Darrin H.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 15, 2018

0120172734 (E.E.O.C. Nov. 15, 2018)

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

Darrin H.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120172734

Agency No. DON 15-3818A-01223

DECISION

On August 9, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 26, 2017 final decision 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.

BACKGROUND

During the relevant period at issue, Complainant worked as a Program Analyst, GS-0343-13, at
the Agency’s Logistics and Readiness (N4), US Naval Force Europe (CNE), US Naval Forces
Africa (CAN), Commander Sixth Fleet (C6F), in Naples, Italy.

On April 15, 2015, Complainant filed the instant formal complaint. Complainant claimed that he
was subjected to harassment and a hostile work environment based on national origin (Russian-
American) and in reprisal for prior EEO activity when2:

a. since January 2015, his first and second level supervisors have impeded his ability to
perform the Contracting Office Representative (COR) duties of his position;

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 For ease of reference, the Commission has re-lettered Complainant’s claims as claims a – l.
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b. during January 2015 through March 2015, the first level supervisor gave him conflicting
project timelines, thereby making it difficult to meet deadlines. The supervisor said to
Complainant in January 2015, “I knew you were going to fail” referring to a project,
“Port Visit Report Card,” that Complainant was assigned to complete the first week in
January 2015;

c. on January 13, 2015, the first level supervisor referred to him as “the enemy” because of
his Russian ethnicity in reference to the Russian-Ukraine conflict and previously called
him a “Russian spy;”

d. during January 2015, the first level supervisor walked between cubicles in the N4 office,
including near Complainant’s cubicle, passing gas and burping, and once the first level
supervisor was finished he returned to the office;

e. on January 29, 2015, after his first level supervisor was notified of Complainant’s
complaint (referring to Complainant’s complaint about S1’s use of profanity), S1 said, “I
better not see you putting any money into that jar, after all that has happened;”

f. on February 26, 2015, the first line supervisor bullied, threatened and intimidated him
when he leaned forward, stretched out his arm, pointed directly at Complainant and
Complainant’s co-worker, and yelled at Complainant to get into S1’s office in front of
other employees;

g. on March 30, 2015, after the first level supervisor was moved to another office, the first
level supervisor continued to harass him through emails via Complainant’s second level
supervisor;

h. on April 15, 2015, around 4:10 p.m., in the passageway in front of the elevator lobby on
the first floor of the parking garage at NSA Naples, Capodichino, he was walking with a
co-worker when his first line supervisor, in a physically threatening and bullying manner,
bumped into Complainant’s co-worker pushing him out of the way, and shoulder-swiped
Complainant, and then continued to walk in a fast manner toward the stairwell;

i. on June 8, 2015, he discovered that the database containing the Port Visit Financial
Documents had been wiped clean. Complainant was not notified of the database file
deletion. Complainant claimed that the information was deliberately withheld from him
to prevent him from completing monthly analytical reports. Complainant was the only
person in the office who was not notified of the action and who was not provided the
opportunity to back up data that was necessary for him to complete his work;

j. on June 27, 2015, while in a public forum, Complainant alleged that his second level
supervisor publicly humiliated him by asking Complainant for the fourth time, “Do we
know when Santo’s last day is?” Complainant perceived that the manner his second level
supervisor asked this question was highly unprofessional and aimed at undermining his
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performance before his team. It reflected continued retaliatory behavior directed at
Complainant for reporting a hostile work environment at N4 Logistics Support
Department;

k. on August 25, 2015, the second level supervisor while on the phone, turned up the
volume and openly discussed Complainant’s EEO case for the entire office to hear. The
second level supervisor stated he has already wasted enough time on EEO case and he
does not have time for the EEO investigator; and

l. on October 5, 2015, the Civilian Human Resources (HR) Specialist/Performance
Manager asked Complainant to complete his Interim Performance Management System
(IPMS) closeout for the time period between April 29, 2015, and the end of fiscal year
2015 before his Permanent Change in Station (PSC) when no new performance plan was
initiated, no new performance objectives were established, and no midterm performance
review had been conducted.3

After the investigation of the claims, 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. In accordance with Complainant’s request, the Agency issued a final decision on June
23, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.

3 The record reflects that claims i - l were later amended to the instant formal complaint.
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Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Regarding claim a, Complainant asserted that since January 2015, his first and second level
supervisors have impeded his ability to perform the Contracting Office Representative (COR)
duties of his position.

The Deputy Director of Logistics (unknown national origin, no prior protected activity) stated
that during the relevant period. he was Complainant’s first level supervisor. The supervisor
explained that the position Complainant was hired for was not just to perform the normal COR
duties on behalf of the Contracting Officer. The supervisor stated that Complainant was also
responsible for performing duties for the command (Sixth Fleet).

The supervisor stated that Complainant’s duties “included, not are not limited to providing port
cost data to operational planning teams responsible for making port visit decisions, review of
Logistics Requirement Standard Naval Messages to ensure unit adherence to the Standardized
Logistics Requirements Standard Naval Message format directed by SIXTH Fleet, and review
port visit closing documents (invoices, receipts, customer service reviews. Etc.) to document
inconsistencies in reporting between the unit and the contractor to the contracting officer
[emphasis in its original].”

Further, the supervisor stated that Complainant was also responsible conducting assessments of
how the units were doing (i.e. Sixth Fleet, contractors, Fleet Logistics Center’s Contracting
Officers, and the Naval Supply Systems).

Complainant asserted that he was unable to travel to every Port Visit. The supervisor explained
that Complainant was hired following the Program Objective Memorandums were “done (that is
where we plan out the budget and get money for the fiscal year). That budget had already been
given to us and there was no money in the budget to support the travel. I had asked several times
to the Comptroller to get us some additional monies for that travel and continually received a
response that there was no money in the pot to do this. I do not know if they found additional
monies afterward, but as of February 2015, there was no money for us to do it.”

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The Captain, Supply Corps, and Director, Readiness & Logistics, N41 (unknown national origin,
no prior protected activity) stated that during the relevant period, he was Complainant’s second
level supervisor. The Captain disagreed with Complainant’s claim that the responsibilities he
was given conflicted with the responsibilities he was delegated as a COR.

The Captain explained that the COR has program and reporting responsibilities to the
Commander Sixth Fleet “who has command of the ships, is the ultimate customer (requiring
activity), and owner of the program in this area of responsibility.” In addition, the Captain does
not recall receiving any communication from the FLC Contracting Officer (FLC KO) or a named
Captain “who is on charge of the FLC contracting office, that the work we outlined for
Complainant, conflicted with his duties as a COR. This allegation also ignores that it was
Complainant who initially refused to sign the COR letter issued to him by the FLC KO, and that
it was the Complainant and [co-worker] who took exception to the FLC KO COR appointment
letter.”

Further, the Captain stated that he had Complainant and co-worker prepare a Memorandum for
Record explaining their reservations concerning the COR letter. The Captain said that
Complainant worked on a Memorandum for Record or “a list of concerns about the FLC COR
Appointment with [co-worker] regarding their COR responsibilities, and they eventually met
with the KO. As far as I know, they agreed that the COR Letter was correctly based on
requirements in the Federal Acquisition Regulation (FAR), but that the Complainant and [co-
worker] would do a Memorandum for Record, addressing what they felt were the limitations on
his ability to do COR functions for the contracting officer.” The Captain stated that he was not
sure if Complainant signed the letter because Complainant did not provide a copy to him.
Moreover, the Captain stated he does not know of anything that he told Complainant “to do or
not to do contrary to what was required of him by the FLC, KO, and their PDs [Position
Descriptions].”

Regarding claim b, Complainant alleged that during January 2015 through March 2015, the
supervisor gave him conflicting project timelines making it difficult to meet deadlines and the
supervisor said to Complainant in January 2015, “I knew you were going to fail” referring to a
project, “Port Visit Report Card,” that Complainant was assigned to complete the first week in
January 2015.

The supervisor explained that the Port Visit Report Card was a Standard Nava Message that
provided a cumulative total of documents which were required to be submitted to the Sixth Fleet
wherein it provided percentages of each unit “as to the number of documents turned-in and
timeliness of reporting.” The supervisor stated that this task was assigned to a named employee,
and was not assigned to Complainant. The supervisor stated at that time Complainant was tasked
with production of an assessment on the Husbanding Service Provider (HPS) Oversight
Program.4

4 HPS organizes all port services before a ship goes into port.
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The Captain stated that in regard to Complainant’s allegation that he and the supervisor set up
Complainant and a co-worker “to fail, that is just absolutely untrue. We wanted them to succeed
even if our only interest was in reducing the workload on ourselves. And none of this had
anything to do with their national origin.”

Regarding claim c, Complainant alleged that on January 13, 2015, the supervisor referred to him
as “the enemy” because of his Russian ethnicity in reference to the Russian-Ukraine conflict and
previously called him a “Russian spy.”

The Captain explained that while he was not a party to the subject conversations, he did not hear
the supervisor call Complainant “the enemy” or a “Russian spy.” The Captain stated, however,
he recalled sitting in the supervisor’s office when the supervisor walked in “saying to himself,
but audible to me, ‘[Complainant] is a Russian Spy.’” The Captain further stated that the
supervisor “appeared to me to be half joking/half frustrated. He was obviously not serious, so I
didn’t initiate a security investigation.”

Regarding claim d, Complainant claimed that during January 2015, the supervisor walked
between cubicles in the N4 office, including near Complainant’s cubicle, passing gas and
burping, and once the first level supervisor was finished he returned to the office.

The Logistics Directorate Current Operations Officer (unknown national origin, no prior
protected activity) stated that during the relevant period, she worked in the same office with
Complainant, and that Complainant sat in the cubicle behind her. The Officer stated that she
heard from colleagues in the office that the supervisor frequently passed gas and burped but did
not do it near her.

Regarding claim e, Complainant asserted that on January 29, 2015, after the supervisor was
notified of Complainant’s complaint (referring to Complainant’s complaint about his use of
profanity), the supervisor said, “I better not see you putting any money into that jar, after all that
has happened.”

The Captain acknowledged counseling and issuing a memorandum dated January 20, 2015, to
the supervisor “after a complaint about his language had been brought to my attention – I believe
that very same day.” The Captain stated that he does not recall being at a morning meeting
where the supervisor introduced the swear jar…nor do I recall [supervisor] tell Complainant that
he didn’t want to see Complainant contributing to the jar.”

The Officer stated that the supervisor apologized for the use of profanity during the morning
quarters “to the entire directorate. He was sincere with his words, he promised to watch his
mouth and encouraged all to be reduce their use of profanity. I don’t remember him making the
statement about putting money in the jar.” Regarding claim f, Complainant alleged that on
February 26, 2015, the supervisor bullied, threatened and intimidated him when he leaned
forward, stretched out his arm, pointed directly at Complainant and the co-worker, and yelled at
Complainant to get into his office in front of other employees.
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The Captain acknowledged that the verbal exchange between Complainant and the supervisor
“devolved, but it takes two to tango. I did not observe [supervisor] being physically threatening
or intimidating towards Complainant or [co-worker].” The Captain stated that while
Complainant was taking the position that he needed to talk directly to the FLC KO because the
KO issued the letter, the supervisor’s position was that even through Complainant was going to
be appointed by the FLC KO, the HSP COR program is the responsibility of the Sixth Fleet.

The Captain stated although Complainant would be the COR “upon accepting the appointment
from the KO in the COR appointment letter, Complainant worked for SIXTH Fleet in N41. As
such, [supervisor] was his direct supervisor. It appeared to me that the Complainant was trying
to incite [supervisor] by the nature of his response to him. So, even though it was seemingly a
rather calm discussion at the beginning, Complainant was dismissing [supervisor’s] authority to
stay informed of communications outside the chain of command with regard to the HSP COR
program. And [supervisor] took offense at that [emphasis in its original].”

Further, the Captain acknowledged that the supervisor later “blew up” during the meeting.
Thereafter, the Captain ended the meeting by ordering the supervisor to go to his office and
dismissing the staff. However, the Captain asked Complainant and the co-worker to remain in
the room. The Captain stated that he then sat down with Complainant and co-worker to discuss
the COR letter. Specifically, the Captain stated “I don’t recall if at that time, [Complainant and
co-worker] revealed their specific objections about the COR letter to me. But I believe the
context of that conversation was, that while as CORs they would have a direct relationship with
the KO, they also had to keep their supervisory chain of command informed. They asked if they
could go to either N1 or HRO and I agreed.”

The Captain stated that he then contacted the legal staff, the N1 Captain, two other Captains and
the RDML concerning the incident. The Captain stated that later that day, the RDML reassigned
the supervisor from N41 to N35 in a separate building. The Captain stated that the supervisor
was no longer his Deputy and his supervisory responsibilities for all the employees in N4 had
ended. Furthermore, the Captain stated that [Commander] was later made the N41 Deputy.

Regarding claim g, Complainant alleged that on March 30, 2015, after the supervisor was moved
to another office, the supervisor continued to harass him through emails via the Captain.

The supervisor explained that after he was reassigned, he received several emails that contained
duties that belonged to the N41. The supervisor further stated that there was no one from N41
who was copied on the emails so he forwarded them to the Captain.

Regarding claim h, Complainant alleged that on April 15, 2015, around 4:10 p.m., in the
passageway in front of the elevator lobby on the first floor of the parking garage at NSA Naples,
Capodichino, he was walking with a co-worker when the supervisor, in a physically threatening
and bullying manner, bumped into Complainant’s co-worker pushing him out of the way, and
shoulder-swiped Complainant, and then continued to walk in a fast manner toward the stairwell.
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The supervisor denied assaulting Complainant or the co-worker. Specifically, the supervisor
stated that the area where this alleged incident occurred was a blind corner. The supervisor
stated that he did not realize that Complainant and co-worker “were there until I came upon the
blind corner. I made no contact with his co-worker [Co-worker], and in an effort to avoid
contact with [Complainant], I ducked and performed a pivot around the corner which caused my
shoulder to lower. Contact was unavoidable and we did make a shoulder rub. There was
nothing planned about that…I didn’t stop to talk to them, because I didn’t want another
complaint filed against me.”

Regarding claim i, Complainant claimed that on June 8, 2015, he discovered that the database
containing the Port Visit Financial Documents had been wiped clean. Complainant was not
notified of the database file deletion and he alleged that the information was deliberately
withheld from him to prevent him from completing the monthly analytical reports. Complainant
was the only person in the office who was not notified of the action and was not provided the
opportunity to back up data that was necessary for him to complete his work.

The Officer stated at that time, no files were deleted. Specifically, the Officer stated the reason
Complainant did not have the information “he required to compete the monthly port visit report
card is because he did not do a proper turnover with his counterpart [co-worker] prior to the
complainant going on leave for the month of May. [Co-worker] who was the same grade and
series as the complainant should have collected and created the monthly report card in the
complainant’s absence. In fact [co-worker] reported at the daily morning meeting that he was
working on the monthly report card when in fact he was not.”

Further, the Officer stated that when Complainant returned to work, he had to compile all the
information that was in the Contracting Office Representative group email box and “was readily
available to him. The complainant refused to talk to most personnel in the office. Had he asked
he would have been told exactly what I have relayed here”

With respect to Complainant’s allegation that the database containing the Port Visit Financial
Documents had been wiped clean, the Officer stated that it was not true. The Officer stated that
the fields of data that the Complainant required in order to complete the monthly report card
“were still available and visible. Due to a visit from C6F IG and direction from [Captain] to
segregate MLS proprietary data from public access the sensitive documents were moved to a
secure husbanding folder on the share drive which was set up by N6. When I requested that N6
set up the access restricted folder the complainant was included on the email request.”5

Regarding claim j, Complainant asserted that on June 27, 2015, while in a public forum,
Complainant alleged that the Captain publicly humiliated him by asking Complainant for the
fourth time, “Do we know when [co-worker’s] last day is?” Complainant perceived that the
manner the Captain asked this question was highly unprofessional and aimed at undermining his

5 The C6F IG and MLS abbreviations are not identified in the record.
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performance before his team. It reflected continued retaliatory behavior directed at Complainant
for reporting a hostile work environment at the Logistics Support Department.

The Officer stated that the Captain asked Complainant about his co-worker during a morning
meeting. Specifically, the Officer stated that it was the Agency’s policy that whenever
employees plan to be out of the office during working hours or traveling greater than an hour
away on the weekends that they would put an entry on the Outlook calendar. The Office further
stated that Complainant and the co-worker “rarely complied with this requirement to my
knowledge. I believe that [Captain] asked the complainant was he genuinely did not know but
knew the complainant was friends with [co-worker] and would most likely know. I did not feel
the question was unprofessional. It was unprofessional that the complainant and [co-worker] did
not comply with the policies of the directorate. The Captain would and had asked the same of
anyone else when they weren’t at the morning meeting.”

The new Deputy Director 41 (unknown national origin, no prior protected activity) stated that
during the relevant period, he and the Captain were trying to close out the Total Workforce
Management System (TWMS) for the co-worker. The new Deputy Director stated that the co-
worker’s detaching date moved a couple of time and “I was having a hard time contacting him.
Since the TWMS requires items be done in a certain order we needed [co-worker] to close out
his data in TWMS. [Captain] was trying to ensure the TWMS database was closed for [co-
worker] and not trying to put [Complainant] on the spot.”

Regarding claim k, Complainant alleged that on August 25, 2015, the Captain, while on the
phone, turned up the volume and openly discussed Complainant’s EEO case for the entire office
to hear, and that the Captain stated he has already wasted enough time on EEO case and he does
not have time for the EEO investigator.

The Officer stated that on the day in question, she heard the Captain “with speaker phone on
talking to someone in legal saying he was busy, no details of the case were discussed that I can
remember.”

The new Deputy Director N41 stated that he believed the Captain was having a conversation
with a named Agency official and the Captain “was concerned the EEO would delay his
retirement and wanted to move the process along faster. [Captain] usually [answers] the phone
via speaker phone and was not trying to have the conversation become public.”

Regarding claim l, Complainant alleged that on October 5, 2015, the Civilian Human Resources
(HR) Specialist/Performance Manager asked Complainant to complete his Interim Performance
Management System (IPMS) closeout for the time period between April 29, 2015, and the end of
fiscal year 2015 before his Permanent Change in Station (PSC) when no new performance plan
was initiated, no new performance objectives were established, and no midterm performance
review had been conducted.

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The new Deputy Director explained that he asked Complainant to complete the closeout
assessment even though he was transferred to a different office. The new Deputy Director also
informed Complainant that he has new first and second level supervisors and “the mid-year
review would not be used as input. I would not be assessing the time when I was not the
supervisor. Finally I [informed] [Complainant] that not doing the close out could affect his new
job, because they use the same program Total Workforce Management (TW). If [Complainant]
does not complete the closeout I was not sure his [new job] could open a new IPMS with this
command doing a closeout. [Complainant] did complete the IPMS prior to transferring.”

The new Deputy Director noted that the plan was closeout on April 29, 2015, but the
performance objectives “were still accurate so no changes were made. I did not perform midyear
[counseling] or provide feedback.”

Complainant asserted that the performance objectives of the IPMS which was closed out on
April 29, 2015, had been modified significantly during the course of the year by the Captain but
the revised critical elements were never captured in a new performance plan, and no performance
review was ever conducted during the course of the year. The new Deputy Director stated that
the Captain provided new guidance frequently “but I do not think the critical elements of the
IPMS needed to be changed. The closeout stated [Complainant] performed at the acceptable
level.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory or retaliatory animus.

Hostile Work Environment

With regard to Complainant’s hostile work environment claim, to establish a claim of hostile
environment harassment, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected bases – in this case, his national origin or
prior EEO activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself. Here, Complainant simply has
provided no evidence to support his claim that his treatment was the result of his national origin
or prior EEO activity.
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CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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).

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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

November 15, 2018
Date