losses which likely contributed to her depression. The Agency points out the
initial flare-up of Complainant’s condition in 2010, was not caused by the Agency’s failure to
accommodate her disability or any alleged harassment. Instead, the Agency notes Complainant
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admitted the initial flare-up was due to feeling burnt out at work and her father’s hospitalization
for a serious medical condition. The Agency recognizes Complainant claimed that her level of
depression increased, she exercised less, suffered from severe stress, anxiety, and insomnia. The
Agency states Complainant has never been hospitalized for her condition. The Agency notes
that after the incidents at issue in her complaint, Complainant’s psychiatrist did not change her
diagnosis. The Agency argues that Complainant’s claim of the alleged severity of harm due to
S1 is severely undermined by her decision to accompany S1 on a vacation to Mexico in February
2011.

Regarding Complainant’s claim that the AJ did not consider that her depression reached the
“worst point,” the Agency notes that the testimony from Complainant’s psychiatrist indicated
this occurred in 2013. The Agency notes Complainant admits she may suffer from her medical
conditions for the rest of her life; however, the Agency argues that Complainant’s claim that she
suffered an exacerbation of her condition for four straight years exclusively due to S1’s behavior
is not supported by the record. The Agency states that Complainant admitted in January 2012,
that she was returning to feeling like her normal self. The Agency points out that Complainant
then inconsistently testified years later that her depression worsened in 2012, after an effective
reasonable accommodation was in place and she was no longer reporting to S1. The Agency
notes the record demonstrates that it provided Complainant an effective accommodation in June
2011.

The Agency also argues that the AJ appropriately weighed evidence of Complainant’s pre-
existing conditions and other relevant, external factors when determining the amount of
compensatory damages. The Agency claims it cannot be held liable for the full extent of the
harm described by Complainant. The Agency notes that during the period of 2011 to 2014,
Complainant experienced the serious illnesses and the subsequent deaths of both her father and
sister. The Agency claims the AJ properly noted, these events likely contributed to
Complainant’s depression. The Agency notes that not only did Complainant testify that her
father’s and sister’s illnesses and subsequent deaths caused her great stress, but that she and her
doctor also testified that stress exacerbates her depression. Finally, the Agency argues
Complainant provided no support for her demand for additional remedies.

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
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testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

At the outset, we note that on appeal neither the Agency nor Complainant challenge the AJ’s
finding of disability discrimination that the Agency failed to accommodate her and harassed her
based on her disability from October 8, 2010, through June 12, 2011. Thus, we AFFIRM the
finding that the Agency failed to accommodate Complainant and harassed her based on disability
from October 8, 2010, through June 12, 2011. Additionally, we note that Complainant does not
challenge the dismissal of claim (7) and we find no reason to alter that decision. Also,
Complainant does not challenge the finding that she was reasonably accommodated after June
12, 2011.

Nonpecuniary damages

In this case, the AJ found that Complainant credibly testified that S1’s conduct made
Complainant feel frightened, intimidated, and anxious for her job. Complainant testified that
S1’s constant scrutiny and skepticism concerning her disability caused her depression to deepen,
which in turn caused her to withdraw from her every day activities such as hockey, tutoring, and
other social activities, and forced her to focus on work, sleep, food, and exercise. The AJ noted
other witnesses testified that Complainant demonstrated emotional distress while at work when
asked to discuss her absence notifications. The AJ also noted that Complainant’s treating
psychiatrist credibly testified that Complainant’s depression flared up in 2010 because of her
difficulties she had at work getting an accommodation. The psychiatrist noted Complainant
became anxious, depressed, and dreaded going to work. The psychiatrist recommended
individual and group therapy, which Complainant attended.

When discrimination is found, the agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Complainant v.
U.S. Postal Serv., EEOC Appeal No. 01933395 (July 21, 1994). Pursuant to section 102(a) of
the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination
under either Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §2000e
et seq., or Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. may receive compensatory damages for past and future pecuniary losses
(i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish)
as part of this “make whole” relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212
(1999), the Supreme Court held that Congress afforded the Commission the authority to award
compensatory damages in the administrative process.

Nonpecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain,
suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional
standing, injury to character and reputation, injury to credit standing, and loss of health. See
EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under Section
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102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002, at II.A.2 (July 14, 1992)
(Compensatory Damages Guidance). There is no precise formula for determining the amount of
damages for nonpecuniary losses except that the award should reflect the nature and severity of
the harm and the duration or expected duration of the harm. See Complainant v. Dep’t of the
Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that
nonpecuniary, compensatory damages are designed to remedy the harm caused by the
discriminatory event rather than punish the agency for the discriminatory action. Further,
compensatory damages should not be “monstrously excessive” standing alone, should not be the
product of passion or prejudice, and should be consistent with the amounts awarded in similar
cases. See Complainant v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999)
(citing Cyngar v, City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989)). Where a complainant’s
emotional harm is due in part to personal difficulties, which were not caused or exacerbated by
the discriminatory conduct, the agency is liable only for the harm resulting from the
discriminatory conduct. See Compensatory Damages Guidance, at II, A.2.

The AJ’s conclusion that Complainant is entitled to $40,000.00 in nonpecuniary, compensatory
damages is supported by substantial evidence in the record. This takes into consideration
Complainant’s history of major depression and insomnia and the fact that she experienced other
stressors in her life. The Commission has found that where a complainant has a pre-existing
condition, the Agency is liable only for the additional harm or aggravation caused by the
discrimination. Wallis v. United States Postal Service, EEOC Appeal No. 01950510 (November
13, 1995)

As Complainant requested damages for the period of 2010 through 2014, we find the AJ properly
considered the serious illnesses and subsequent deaths of Complainant’s father and sister which
occurred during this time frame in determining Complainant’s entitlement to compensatory
damages. Complainant testified that the initial flare-up of her condition in 2010, was caused by
her feeling overworked and her father’s hospitalization for a serious medical condition.
Complainant testified that she helped with her father in Michigan with his illness and that as a
result she experienced stress and sadness. Complainant testified that her sister became ill in
August 2013 and passed away in November 2014. Complainant stated she helped with her
sister’s illness during this time and stated her sister’s illness and decline was sad and stressful.
Complainant’s psychiatrist testified that the impact of her father’s illness in 2010, and his
subsequent death did have an impact on her depression and sleeping disorder. The psychiatrist
noted that Complainant went through a period of grieving for both her father and her sister’s
death. Given the testimony by Complainant and her psychiatrist that stress exacerbates her
depression, we find the AJ properly considered the deaths of her father and sister in determining
nonpecuniary damages. Moreover, we note that by April 2011, S2 had taken over as decision
maker on Complainant’s reasonable accommodation request, by May 2011, S1 was no longer
Complainant’s supervisor, and by June 2011, the Agency had provided Complainant with an
effective reasonable accommodation. Upon review, we find Complainant’s claim that she
suffered an exacerbation of her condition for four straight years exclusively due to S1’s behavior
is not supported by the record.

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In order to establish an entitlement to compensatory damages, the burden is on a complainant to
submit evidence to show that the agency's discriminatory conduct directly or proximately caused
the losses for which damages are sought. See Complainant v. U.S. Postal Serv., EEOC Request
No. 05980311 (February 26, 1999). After a thorough review of the record, and given the
severity, nature, and duration of distress experienced by Complainant as a direct result of the
discrimination, we find that the AJ’s award of $40,000.00 for her emotional distress in
nonpecuniary, compensatory damages is supported by substantial evidence. We find this award
is not motivated by passion or prejudice, not “monstrously excessive” standing alone, and
consistent with the amounts awarded in similar cases. See Woodard v. Department of Labor,
EEOC Appeal No. 01A11604 (October 11, 2002), request for recons. den., EEOC Request No.
0520030216 (January 29, 2003) (awarding $40,000 for nonselection where complainant
experienced mood swings, loss of sleep, weight loss, loss of enjoyment of life, major depression
and sought professional treatment which included medication and therapy sessions.); Wiggins v.
Department of the Air Force, EEOC Appeal No. 07A10072 (July 23, 2002) ($40,000 in
nonpecuniary, compensatory damages awarded where agency harassed complainant and issued a
notice of proposed termination (later reduced to a suspension) which resulted in stress-related
hair loss, depression, upset stomach, impaired relationship with spouse and harm lasted two
years); Anderson v. United States Postal Service, EEOC Appeal No. 01A14976 (April 2, 2003)
($40,000.00 in nonpecuniary, compensatory damages awarded where agency subjected
complainant to harassment by her supervisor which resulted in continuing back problems and
complainant was diagnosed with major depression and post-traumatic stress disorder and finding
physical and mental conditions attributable to other factors).

Pecuniary damages

Compensatory damages may be awarded for pecuniary losses that are directly or proximately
caused by the agency's discriminatory conduct. See Compensatory Damages Guidance, at 8.
Pecuniary losses are out-of-pocket expenses incurred as a result of the agency's unlawful action,
including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses,
physical therapy expenses, and other quantifiable out-of pocket expenses. Id. Past pecuniary
losses are losses incurred prior to the resolution of a complaint through a finding of
discrimination, the issuance of a full-relief offer, or a voluntary settlement. Id. at 8-9. Future
pecuniary losses are losses that are likely to occur after resolution of a complaint. Id. at 9.

Upon review, substantial evidence supports the AJ’s determination that Complainant is entitled
to pecuniary damages in the amount of $6,526.25 for the period of October 2010 through
December 2011. Complainant failed to show that she is entitled to recover additional pecuniary
damages after December 31, 2011.

Other remedies

Upon review, we find the AJ properly awarded Complainant reimbursement for the March 23,
2011 AWOL charge. On appeal, Complainant contends the Agency has not yet reimbursed her
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for that day. The Agency does not claim it has made the payment. Rather, the Agency states
that no payment is due until Complainant’s appeal is resolved.

Complainant also requested restoration of leave for the period of October 8, 2010, through
December 31, 2011, in the amount of 90 hours of annual leave, 246 hours of sick leave, 3.5
hours of other leave. The AJ noted Complainant testified that as of August 2010, her depression
worsened in part because her father became seriously ill. The AJ noted that after the hearing,
Complainant provided documentation that she used the requested leave due to discrimination.
The AJ determined that given the other painful circumstances which Complainant experienced in
2010 and 2011, she would reduce the requested leave by a third. We note that when testifying
about her father’s illness beginning in August 2010 and continuing until his subsequent death in
June 2012, Complainant stated that she “went to Michigan plenty of times” to help with her
father’s illness and experienced stress as a result of this. We find Complainant did not show that
the AJ’s reduction by one-third of her requested leave was improper. Moreover, Complainant
did not show that she was entitled to restoration of leave beyond December 31, 2011.

CONCLUSION

Accordingly, the Agency’s finding that Complainant was subjected to discrimination when the
Agency failed to accommodate her and harassed her based on her disability is AFFIRMED. The
decision on relief is AFFIRMED. The matter is REMANDED to the Agency for compliance
with the Order herein.

ORDER

To the extent it has not already done so, the Agency shall take the following actions:

1. Within 60 days of the date this decision is issued, pay Complainant $40,000 in
nonpecuniary, compensatory damages.
2. Within 60 days of the date this decision is issued, pay Complainant $6,526.25 in
pecuniary damages.
3. Within 60 days of the date this decision is issued, reimburse Complainant for AWOL
charged on March 23, 2011.
4. Within 60 days of the date his decision is issued, pay Complainant $97,197.50 in
attorney’s fees and $2,802.10 in costs.
5. Within 60 days of the date this decision is issued, restore 2/3 of all requested leave to
Complainant.
6. Within 90 days of the date this decision is issued, the Agency shall provide a
minimum of eight hours of in-person or interactive training to Complainant’s
supervisor (at the time of the discrimination) to ensure that Complainant’s supervisor
becomes aware and continues to be aware of her obligations, her responsibilities, and
rights under EEO law, including the right of employees to work in an environment
free from disability discrimination.
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7. Within 60 days of the date this decision is issued, the Agency shall consider taking
appropriate disciplinary action against Complainant’s supervisor (at the time of
discrimination). The Agency shall report its decision to the Compliance Officer
referenced herein. 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 in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its Chicago District Office facility copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The Agency
shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the Compliance Officer as
directed in the paragraph entitled "Implementation of the Commission's Decision," within 10
calendar days of the expiration of the posting period. The report must be in digital format, and
must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in an
appropriate United States District Court within ninety (90) calendar days from the date that you
receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
complaint the person who is the official Agency head or department head, identifying that person
by his or her full name and official title.
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Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 17, 2018
Date