0120170991
10-10-2018
Annalee D.,1 Complainant, v. Emily W. Murphy, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Annalee D.,1
Complainant,
v.
Emily W. Murphy,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120170991
Agency No. GSA-16-CO-Q-0027
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 December 15, 2016, final decision 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.
ISSUES PRESENTED
The issues presented are whether the Agency properly found that Complainant did not prove she was subjected to reprisal, and whether the Agency should be sanctioned because its Office of General Counsel (OGC) intruded into the EEO process during counseling and the investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-13, within the Federal Acquisition Service (FAS) in Washington, D.C.
On March 24, 2016, Complainant filed an EEO complaint in which she alleged that the Agency subjected her to reprisal because of prior protected EEO activity when:
1. On November 16, 2015, she became aware that her fiscal year 2015 (FY 2015) performance plan had been altered in the Comprehensive Human Resources Integrated System (CHRIS);
2. On January 14, 2016, she was told to withdraw her December 24, 2015 request for annual leave;
3. On January 20, 2016, her request for official time was denied;
4. On January 28, 2016, her time spent on EEO activities was being closely monitored; and
5. Around January 25, 2016, she became aware that she was left off emails that were sent to her team.
In an investigative statement, Complainant stated that she previously filed two EEO complaints regarding her immediate supervisor (S1) that were before an EEOC Administrative Judge (AJ). Regarding claim 1, Complainant stated that between November 10, 2015 and November 16, 2015, S1 asked her to review her FY 2015 annual performance plan and to be prepared to discuss it. Complainant further stated that when she went into the CHRIS system, she noticed that there was information in the critical factors that had not been in the FY 2015 performance plan. She stated that when she looked at the FY 2015 performance plan, she noticed that her FY 2015 performance plan had been altered. Complainant stated that some critical elements contained completely different standards in the altered plan than were found in her original FY 2015 plan.
She stated that later that day, S1 told her that he had not made any changes to her FY 2016 performance plan, and he used the FY 2015 plan to create the FY 2016 plan. Complainant stated that S1 said that perhaps her former immediate supervisor had made changes to her FY 2015 performance plan, but her former supervisor denied making changes to the plan when Complainant talked to her.
Regarding claim 2, Complainant stated that she requested leave on October 25, 2015 for December 24, 2015, which was a "use or lose leave" request. She stated that the leave was approved on two occasions, once when she used December 24, 2015 as an alternative work schedule (AWS) day off, and again when she changed December 24, 2015 to be a combination of annual leave and administrative/holiday leave after the President granted additional holiday leave for that date. However, Complainant stated that the timekeeper subsequently asked her to withdraw her annual leave request but did not provide any specific reason for her request. Complainant stated that she did not agree with the timekeeper's request because she is not in her supervisory chain of command and is not a supervisor or manager.
Regarding claim 3, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 did denied the request without providing a reason for doing so. She stated that S1 told her to take leave if she needed to work on her EEO case.
Regarding claim 4, Complainant stated that on January 28, 2016, she had a conference call scheduled for 9:00 a.m. at her attorney's office, and she planned on leaving her home office around 8:30 a.m. for the appointment. She stated that she estimated that the meeting would be for an hour. Complainant further stated that S1 wanted her to let him know when she left her home office, when she arrived at the attorney's office, when she was leaving the attorney's office, and when she returned to her home office. She stated that S1 also told her to have her work-issued mobile device. "I felt on edge and nervous the whole time I was away from my home office attending to my EEO case," Complainant stated. Report of Investigation (ROI), p. 83.
Regarding claim 5, Complainant stated that during a blizzard on or about Monday, January 25, 2016, S1 sent out at least two emails to the Customer Service staff that provided guidance on using telework during that week because of the weather. She stated that she was not included on these emails. Complainant further stated that she normally teleworks Mondays and Tuesdays, and on Tuesday evening she sent S1 a request for ad-hoc telework for Wednesday because her neighborhood streets had not been plowed, but she did not hear from S1 for several hours. She stated that after the Office of Personnel Management (OPM) sent notice that the operating status would include unscheduled telework, she sent S1 another email that said that she would utilize the unscheduled telework option for that Wednesday. Complainant stated that S1 then responded that he had notified everyone in the office that he was authorizing telework for Wednesday, and during her conversation with S1, she learned that S1 had sent out another email that she did not receive that authorized everyone to telework on Tuesday.
After 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to reprisal as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency violated EEOC's requirement that agencies separate the EEO process from defensive functions and that the Agency should be sanctioned for this violation. Complainant further argues that the Agency failed to produce an accurate and complete investigative report. Complainant also argues that the final decision improperly found that she did not establish a prima facie case of reprisal on some of her claims. The Agency requests we affirm its final decision.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (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
Claim 3: Denial of Official Time
As an initial matter, we note that although the Agency analyzed claim 3 as a discrimination claim, we have consistently held that an allegation pertaining to the denial of EEO official time states a separately processable claim alleging a violation of the EEOC regulations, without requiring a determination of whether discrimination motivated the Agency's action. See Edwards v. U.S. Postal Serv., EEOC Request No. 059605179 (Dec. 23, 1996).
EEOC's regulations provide complainants a reasonable amount of official time, if otherwise on duty, to prepare their EEO complaints and to responses to the Agency and the Commission's requests for information. The regulation found at 29 C.F.R. �1614.605(b) provides that "if the complainant is an employee of the agency, he or she shall have a reasonable amount of official lime, if otherwise on duty, to prepare the complaint and to respond to agency and EEOC requests for information." The Commission has the authority to remedy a violation of 29 C.F.R. �1614.605 without a finding of discrimination. Therefore, in reviewing this claim, our focus is not on the motivation, but rather on the justification for why Complainant was denied official time. Edwards, supra.
In this case, Complainant stated that on January 20, 2016, she submitted a request for official time of approximately four hours to S1 via email, but S1 denied the request without providing a reason for doing so. The record reflects, and Complainant affirms on appeal, that official time was requested for Complainant to work on her previous EEO complaints, Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021. Moreover, the record reveals that on January 20, 2016, the Agency informed the AJ presiding over those cases that it denied Complainant's request for official time because it already had provided her with over 100 hours of official time to work on her complaints, she was represented by counsel, and there were no meetings or hearings scheduled with Agency officials or the Commission. Further, S1 stated that he denied Complainant's request because she had already used an excessive amount of official time working on her EEO case, and she did not provide a satisfactory explanation of why she needed additional time.
Although the matter of official time was apparently raised with the AJ in Agency Numbers GSA-13-CO-Q-0045 and GSA-15-CO-Q-0021, the AJ's decision for those complaints does not indicate that this issue was addressed on the record. Moreover, there is sufficient evidence in the record for us to determine this claim with this complaint. Therefore, we address it herein.
Complainant maintains that S1 did not give a reason for denying her official time at the time of his decision. While this may be true, we note that Complainant does not rebut the Agency's claim that she had already been given over 100 hours of official time to prepare her complaints. Moreover, the record indicates that her request for official time occurred after the investigation had been completed, and over a year before the hearing. While there may have been a conference with the AJ during this period, there is no evidence that there was a need for Complainant to consult with her attorney about the cases for half a work day, especially in light of the fact that she had already been granted over 100 hours of official time. The Commission considers it reasonable for agencies to expect their employees to spend most of their time doing the work for which they are employed. EEO MD-110, Chap. 6 � VII.C. Therefore, an agency may restrict the overall hours of official time afforded. Id. Under these circumstances, we do not find that the Agency denied Complainant a reasonable amount of official time.
Adequacy of the Investigation
Complainant alleges that the Agency did not produce an accurate and complete investigative report because the report does not contain all 189 pages of supporting documents she submitted to the investigator. However, after a thorough review of the record, we find the investigator produced an appropriate and impartial factual record upon which we can make findings on Complainant's claim, in accordance with 29 C.F.R. � 1614.108(b).
Claims 1, 2, 4, and 5
Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 ((2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra.
In this case, the record reveals that Complainant previously filed two EEO complaints that named S1 as the responsible management official. The record further reveals that the two complaints were before an AJ during the time of the events of the case. S1 acknowledged that he was aware of Complainant's EEO activity during the time period at issue. Further, we find that the alleged actions are reasonably likely to deter EEO activity. Consequently, we find that the Complainant established a prima facie case of reprisal.
Nevertheless, we also find that the Agency provided legitimate, nondiscriminatory reasons for its actions regarding claims 1, 2, 4, and 5. Specifically, regarding claim 1, S1 stated that Complainant's performance plan was not altered, but her Performance Plan Worksheet (PPW) was changed. He stated that no signature was required for the Worksheet because it was a guide, which assists the supervisor in evaluating an individual's performance against the critical elements of their performance plan. S1 further stated that when he showed Complainant her FY 2016 performance plan and worksheet in November 2015, she refused to sign the plan and noted the changes in the worksheet from 2015. S1 stated that he indicated to Complainant that he copied and pasted directly from the CHRIS system the previous year's documents and did not know how it could have been changed from what she had been given in FY 2015. He stated that Complainant's PPW was changed to include work about Individual Work Plans and a requirement for customer visits, and he believed the Supervisory Human Resources Specialist (SHRS) who had drafted a revised worksheet for him to review altered Complainant's PPW.
S1 stated that it was a draft document that was never intended to replace the previous PPW without any concurrence and discussion with employees and the first-line supervisor. However, he stated that he understood that when the proposed changes were made to the PPW, the previous version was automatically replaced without anyone's knowledge. S1 stated that he believed that HR randomly selected Complainant's PPW as the one to revise as a template for him to review to see if PPWs could incorporate proposed changes.
SHRS stated that she was informed by S1 that Complainant's FY 2015 PPW was changed, but she did not know who altered it. However, SHRS also stated that she drafted a revised FY 2015 PPW for S1 to review for Complainant. She stated that the FY 2015 plan was going to be changed for all employees to incorporate tasks from the Individual Work Plan, which was a separate document. She stated that once Complainant's performance plan was changed, the supervisor would look at the revisions and make edits if necessary and use the plan as a master copy for all employees so that everyone had the same revised plan.
Regarding claim 2, S1 stated that on December 14, 2015, he approved Complainant for leave on December 24, 2015. He stated that on January 26, 2016, he instructed the timekeeper to inform Complainant to withdraw her request for five hours of annual leave because Human Resources (HR) guidance issued on December 15, 2015 indicated that she must use December 24, 2015 as her AWS and take the half-day holiday on December 23, 2015, not December 24, 2015. He further stated that the timekeeper was acting on his behalf when she asked Complainant to withdraw her leave slip. S1 also stated that five other employees under his supervision who had leave scheduled for December 24, 2015 were also asked to withdraw their requests.
Regarding claim 4, S1 stated that on January 28, 2016, he instructed Complainant to let him know when she left her home office, when she arrived at the attorney's office, when she returned to her home office, and to have her work-issued mobile device because he wanted to know when she was teleworking versus when she was on official time so that he could contact her if he needed to without interrupting her meeting with her lawyer.
Regarding claim 5, S1 stated that Complainant's exclusion from the January 25, 2016, inclement weather email was an oversight caused by his manual selection of employee names, instead of a group address. He further stated that he thought he had selected everyone's name on his staff before he sent the email on January 25, 2016. He further stated that January 25, 2016 was Complainant's normal telework day, and she notified him that she was teleworking that day. He stated that after Complainant sent him an email on January 26, 2016 asking if there was any word from OPM regarding the next day, he realized Complainant had been excluded from his January 26, 2016 email advising employees to telework on Wednesday, January 27, 2016. He stated that he immediately sent Complainant an apology email.
In an attempt to prove pretext, Complainant maintains that S1 changed his story about why or how her PPW was changed. We note that in her initial statement, S1 stated that he told Complainant he copied and pasted directly from the CHRIS appraisal system the previous year's documents, but three months later in his supplemental statement, he stated that he did not copy and paste anything from Complainant's FY 2015 performance plan. This discrepancy is inexplicable, but HR officials attested that the changes to Complainant's PPW only appeared on the worksheet, and they believed that S1 was not aware of the changes until after Complainant brought them to his attention. Moreover, the record reveals that HR and S1 attached a copy of the original PPW to Complainant's appraisal, which underscores the fact that the altered PPW was not used to evaluate Complainant. Consequently, we are persuaded Complainant's PPW plan was inadvertently altered during the process of having S1 review performance plans for all employees, and not because of retaliatory motives.
Regarding the withdrawal of Complainant's leave request, Complainant contends that there is no email evidence that S1 or the timekeeper asked other employees to withdraw their leave requests. However, we note that Complainant suffered no punitive consequences because of S1's directive to withdraw her leave request for December 24, 2015. In fact, the record indicates that in compliance with OPM and Agency instructions, S1's directive offered Complainant a time and attendance record of having all of December 24, 2015 off as her AWS, while having half a day holiday on December 23, 2015, although Complainant actually took December 23, 2015 as her AWS and worked a half day on December 24, 2015. Complainant was not charged AWOL or even forced to retroactively submit a leave slip to reflect the discrepancy. Thus, we find no reason to suspect retaliatory motive regarding this matter.
Regarding S1's monitoring of her time with her attorney, Complainant maintains that she was on edge during the meeting because of S1's actions. However, we do not find that S1's actions were an impermissible intrusion into Complainant's EEO activity. Instead, we are persuaded that they were an appropriate attempt to confirm Complainant's availability for work, while respecting her official time. In so finding, we find that there was no evidence that S1 sought to determine what Complainant discussed with her attorney, or to otherwise dissuade Complainant from EEO activity. In fact, S1's actions were designed to prevent entanglement in Complainant's EEO activity, not to foster it.
Regarding her exclusion from the inclement weather email, Complainant maintains that it was unlikely that S1's actions were an oversight because an employee who lived outside the Washington, D.C. area and two contractors who did not report directly to him received the emails. However, we find it plausible that S1 inadvertently left Complainant off the list by inputting email recipient names in a piecemeal manner. Moreover, we find it reasonable that S1 would want to inform relevant contractors and employees outside of Washington about the office's operating status.
We find that Complainant did not prove that the Agency's nondiscriminatory explanations are pretext for unlawful discrimination. Therefore, we affirm the Agency's finding that Complainant did not prove she was subjected to reprisal.
Office of General Counsel's (OGC) involvement in the EEO Investigation
Complainant contends that the Agency's OGC improperly injected itself into the EEO investigation by providing legal counsel and representation to S1 and other witnesses during the investigation. We note that the EEO Counselor reported that S1 was interviewed with "his representative" from OGC. ROI, pp. 15, 17. Further, in his affidavit response, S1 stated that OGC assisted and contributed to the preparation of his affidavit, ROI, p. 168. Additionally, the SHRS and the Director stated that OGC also assisted them in preparing their affidavit responses for this investigation. ROI, pp. 199, 214.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 1 � IV.D (Aug. 5, 2015) provides, in relevant part:
Heads of agencies must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency determinations as to whether discrimination has occurred and defending the agency against claims of employment discrimination. Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.
Ensuring a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.
There must be a firewall between the EEO function and the agency's defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency's process for determining whether discrimination has occurred and, if such discrimination did occur, for remedying it at the earliest stage possible.
Accordingly, we have held that after the EEO process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency's Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), request for reconsideration denied, EEOC Request No. 0520140438 (June 4, 2015). However, during the informal counseling stage and the investigation into the accepted issues of the complaint, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator. Id.
We note that in Rucker v. Department of the Treasury, EEOC Appeal No. 0120082225 (February 4, 2011), request for reconsideration denied, EEOC Request No. 0520110343 (April 26, 2011), the complainant claimed that the agency's Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management affidavits before submission to the EEO investigator. The Commission advised the agency that "it should be careful to avoid even the appearance that it is interfering with the EEO process."
In this case, Agency counsel clearly assisted Agency witnesses with their affidavit responses during the investigation before they submitted responses to the investigator. Further, OGC accompanied S1 to an investigative interview and indicated that it was acting as his representative. The Agency maintains that it is permissible to have OGC represent and assist management officials before the hearing stage because the Agency is liable for the actions of its supervisors and managers. However, in Rucker, we held that agency counsel could not prepare or review witness statements even when the statements were made by management officials. As such, the prohibition on defense counsel's intrusion into the EEO process before the hearing stage does not depend upon the status of the witnesses. Therefore, we find that Agency counsel impermissibly interfered with the EEO investigation. See Josefina L. v. Social Security Administration, EEOC Appeal No. 0120161760 (July 10, 2018) (Commission found Agency impermissibly interfered with the EEO investigation where its OGC reviewed Complainant's draft affidavit responses and provided him with feedback about his responses before he submitted them to the investigator).
Sanction
In Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (Sep. 25, 2009), the Commission held that it "has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." In appropriate circumstances, sanctions are used by the Commission to protect the EEO process.
We note that the Commission uses sanctions to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U. S. Postal Serv., EEOC 07A30133 (June 16, 2005). Moreover, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) (the effect on the integrity of the EEO process, and protecting that process, is of "paramount" importance to the "Commission's ability to carry out its charge of eradicating discrimination in the federal sector").
In this case, we determine that OGC's actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency's defensive functions. Further, the fact that OGC reviewed multiple employees' witness statements indicates that the Agency has a practice of subjecting witness statements to OGC review during the investigation. Additionally, we find the Agency OGC's involvement in the informal stage to be an extraordinarily bold and egregious intrusion into the early stages of the EEO process. Thus, we find that sanctions are appropriate in this case.
In Tammy S. v. Dep't of Defense, supra, and in Josefina F. v. Social Security Administration, supra, we held that OGC's encroachment into the investigative stage warranted the sanction of ordering EEO managers and OGC personnel to undergo training on the proper role of OGC in the EEO process. We find that this sanction is also appropriate for this case. In so finding, we determine that OGC's actions did not impact the investigation or ultimate determination of Complainant's case to such an extent that a more severe sanction is warranted beyond training.
CONCLUSION
Accordingly, 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 decision. However, we find that Agency counsel impermissibly encroached upon the investigative stage of the EEO process. Therefore, we REMAND this matter to the Agency for actions consistent with this decision and the ORDER set forth below.
ORDER
The Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision is issued:
The Agency shall provide at least four (4) hours of in-person training to its EEO management officials and personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of the Office of General Counsel in the EEO process.
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).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and �1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 10, 2018
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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