Azucena A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120180901 (E.E.O.C. Aug. 29, 2019)

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

Azucena A.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120180901

Hearing No. 560-2015-00217X

Agency No. ARSILL14SEP03179

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 11,
2017 final order concerning an equal employment opportunity (EEO) complaint claiming
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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Social Worker, YA-0185-02 (equivalent to
a GS-11 position under a previous personnel system) at the Agency’s Department of Behavioral
Health, and Complainant worked as a Social Worker, GS-12, at the Department of Family
Practice.2 Both departments were located at Reynolds Army Community Hospital in Fort Sill,
Oklahoma.

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.

2 On August 15, 2011, Complainant began employment at the Agency’s Department of
Behavioral Health. On August 26, 2012, Complainant began employment at the Agency’s
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On October 14, 2014, Complainant filed a formal EEO complaint. Complainant claimed that
since August 2011, the Agency failed to reasonably accommodate her disability and subjected
her to harassment based on disability and in reprisal for prior protected EEO activity.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
or request a final decision within thirty days of receipt of the correspondence. Complainant
timely requested a hearing.

The AJ held a hearing on April 24-25, 2017. The AJ heard testimony from twelve witnesses
including Complainant. In a decision dated November 21, 2017, the AJ found no discrimination.

On December 11, 2017, the Agency issued a final order adopting the AJ’s decision finding no
discrimination.

The instant appeal followed. On appeal, Complainant argues, through counsel, that the Agency
failed to engage in the interactive process and failed to train management on Executive Order
13164. Complainant further argues that Agency failed to provide her with a reasonable
accommodation. Complainant further argues that, despite the AJ’s determinations, her testimony
was consistent and credible.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Department of Family Practice. Consequently, Complainant had several supervisors from 2011
through 2015.
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Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable accommodation
to the known physical and mental limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o)
and (p).

To establish that she was denied a reasonable accommodation, Complainant must show that: (1)
she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified”
individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to
provide her with a reasonable accommodation. See EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a
disability is an individual who can perform the essential functions of the position with or without
an accommodation.

We find that the AJ properly determined that Complainant has not shown that the Agency
violated the Rehabilitation Act.

A copy of Complainant’s Office of Workers’ Compensation Program (“OWCP”) CA-2 form
indicates that she sustained a work-related injury on August 24, 2011, and first reported this
injury to management on September 1, 2011. Complainant explained on the form that her work
station configuration caused her arm to be in an “awkward position to type” and this positioning
caused pain and burning in her right little and ring finger and palm of her hand as well as pain
under her forearm, elbow, upper arm, and shoulder. Complainant further explained that she
informed an acting non-commissioned Officer (“NCOCI) in charge about being “very
uncomfortable” with her workstation setup and the NCOCI assisted with providing Complainant
with an articulating arm for her keyboard and mouse on September 2, 2011.

The CA-2 form and Complainant’s statements in her affidavit, indicate that management
requested an ergonomic evaluation on September 6, 2011. The evaluation was initially
scheduled for September 28, 2011, but ultimately rescheduled earlier for September 22, 2011, at
Complainant’s request. Complainant further explained in her affidavit that at the time of her
ergonomic evaluation request, she presented management with a list of ergonomic items she
believed she needed because she did not have medical documentation.

A September 16, 2011 emergency visit report indicates that Complainant was diagnosed with
upper extremity pain and osteoarthritis in her right shoulder. The report indicates that
Complainant was given over-the-counter anti-inflammatory medicines, instructed to use a right
arm sling with splint over the weekend, and was instructed to consult with her primary care
provider. The report did not indicate any temporary or permanent restrictions.

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On September 22, 2011, Complainant had an ergonomic evaluation. The evaluation report states
that Complainant complained of “sharp right shoulder and upper arm pain, palm of hand burning
and ache on her right side of her back.” The report further states that Occupational Health
Nurse (“OHN”) replaced Complainant’s chair with a chair which “was more adjustable and had a
stable seat pan,” and moved the armrest out of the way to prevent Complainant’s elbow from
hitting it and to prevent Complainant from holding her arm in an awkward position. The OHN
also rearranged Complainant’s desk, lowered her keyboard and monitor to prevent neck strain,
and the OHN recommended a roller ball mouse, a phone headset, a footrest, a gel wrist rest, and
a document holder attached to the top of her monitor. The OHN also indicated that Complainant
would be moving to a new building in October 2011, which had new modular furniture. The
record reflects that management issued a memorandum of justification for funding necessary to
implement the recommendations of the September 22, 2011 ergonomic assessment. However,
Complainant testified that the ergonomic evaluation failed to alleviate all of her issues.

A September 23, 2011 physician report indicates that Complainant had “right wrist and arm pain
– carpal tunnel syndrome.” The physician prescribed pain medication, wrist support and splint.
The physician indicated that Complainant “needs better working conditions [and] ergonomically
designed office equipment.”

However, a September 27, 2011 physical therapy evaluation indicates Complainant only
experienced pain while working at her desk and she has no pain over the weekends. The
evaluation further states that Complainant:

ambulated into the clinic demonstrating normal arm swing but no difficulty
carrying her purse and notebook. . . . [Her] sitting and standing posture is within
normal limits. . . . [Complainant] demonstrates low severity and irritability of
symptoms which seem to be exacerbated with poor ergonomic set up of her work
station and chair. [Complainant] has some weakness in the right Upper extremity
proximal to the shoulder musculature. Otherwise, [Complainant] does not
demonstrate any neurologic findings consistent with any neurologic irritation.
[Complainant’s] prognosis for physical therapy is good.

On January 26, 2012, the OHN conducted a second, follow-up ergonomic evaluation on the all of
the new equipment Complainant was using. The OHN provided Complainant suggestions on
how to re-train the Dragon Speak software and suggested that Complainant use a contour mouse-
roller-ball. The OHN made adjustments to Complainant’s assistive equipment. Specifically, the
OHN removed the tablet from the keyboard tray and placed it on the desk top and returned the
keyboard to the keyboard tray. However, Complainant explained that she disagreed with these
adjustments because she believed that the desk was too high for her chair and typing on top of
the desk “not only put [her] forearms stretched out but lifted [her] shoulders to an uncomfortable
position.”

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The record includes several physician and therapy visit reports from 2011 through 2012
indicating that Complainant’s diagnosis was inconclusive. The March 20, 2012 EMG test
returned normal and failed to indicate any evidence of ulnar neuropathy and consequently, the
physician indicated that Complainant “appear[ed]” to have “golfer’s elbow or right medical
epicondylitis.” A physician indicated in a July 30, 2012 progress note that “[Complainant] poses
a bit of a diagnostic and therapeutic dilemma” and believed that Complainant had
“tendinopathy” which could be confirmed in an MRI. However, the MRI results returned
negative. Occupational therapy evaluations conducted during this period indicate that
Complainant’s physical exam was “unremarkable,” and Complainant was released “without
restrictions.”

Also, in 2012, Complainant’s OWCP Physician recommended that she refrain from using her
right hand for six weeks and recommended an ergonomic alteration of Complainant’s work
place. Complainant explained that the Agency agreed to give her six weeks of leave from work.
However, to be paid, Complainant had to use her accrued leave or take leave without pay.
OWCP refused to pay for Complainant’s leave and determined that the leave request was not
medically necessary. As a result, Complainant did not take the recommended six weeks leave
because OWCP was not willing to pay her salary.

Despite these discrepancies, management officials provided Complainant with several
accommodations after Complainant accepted a position at the Agency’s Department of Family
Practice on August 26, 2012.3 Complainant testified that this department had newer furniture
that was ergonomically designed. Nevertheless, management provided Complainant with a
dictation system, a new chair, new arm for computer, Dragon Speak mics (headset and hand-held
mics), an articulating tray for her keyboard, a left-handed mouse, and adjusted her computer
location, changed the height on her desk and met with AHLTA trainings to develop
macros/templates to decrease Complainant’s amount of typing.

In February 2013, Complainant had therapy treatments through her OWCP case and the OWCP
Physician recommended that Complainant only see 50% of the normal load during the morning
clinic. Testimony from management officials indicate that they complied with the
recommendation and assigned Complainant a reduced workload for several months.

On February 21, 2013, the OHN conducted a third ergonomic evaluation. The OHN repositioned
Complainant’s desk for better access and loaned Complainant a gel wrist rest until one could be
found for her. The OHN also indicated that Complainant’s chair met the ergonomic criteria
because it had “multiple adjustable features with the exception of the short arm rests.” The OHN
recommended that Complainant take “regular mini-breaks” to flex her hands, writs, and arms.

Email correspondence from February 2013 through June 2013 between Complainant and the
Agency indicate that the Agency attempted to solve Complainant’s complaints.

3 Also, in August 2012, the OWCP accepted Complainant’s workers’ compensation claim for
medical payments only.
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On July 1, 2013, the OWCP Physician explained that he believed that Complainant had “a
component of radical collateral ligament tendonitis . . . despite a negative MRI finding.” The
OWCP Physician recommended that Complainant have another “ergonomic workstation
evaluation.” The OWCP Physician also recommended that Complainant undergo a Functional
Capacity Examination (“FCE”) “to determine what, if any, restrictions [Complainant] needs.”

On July 17, 2013, Complainant completed the FCE. The OWCP Physician stated that
Complainant was performing her original job and “[d]espite complaints of pain prior to testing,
[Complainant] worked to maximum capabilities on all test items.” However, the OWCP
Physician indicated that Complainant had decreased hand grip strength, decreased bilateral pinch
strength, and weakness in her right shoulder rotation. The OWCP Physician recommended
another ergonomic assessment and recommended that Complainant should spend 15 minutes for
every hour on the computer resting, stretching, or performing a different activity to allow for a
decrease in symptoms.

On July 23, 2013, Complainant had a fourth ergonomic evaluation conducted by a physical
therapist. The physical therapist indicated that Complainant had several assistive devices
including a wireless keyboard for easy mobility and adjustments, a wireless contour mouse,
adjustable keyboard tray that can maneuver up, down, in and out, and tilt, an adjustable chair and
adjustable monitor arm, and a transcription service to reduce time performing documentation.
The physical therapist discussed with Complainant the appropriate adjustments to her equipment.
The physical therapist recommended that Complainant use a cushion under her right arm, and
ergonomic for under her chair to decrease lower extremity and low back strain while standing
and recommended that she also take a 15-minute break for every hour worked.

On February 4, 2014, Complainant submitted a formal request for reasonable accommodation,
which management approved. Complainant stated that she had right arm-medical epicondylitis,
ulnar collateral ligament strain, and radial collateral ligament strain and required help with
resting her arm and using her right hand at the computer. Complainant further indicated that she
required a chair set-up that supports her wrist, an alternative to typing that is more reliable than
dragon medical, and way to rest her and use her right arm and ankle greater than 90 degrees.
Complainant also requested an alternative work schedule, assistive devices, computer and
software equipment, furniture, materials in alternative formats, a reconfigured work space, and
removal of an architectural barrier.

By email dated April 11, 2014, Human Resources indicated that it was waiting on a chair ordered
for another employee to arrive within the next three weeks. Human Resources further explained
that if Complainant liked the chair, then another chair would be ordered for her.

On June 2, 2014, Complainant submitted a second formal request for reasonable accommodation
which was approved by management and was memorialized in a memorandum of understanding
(“MOU”) signed by Complainant on July 1, 2014.
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The MOU states that Complainant has had “several ergonomic evaluations and
accommodations” but is still having issues meeting her workload requirements. The MOU also
states that Complainant would be “given a 68W medic to help with typing, dictation, and patient
care duties.” The MOU indicates that Complainant would train soldiers for two weeks and not
have any patients scheduled during this period; Complainant was given a modified work
schedule for four two-week periods; Complainant would be assessed on her work performance at
the end of each period; and Complainant would be able to provide “substantive feedback” to
management at the end of each period.

July 2014 emails indicate that Human Resources was in communication with Complainant
regarding the status of her equipment order and her OWCP case.

In September 2014, Complainant had a fifth ergonomic assessment conducted by the Army
Institute of Public Health which recommended that Complainant take 10 or 15-minute breaks for
every hour worked, limit her typing by using the Dragon speak software, and the assessment
recommended that Complainant could use assistive equipment previously recommended.

Our review of the record supports a finding that the Agency engaged in the interactive process4
and provided Complainant with reasonable accommodations even when the medical records
failed to indicate that Complainant had a diagnosis limiting her ability to complete the functions
of her position. As early as September 2011, management granted Complainant’s request for an
ergonomic evaluation, accepted the recommendations from the September 22, 2011 ergonomic
evaluation, and approved funding for the recommended assistive equipment. The record
indicates that the Agency continued to provide Complainant with assistive equipment after she
accepted another Social Worker position with the Agency located in a different department in
August 2012. During this period, Complainant’s diagnosis was inconclusive due to negative
EMG and MRI results and Complainant’s occupational therapy notes indicated that she was
released “without restrictions.”

Although the record is clear that Complainant sustained a work-related injury in August 2011
which OWCP accepted, OWCP’s acceptance of Complainant’s worker’s compensation claim
does not render Complainant a qualified individual with a disability under the Rehabilitation Act.
The Commission has recognized that even if an employee with an occupational injury has a
“disability” as defined by a workers’ compensation statute, the employee may not have a
“disability” for Rehabilitation Act purposes.

4 The AJ determined, and we agree, that while management officials testified that they did not
know the specific meaning of the phrase “interactive process,” and testified that they were
unfamiliar with Executive Order 13164 mandating that agencies establish “effective procedures
to facilitate the provision of reasonable accommodation,” the record reflects that the Agency has
a policy for processing reasonable accommodation requests and the AJ found, as we do here, that
the Human Resources Assistant was “trained in how to process the reasonable accommodation
packets and I how to work with employees in the reasonable accommodation process.”
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See Grant v. Dept of the Treasury, EEEOC Appeal No. 01985972 (Aug. 2, 2001) (citing EEOC
Enforcement Guidance on Workers’ Compensation and the ADA at 2 (Sept. 3, 1996).
Nevertheless, the record supports a finding that the Agency complied with the OWCP
Physician’s recommendations by reducing Complainant’s work load, scheduling additional
ergonomic evaluations, and providing her with several assistive devices from 2012 through 2013
without submission of documentation indicating that Complainant had any work restrictions.

Even if we presume, without so finding, that Complainant was a qualified individual with a
disability, the record supports a finding that the Agency approved both of Complainant’s
accommodation requests submitted in 2014. The record supports that Complainant submitted
two reasonable accommodation requests on February 4, 2014, and June 2, 2014, which the
Agency approved. Therefore, there is insufficient evidence to support that the Agency denied or
failed to respond to Complainant’s accommodation requests.

We acknowledge that Complainant testified that she had requested time off but was denied.
However, the evidence reflects that Complainant decided not to take the recommended leave
because OWCP refused to pay for Complainant’s leave. To the extent that Complainant implied
a desire to work from home, we note that although protected individuals are entitled to
reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their
accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(October 17, 2002) (“Guidance”), Question 9. Additionally, management testimony indicated
that working from home full time was not an option because part of Complainant’s position
duties required that she conduct in-person counseling and training with soldiers.

The evidence in the record supports a finding that the Agency never denied Complainant’s
reasonable accommodation requests and the Agency provided Complainant with de facto
accommodations when there was insufficient medical evidence of her limitations. Therefore,
Complainant has not established a violation of the Rehabilitation Act.5

5 Regarding the credibility of Complainant’s testimony, we find that Complainant has not
submitted sufficient evidence to refute the AJ’s determination on the following matters: that
Complainant’s testimony was “incredible,” that she “had no idea” what was wrong with her wrist
despite stating that she had experience in the field of ergonomics; that her testimony was “self-
serving and misleading” when she stated that the Agency provided her with a different chair but
did not buy her a new chair after the first ergonomic assessment; that her testimony was “less
than transparent and distorted” when she initially testified that she did not file a workers
compensations claim and later changed her testimony to state that she filed a workers
compensation claim in October 2011; and that her testimony was “specious and deceptive” when
she stated that she had assumed that the Agency never paid for a new chair she received.

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Harassment

To establish a claim of harassment, Complainant must show that: (1) she is a member of the
statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal
or physical conduct involving the protected class; (3) the harassment complained of was based
on her statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. Humphrey v. U.S. Postal Service, EEOC Appeal No.
01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11 Further, the incidents must have been
“sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and
create an abusive working environment.” Harris, 510 U.S. at 21. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances.
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a
“general civility code.” Id.

Complainant testified that the Office Manager stated, “we don’t baby people here,” “when are
you going to get over this?” and “I can’t cater to you” regarding Complainant’s request for
ergonomic equipment.

Complainant’s co-worker, a Social Worker in the Agency’s Department of Family Practice,
testified that the Office Manager stated in 2012 that Complainant was “needy,” a “problem
child,” and that Complainant needed to “tough it out” with regard to Complainant’s multiple
workstation ergonomic requests. The co-worker further testified that the Office Manager’s
negative sentiments were not shared by Complainant’s supervisors.

Complainant’s supervisor from August 2012 through October 2013, testified that Complainant
informed her that the Office Manager made an “offensive comment” toward Complainant. The
supervisor stated that she verbally counseled the Office Manager and she did not hear any further
complaints from Complainant.

The record also contains copies of Complainant’s performance evaluations occurring after her
2011 work related injury and subsequent ergonomic work place requests. In 2012, Complainant
was rated “successful” on her annual evaluation, received a Civilian Service Award of 20 hours
of leave on July 19, 2012, and was promoted from GS-11 to GS-12. In 2013, Complainant
received the highest possible score on her annual evaluation. In June 2014, Complainant was
given a “special” evaluation because her then supervisor was being deployed with the military
and was required to give Complainant an evaluation even though twelve months had not lapsed
in the rating period.
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Nevertheless, Complainant received the second highest rating and was rated “successful” during
this special rating period. In November 2014, Complainant again received the highest possible
score for her annual evaluation.6 The evaluation further states that

[Complainant] was placed on a memorandum for reasonable accommodations for
a work related injury. She was given extra equipment to help with her daily tasks
and a lightened schedule. She has worked hard to (sic) She has now worked her
way back up to full time. Her reasonable accommodation package is on-going at
this time.

With respect to the 2014 MOU regarding her 2014 reasonable accommodation request,
Complainant testified that she believed that the MOU was retaliatory. The record indicates that
Complainant agreed with the terms and signed the MOU on July 1, 2014. Additionally, the
MOU offers Complainant the opportunity to provide “substantive feedback” at the end of each of
performance period.

We find that considering these allegations, even if true, Complainant has not shown evidence
that considerations of her disability or retaliatory animus motivated management’s actions
toward Complainant. Although testimony supports that the Office Manager made an offensive
remark when she called Complainant “needy” and a “problem child,” Complainant’s co-worker
testified that these sentiments did not extend to Complainant’s supervisors. Additionally, the
record supports that the Office Manager’s comment was an isolated incident. We have held that
claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment
claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995).
Additionally, the record supports that Complainant received high performance ratings after
reporting her work-related injury, making multiple workstation ergonomic requests, and after
filing her informal EEO complaint in August 2014. Further, there is no indication that
Complainant disagreed with the requirements of the 2014 MOU and the MOU provided
Complainant to give feedback at the end of each performance period. We find that these
incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile
work environment/harassment under Commission regulation. The incidents involved are of a
type that typically arise out of workplace conflicts or communications. However, EEO laws are
not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the
conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review
of the record, including Complainant's contentions on appeal, we find that Complainant failed to
demonstrate that the Agency discriminated against her as alleged.

CONCLUSION

We AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination.

6 The record reflects that this evaluation occurred after Complainant filed her informal EEO
complaint with an EEO Counselor in August 2014.
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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 (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.

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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. 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

August 29, 2019
Date