0120142456
09-08-2016
Floyd C.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Commissary Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Floyd C.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120142456
Hearing No. 551201400060X
Agency No. DECA002402012
DECISION
Complainant appealed the Agency's June 13, 2014, final order concerning his equal employment opportunity ("EEO") complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Commissary Contractor Monitor (GS-06), or Quality Assurance Evaluator ("QAE"), at the Agency's Kodiak Commissary ("the Commissary") on the United States Coast Guard base in Kodiak, Alaska.
On May 26, 2012, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment and a hostile work environment on the bases of race (Indian/Asian), national origin (India) and color (Brown) when:
1. For over a year, his second level supervisor, the Commissary Officer/Store Director (GS-11) ("S2"), required him to leave through the back door at the end of his shift;
2. Since April 2010, S2 refused to provide him with access to the Agency's Interim Business System ("DIBS");
3. From April 2010 through September 11, 2012, Complainant was denied a half hour lunch break during his shift from 3:30 PM to 12:00 AM;
4. On March 27, 2011, S2 prevented him from establishing 52 weeks of time in grade by causing his career ladder promotion from GS-5 to GS-6 to became effective three weeks early, which harmed his eligibility for promotion and hiring;
5. On August 31, 2012, S2 told him to go to the third floor and cut the lights out every day, even though that is outside the Agency's jurisdiction;
6. On September 11, 2012, he was not allowed to use his office desk to complete his paperwork because his first level supervisor, the Grocery Department Manager (GS-08) ("S1") instructed him to stay on the floor with the contractor at all times until midnight;
On July 31, 2013, the Agency granted Complainant's request to amend his complaint to include the following claims, which allege reprisal for engaging in protected EEO activity (filing the instant complaint) in addition to his initial bases for the alleged discrimination:
7. On December 12, 2012, S2 issued him a letter of reprimand ("LOR") for failing to check a refrigeration alarm on May 23, 2012, resulting in a significant loss of product;
8. On December 27, 2012, S1 directed him to push a loaded U-Boat Cart to the loading ramp, he refused, explaining that the cart is the contractor's responsibility, and the resulting argument with S1 caused him to suffer a mild heart attack;
9. In January 2013, Complainant informed S2 that he completed mandatory training, but could not print out the certificates of completion, as a result Complainant had to take the training again;
10. On or about April 29, 2013, S2 accused him of leaving a Fire Exit door wide open subjecting the Commissary to theft; and
11. On or about May 2, 2013, Complainant learned that S2 trained her assistant to perform a portion of his duties, which would have granted him access to the Wide Area Work Flow ("WAWF") system, and by doing so, S2 placed Complainant at a professional disadvantage, denying him the opportunity to become more efficient at his job.
In April 2010, Complainant began working as a Quality Assurance Evaluator ("QAE"), which is also referred to in the record as a Commissary Contractor Monitor. The QAE's primary function was to monitor, evaluate, and report on contractor performance. Among other things, Complainant would observe, with minimal interaction, as contractors performed stock and custodial services in both the warehouse and commissary. He would start his shift at the warehouse from 4:00 PM (initially 3:30 PM), until it closed. Complainant spent the remainder of his shift (from 6:00 PM to midnight) at the Commissary, located less than a mile away. Complainant was the last employee to leave the Commissary, so he was responsible for closeout tasks, such as turning off lights, and ensuring all exits were secure. We note that these responsibilities overlapped with those of the Commissary managers, who were responsible for closing the Commissary when Complainant was off. Also, like Complainant, Commissary managers were responsible for ensuring the safety and security of government property. In addition to QAE, Complainant acted as the "Commissary Manager's representative" once his second level supervisor ("S2") left for the evening.
In December 2011, Complainant's first line supervisor ("S1") began working as Grocery Department Manager, responsible for the Commissary's daily operations. While Complainant got along with S1's predecessor and the Store Supervisor, he had a contentious relationship with S1. Complainant believed that S1 micromanaged him and failed to appreciate that his role as QAE involved observing contractors rather than doing their jobs for them. Both S1 and Complainant answered to S2, and Complainant complained to S2 that S1 was constantly "yelling" at him. S2 counseled S1 to speak in a softer tone, but Complainant alleges S1 continued to "harass" him. The antagonism came to a head in December 2012 when Complainant engaged in a verbal altercation with S1 that caused him so much stress that it aggravated a preexisting heart condition. He told S2 his symptoms and she called an ambulance. Although S2 states in the record that she convened a meeting with S1 and Complainant the next day to work out their differences, Complainant asserts he was still in the hospital. S2's date books were taken from her desk, so there is no evidence that she promptly and effectively dealt with the conflict between Complainant and S2.
Complainant alleges that S2 also harassed him by making it difficult to do his job. As the Store Director/Commissary Officer, Complainant's second level supervisor, S2, was in charge of safety and running the Commissary. S2 directed Complainant on how to carry out his QAE responsibilities. The instant complaint, along with a number of emails in the record, demonstrate a difference in opinion between Complainant and S2 on the scope of the QAE's responsibilities. However, several of the claims stand out in that they all allege that S2 denied Complainant access to secured property relevant to his position as QAE. For instance, S2 decided change all of the Commissary and warehouse locks, due to past theft and discovering that a warehouse door had been tampered with. S2 was aware that Complainant's predecessor gave a contractor swipe cards to use the warehouse and did not know how many past employees still had a key to the warehouse or Commissary. Although Complainant closed the Commissary five out of seven nights per week, S2 only provided the new keys to herself and the two managers who opened and closed the Commissary. S2 instructed Complainant to leave out a back door at the end of his shift, as it would lock behind him. Complainant was the only employee required to leave through the back door. S2 also withheld access to Agency to technology that would have allowed him to complete his assignments much more efficiently; and provided her assistant (GS-4) ("SA") with rights to a program that Complainant required in order to process contractor payments. Rather than provide Complainant with training to access the program, S2 informed Complainant that SA would carry out this function of his position going forward.
Over the course of approximately a year and a half, S2 disregarded Complainant's requests for access to software pertinent to his work and dismissed his safety concerns about leaving through the back door at midnight every night. Complainant then informed his third level supervisor, the Commissary Management Specialist (GS-14) ("S3"), who oversaw all of the Agency's commissaries in Washington State and Alaska, during one of her quarterly site visits. S3 promptly intervened on Complainant's behalf and directed S2 provide him with a key to the Commissary and access to at least one of the software programs.
S1, S2, and S3, as well as the Store Supervisor, previous Grocery Department Manager, and SA all identified their race and color as white, national origin as the United States, and had not engaged in prior EEO activity.
After the EEO investigation of Complainant's entire Complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. In accordance with 29 C.F.R. � 1614.110(b), the AJ dismissed Complainant's complaint and remanded it back to the Agency for a final decision. The Agency dismissed the complaint, finding that Complainant was unable to prove that the Agency discriminated against him as alleged.
ANALYSIS AND FINDINGS
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). 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." See EEOC Management Directive 110, 9-16 (Aug. 5, 2015).
Claims 1 through 6: Hostile Work Environment/Harassment
To establish a claim of hostile work environment, Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 his or 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. 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 a protected basis -- in this case, because of race, national origin, and (for claims 7 through 11) reprisal for engaging in protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
Claim 1
Claim 1 alleges that Complainant was the only employee required to leave the building through the back door at the end of his shift. S2 explains in the record that she changed the locks of both the Commissary and the warehouse after evidence of possible theft. She only provided copies of the new keys to herself and two managers (both white). The reason Complainant was instructed to leave through the back door because he was the last to leave the building and it would lock behind him. Complainant described the arrangement as "embarrassing and scary" because people asked him why he was the only employee required to leave through the back door and because he saw bears looking for food in the nearby garbage dumpsters. About a year later, Complainant told S3 during an on-site visit, that he would be racially profiled if the police saw him leaving the building at midnight. We note that S2 told Complainant she alerted the military police to expect to see Complainant leaving the building but when S3 informed her of Complainant's concerns, S2 apologized to Complainant for not considering the possibility of racial profiling. At S3's direction, S2 provided Complainant with a key to the Commissary.
While we are dubious of S2's professed lack of awareness of the potential safety hazards Complainant faced leaving through the back door of the building at midnight. We find no evidence in the record linking S1's initial decision not to provide Complainant with a key to his race, national origin. Considered with the remainder of Complainant's claims, Claim 1 does not state a claim of hostile work environment.
Claim 2
In Claim 2, Complainant alleges S2 denied him access to DIBS, software used to track inventory, including price, relevant dates for determining expiration, and skew numbers used by contractors. When Complainant began working at the Commissary, S2's previous assistant granted him access to DIBS. Complainant's password expired from lack of use. However, he realized DIBS would make him much more efficient tracking inventory, so he requested access from S2. On multiple occasions, S2 refused to provide Complainant access to DIBS stating he "didn't need it." Over a year later, Complainant informed S3 during a site visit, and she directed S2 to provide Complainant with access to DIBS. Additionally, neither S1 nor S2 informed Complainant about the "pricer," a device that scanned inventory and provided its price. A store clerk showed Complainant how to use it, and by the clerks had been using it for a year. Complainant's productivity and efficiency improved once he could access DIBS and the pricer.
We find that S2 acted within her authority when she chose to deny Complainant access to DIBS; and although her rationale for denying him tools that would make him efficient at his work is unclear, we see no evidence that her action was motivated by discrimination. Further, we do not find the alleged action sufficiently severe or pervasive to warrant a finding of harassment. S2's contention that "he didn't need it" is supported by the record because Complainant performed all of the functions of his job (albeit less efficiently) without access to DIBS or the pricer.
Claims 3 and 4
The Agency determined that Claims 3 and 4, which concerned Complainant's lunch break and early promotion, were attributable to human error not discriminatory motivation. On appeal, Complainant asserts, without providing supporting evidence, that Claims 3 and 4 describe "intentional acts of management." Even if Complainant could demonstrate discriminatory intent, we find that he failed to establish the requisite hostility to cause a hostile work environment.
With regard to Claim 3, Complainant alleges that the previous Grocery Department Manager (S1's predecessor) allowed him and the previous QAE to take a regular break from 5:30 PM, when the warehouse closed, to 6:00 PM, which is when Complainant reported to the Commissary. This break was eliminated and Complainant was forced go without a lunch break when S2 changed the warehouse closing time to 5:50 PM. The record does not support Complainant's assertion that the change in closing time was pretext to harass him, as there is no evidence that S2 knew when Complainant took his lunch break. Moreover, S1 did not affect a "term or condition" of Complainant's employment, but rather an informal agreement Complainant established with prior employee. Unlike Complainant, most Commissary employees did not have a set time for lunch. The Store Manager (GS-09) who supervises a number of front-end employees, and was Complainant's interim first level supervisor before S1 arrived provided that "to [her] knowledge we [including Complainant] all just grab our lunches when time permits." S2 erred by assigning Complainant with the same schedule as the previous QAE without considering the unpaid half hour for lunch when she changed the warehouse closing time. 2 When Complainant notified S2 that he no longer had a lunch break, she and S1 met with him and he accepted an offer to change his start time to 4:00 PM instead of 3:30 PM and take a "working lunch" with twenty minutes for breaks.
In Claim 4, Complainant argues that S2 intentionally caused his career ladder step increase from GS-05 to GS-06 to become effective three weeks early, which he believed disqualified him for federal employment opportunities requiring 52 weeks of time "in-grade." We agree with the Agency's finding that it was the Defense Logistics Agency ("DLA") which was responsible for processing promotions, rather than S2, that caused Complainant's promotion to become effective three weeks early. The record indicates that S2 submitted the grade increase on March 17, 2011 with an effective date of April 25, 2011, which would have given Complainant a full 52 weeks at GS-05. Regardless, the record supports the Agency's finding that the alleged discriminatory act did not affect a term or condition of Complainant's employment. Shortly after the promotion, in response to Complainant's concerns, Human Resources informed him that there was no indication that he would be disqualified from the 52 week "in-grade" requirement based on an early step increase. We are not convinced by Complainant's argument on appeal, as he simply repeats his allegation that the early promotion was intentional and alleges that he was not selected for (unspecified) federal positions he applied for as a result without providing evidence to support his claims.
Claims 5 and 6
Complainant alleges that the Agency used safety precautions associated with the layout of the Commissary as pretext for the alleged actions in Claims 5 and 6, which concern S2's instruction that he turn off the mezzanine lights at the end of his shift and S1's instruction for him to stay on the sales floor while contractors were stocking shelves. The Commissary is U shaped and located on the ground floor of a five story office building shared by other retail venues and offices. The U wraps around an atrium area open to mezzanines above, which provide common lighting for the area immediately outside the Commissary and through the Commissary windows on the interior of the U. The Agency's legitimate nondiscriminatory reason for the alleged discriminatory actions in Claims 5 and 6 is that S2 was acting in furtherance of her duty as Commissary Officer/Store Director to ensure a safe environment and loss prevention. While Complainant successfully demonstrates how S2's instructions made it harder to do his job, as alleged, but fails to establish harassment or show that the Agency's explanation was pretext.
With regard to Claim 5, we are not convinced by Complainant's argument on appeal. Specifically, he asserts that turning off the mezzanine lights is not his responsibility, nor is it within the Agency's jurisdiction because the lights are located on the third floor, and the building cleaning crew, which is unaffiliated with the Agency, has turned out the lights at 10:00 PM or 11:00 PM since he began working at the Agency over two years earlier. We note that Complainant does not challenge S2's rationale for the instruction, that the lack of lighting when the mezzanine lights are turned off poses a safety hazard, and base policy requires all lights in the building to be turned off when it is unoccupied. Moreover, although he may have felt singled out, the record supports that Commissary employees are tasked with turning lights on and off by virtue of whether they are the first to arrive or last to leave the premises. On Complainant's nights off, the last manager to leave (white, national origin United States) was also required to turn off the mezzanine lights.
In Claim 6, due to past instances of theft and tampering with exit doors, S2 wanted to ensure that Complainant could view the entire store while the contractor was working. At S2's direction, S1 informed Complainant that he must be on the sales floor and monitor the contractor at all times for security purposes. Complainant already spent the majority of his time on the sales floor when working in the Commissary; but he also required time to complete paperwork, which he did at his desk. He spent less than an hour each shift on paperwork, but the view of the store was limited from that area and according to S2, Complainant's desk was also far enough away from some of the exits that he would not be able to hear local alarms if the door opened. Complainant establishes that the paperwork was crucial to his QAE duties, and that waiting until the contractor left, per S1 and S2's instructions, to do it would conflict with his close out duties at the end of his shift, restricting his ability to properly complete his assignments. However, Complainant does not dispute that his highest priority a QAE is not paperwork, but to monitor contractors. Complainant fails to establish harassment.
On appeal, Complainant argues that the Agency evinced a discriminatory motive in both Claims 5 and 6 because S2 took actions to resolve his concerns shortly after he filed the instant complaint. Specifically, S2 asked the building's cleaning staff resume turning the mezzanine lights off, and obtained permission for Complainant to use a centrally located desk so he could monitor contractors as while he completed his paperwork. We see no indication of discriminatory motive or harassment based on this assertion.
Claims 7 through 10: Retaliation and Harassment
A complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment.
Claim 7
In Claim 7, Complainant correctly notes that the timing of the alleged discriminatory act, a Letter of Reprimand ("LOR"), gives rise to an inference of reprisal; as it was issued three months after he contacted an EEO Counselor about the instant complaint and based on an incident that occurred over six months before. However, he fails to establish that S2, as the identified RMO in this claim, knew that he engaged in protected activity when she issued the LOR. The witnesses interviewed, including S1 and S2, stated that they did not become aware of Complainant's protected activity until they were contacted about the EEO investigation, a month after the LOR was issued. Moreover, the record reveals that S2 was pursuing disciplinary action before Complainant engaged in protected activity. S2 reached out to both Human Resources and the Employee and Labor Relations Specialist in the Agency's Hawaii Field Office for guidance. Accordingly, the LOR was not issued as reprisal for Complainant's protected activity.
Alternately, Complainant argues that as a personnel action, the LOR was discriminatory act in itself, and when considered with his other claims constitutes harassment on his initial bases of discrimination. The LOR alleged that Complainant "failed to follow proper procedures relative to the periodic inspection and correcting of high temperature coolers throughout the Commissary, thereby, contributing to a significant loss [$13,000 in product] to the Agency." That day, S2's assistant ("SA") informed him that mechanics were working on freezer display cases that day, causing the alarm to go off many times, and advised him to disregard it. Complainant argues that S1 and SA, who were both outside his protected classes, were also present when the alarm went off and were not issued LORs.
Again, Complainant successfully raises an inference of discrimination. However, we find this is negated by Agency's legitimate nondiscriminatory reasons for its actions; namely that preventing such damage was within the scope of Complainant's responsibilities and that the LOR was a reasonable disciplinary response. In an affidavit, the Labor Relations Specialist (Asian, brown, National Origin United States, no prior EEO Activity), who never met Complainant and was unaware of his bases in this complaint, recommended that S2 issue a LOR as the lowest penalty they believed would correct Complainant's behavior and maintain discipline and morale among other employees. He provided more severe disciplinary options, but S2 acted on his recommendation and issued the LOR. Further, Complainant does not dispute that he was the last person to leave the Commissary that evening, and that he was aware the alarm went off.
Claim 8
Claim 8 references an incident where S1 and Complainant were in the warehouse and S1 ordered him to push a cart full of items to stock to a truck. A contractor had loaded the cart and was still working. Complainant explained to S1 that moving the cart was the contractor's responsibility believing S1 was again failing to acknowledge his position, which required minimal interference with the contractors. S1 responded, "if I can push so can you." She was concerned because they were running late closing the warehouse, and the daytime Commissary manager needed to be relieved. The conflict escalated into a shouting match, causing Complainant so much stress that his blood pressure rose, impacting his heart condition (which to that point neither S1 nor S2 was aware of) so he had to go to the hospital.
Based on the record, we find this claim is an isolated incident, as it is the only claim that names S1 as the alleged harasser. Commission has repeatedly found that claims of a few 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 & Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995).
Claims 9 and 10
The alleged discriminatory acts in Claims 9 and 10, which concerned mandatory training and questioning as part of a security breach investigation, occurred after S1 and S2 had knowledge of Complainant's protected activity. However, neither claim describes conduct so harmful to Complainant to rise to the adverse action necessary for a reprisal claim. Likewise, even when considered alongside his other claims, the alleged discriminatory acts in Claims 9 and 10 do not describe conduct so severe or so pervasive to cause a hostile work environment. Assuming arguendo that Complainant could establish retaliation and harassment in Claims 9 and 10, he failed to show that the Agency's legitimate nondiscriminatory reasons were pretext for retaliation or a discriminatory motive.
In Claim 9 Complainant was at most inconvenienced when he was required to take mandatory Combat Trafficking and Privacy Act training. The Agency explained that the required certificates of completion for the training were not in Complainant's file. Two other employees (both white, national origin United States, no prior EEO activity) also had to re-take the training due to missing certificates. Complainant provided an email in the record that referenced his completion of the training, but he acknowledges that he did not print the certificate due to a printer malfunction.
In Claim 10 a Fire Exit door had been tampered with from the outside and left open. According to the record, Complainant was not reprimanded or blamed for the incident. As part of an investigation, police interviewed Complainant because he was the last employee to leave the Commissary before this security breach was discovered. Complainant did not provide any evidence to support his insinuation that management was trying to frame him or make him look bad by leaving the door open.
Claim 11
In Claim 11, Complainant alleges that S2 transferred his responsibility to process DD 250s, (the form for contractors to obtain payment), without any discussion, to her assistant, SA. Complainant had manually processed DD 250s for the past two years. Complainant's 2012 Performance Plan cites processing DD 250s among his responsibilities, on which he will be assessed. The Contract Monitor/QAE position description provided by the Agency expressly lists processing DD 250s as a "critical" responsibility of that role. Processing DD 250s was not merely a periphery responsibility, as they kept Complainant up to date on the status of all contracts, attendance, and payments of the individuals he was responsible for monitoring. He alleges that S2 simply chooses not to provide him with training to qualify him for access the eDERMAS and WAWF software, which is now used to process the DD 250s.
Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass Complainant on the basis of any of his protected classes, such common workplace occurrences are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014) (quoting Wolf v. United States Postal Service, EEOC Appeal No. 01961559 (July 24, 1998)). We find the described action, while frustrating for Complainant, constitutes a common workplace occurrence; namely S1's use of her authority to authorize access to Agency software and allocate tasks among her subordinates.
Considering all of the above claims together, we find that the record contains insufficient evidence to show how the alleged actions were linked to his race and national origin or to overcome the Agency's proffered legitimate nondiscriminatory reasons for its actions. As such, we find Complainant unable to establish that he was harassed as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 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. The requests 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 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
September 8, 2016
__________________
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.
2 Complainant's allegation that he "worked for eight and a half hours but was paid for eight" and the discrepancies in the record regarding when S2 learned of the scheduling error and when she implemented the change from 3:30 PM to 4:00 PM are beyond the purview of this office; but may be properly addressed with the Wage and Hour Division in the U.S. Department of Labor.
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