Israel J.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.Download PDFEqual Employment Opportunity CommissionMar 22, 20180120160324 (E.E.O.C. Mar. 22, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Israel J.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120160324 Agency No. FBI-2014-00287 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the September 29, 2015 final Agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Management and Program Analyst (MAPA), GS-14, at the Agency’s Foreign Counterintelligence Surveillance Act (FISA) Unit of the Office of General Counsel in Washington, D.C. Complainant entered duty with the Agency in 2004, as an Investigative Specialist. Complainant was promoted several times and progressed to his current GS-14 position. Complainant alleged that he has applied for numerous GS-15 positions over three years, but was not selected for a promotion. Complainant claimed that if the Agency’s 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. 0120160324 2 promotion system was fair, he would have been promoted into one of the GS-15 positions after submitting multiple applications. On August 28, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (50), and in reprisal for prior protected EEO activity when: 1. He did not make the best qualified list for the position of Supervisory MAPA under Vacancy Announcement No. 23-2014-0004, and was subsequently not selected; 2. He did not make the best qualified list for the position of Supervisory MAPA under Vacancy Announcement No. 00-2014-0033, and was subsequently not selected; 3. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 00-2014-0009; 4. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 02-2014-0007; 5. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 00-2014-0037; 6. He was not selected for the position of Supervisory Research Analyst under Vacancy Announcement No. 17-2014-0008; 7. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 17-2014-0015; 8. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 17-2014-0009; 9. He was not selected for the position of Supervisory Research Analyst under Vacancy Announcement No. 17-2014-0020; 10. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 13-2014-0042; 11. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 17-2014-0014; 12. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 13-2014-0046; and 13. He was not selected for the position of Supervisory MAPA under Vacancy Announcement No. 06-2014-0049.2 2 In his formal complaint, Complainant included a claim that the Agency’s promotional practices created a disparate impact on black males. The Agency did not accept disparate impact as a theory of discrimination. On November 24, 2014, Complainant objected to the Agency’s decision to exclude the disparate impact theory of discrimination from investigation. In December 2014, the Agency determined that Complainant’s allegations were properly investigated under a disparate treatment theory of discrimination and informed Complainant that his disparate impact claim would not be investigated. 0120160324 3 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant’s request the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that management had articulated legitimate, nondiscriminatory reasons for Complainant’s non-selections. With regard to the position at issue in claim (1), the Human Resources Specialist (HRS-1) stated that she processed the posting of Vacancy Announcement No. 23-2014-0004. HRS-1 affirmed that the Agency’s computer program generated a numerically-ranked list of candidates for all vacancy announcements, and that she reviewed the top candidates with a score of 90 and above to determine the top 25 best qualified (BQ) candidates. HRS-1 confirmed that she evaluated the top 25 applicants to verify that they possessed the minimal qualifications, but that she did not evaluate candidates to determine whether applicants with a score below 90 should have been moved to the BQ list. HRS-1 asserted that Complainant’s score was lower than 26 other applicants, so he was not included on the BQ list. HRS-1 noted that the Agency subsequently changed the policy of referring only the top 25 names on August 21, 2014, and that now all internal applicants with a score of 90 and above who are minimally qualified are referred to the selecting officials. With respect to the position at issue in claim (2), the Human Resources Specialist (HRS-2) stated that she processed the BQ list for Vacancy Announcement No. 00-2014-0033. HRS-2 explained that the computer program generated a score for each applicant. Complainant scored 97.68, but 25 applicants scored between 97.86 and 100. HRS-2 asserted that only the top 25 applicants were referred to the selecting official at that time; therefore, Complainant’s score disqualified him from the BQ list. HRS-2 noted that she was not permitted to alter the BQ list because she deemed a particular applicant’s qualifications to be superior to those with higher assessment scores. As to the position at issue in claim (3), one of the selecting officials for this position stated that 65 to 70 candidates were on the BQ list. The selecting official affirmed that he reviewed each candidate’s resume and categorized the candidates based on their demonstrated experience and relevant aptitudes. The selecting official confirmed that one of the primary functions of the position would be to lead the Shared Services initiative, so his top criteria were extensive Human Resources/administrative experience, former dealings with staff at the executive level, leadership, team-building capabilities, and communication skills. The selecting official asserted that he interviewed four applicants based on his review of the desired attributes. The selecting official stated Complainant’s resume did not reveal combinations of expertise in the specific areas that he was seeking. Regarding the position at issue in claim (4), a four-person career panel was assembled to review the 120 internal applicants for the position. The panel selected what it considered the top six to ten candidates. The panel was seeking a candidate with an extensive logistical and operations compliance experience, leadership/supervisory experience, and knowledge of policy and compliance issues. The panel discussed each member’s top candidates and ultimately 0120160324 4 interviewed five or six candidates. Complainant was not selected for an interview. The selectee for the position had worked as a Training Division auditor and was therefore very familiar with compliance issues and logistics. With respect to the position at issue in claim (5), the selecting official affirmed that there were about 40 candidates on the BQ list, and she looked for an individual with experience in and a passion for human capital and leadership development. The selecting official said that eight applicants were interviewed. The selecting official stated that Complainant had a training background; however, that background was not as important as leadership, communication strategy or collaboration skills. The selecting official confirmed that the selectee had a Ph.D. in Leadership Education and had formerly run the Leadership Program for the Army Staff College. As to the positions at issue in claims (6) and (9), a panel was convened to make a selection for the internal (claim (6)) and external (claim (9)) vacancy announcements for this position. This position was in the National Name Check Programs Unit. The panel interviewed nine candidates for the position and all nine were GS-14 Supervisors in the National Name Check Program Section. While Complainant had records management experience, the Agency determined that applicants already in the National Name Check Program section had more relevant experience. With regard to the internal and external vacancy announcements at issue in claims (7) and (11) respectively, the selecting official for this position stated that he was looking for an applicant with well-developed management and leadership skills and exposure to electronic recordkeeping. The selecting official confirmed that nine applicants, including Complainant, were interviewed. The selecting official noted that he rated Complainant’s answers to most of the interview questions as “competent,†and rated Complainant only as “marginal†in the category of communication. The selectee was already assigned to the Records Management Application Unit and was familiar with unit mechanics and had supervisory experience. The selecting official added that the selectee demonstrated a high level of competence in leadership and collaboration as well as records expertise in his interview. As to the position at issue in claim (8), the Agency noted that Complainant did not address this vacancy. Regarding the position at issue in claim (10), the Section Chief of the Resource Management Section, Counterterrorism Division, stated that this vacancy announcement was cancelled because of the consolidation of two Executive Staff units. With regard to the position at issue in claim (12), the selecting officials interviewed six candidates for this position. One of the selecting officials confirmed that they were seeking a candidate with broad Human Resources experience. Complainant’s resume did not indicate that he possessed the desired Human Resources experience while the selectee had an extensive Human Resources background. Finally, as to the position at issue in claim (13), the selecting official said that he was looking for administrative capabilities, a background in complex leadership studies, management analysis, and the ability to prepare and present briefings to executive management, as well as Strategy and Management Session (SMS) and Integrated Program Management (IPM) expertise. The selecting official confirmed that IPM experience was important because the position would 0120160324 5 involve a significant amount of identifying, assessing and mitigating threats, as well as evaluating and adjusting mitigation strategies. The selecting official stated that he selected six candidates for interviews, but Complainant’s resume did not reflect sufficient IPM experience to receive an interview. The selectee for the position was working in the International Operations Division’s executive staff unit and had a strong background in IPM. The Agency concluded that Complainant failed to show that the officials’ reasons for not selecting Complainant for the positions at issue were pretext for unlawful discrimination or reprisal. As a result, the Agency found that Complainant had not been subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL In his lengthy appellate brief, Complainant contends that this is a case of systemic discrimination and disparate impact discrimination based on the uncontrolled discretionary decision-making that occurs in the Agency’s selection process and the prevalence of discriminatory attitudes in the workplace. Complainant claims that the Agency violated its merit promotion plan and that he possessed superior qualifications which should have warranted at least an interview for the positions at issue. Complainant argues that black males are underrepresented in management roles with the Agency. Complainant claims that he was not placed on BQ lists due to irregular patterns and practices in the promotional selection process. Complainant lists each position and the reasons he believes he was the most qualified candidate and why he believes the selection officials are not credible. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Once Complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons for its actions are pretext for discrimination. Id. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Commission finds that Complainant failed to present evidence to 0120160324 6 rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. More specifically, as to the positions at issue in claims (1) and (2), both Human Resources Specialists confirmed that an Agency computer program generated assessment scores for each candidate based on each applicants’ responses to the postings’ questionnaire. ROI, Ex. 10, at 4; ROI, Ex. 11, at 4. Both Human Resources Specialists affirmed that Complainant’s assessment score was lower than 25 other applicants and, at the time, only the top 25 candidates could be referred to the BQ list. ROI, Ex. 10, at 5; ROI, Ex. 11, at 5. As a result, Complainant was not referred for further consideration for both positions. Id. With respect to the position at issue in claim (3), one of the two selecting officials for the position stated that they individually evaluated each applicant and discussed their perspectives before deciding whom to interview and which candidate should ultimately be awarded the job. ROI, Ex. 12, at 4. The selecting official affirmed that he was given a BQ list with approximately 65 applications. Id. at 5. The selecting official asserted that the top criteria he sought were extensive Human Resources/administrative experience, experience with staff at the executive level, leadership, team-building capabilities, and communication skills. Id. at 6. Based on a review of the applicants’ application materials and the identified skills, the selecting official selected four individuals to interview. Id. The selecting official affirmed that Complainant’s resume simply did not reveal the combinations of expertise in the specific areas he was targeting. Id. at 8. Following the interviews and consideration of resumes, the selecting official confirmed that the selectee was ranked as the top applicant. Id. As to the position at issue in claim (4), the selecting official stated that a career board was convened to review the application materials of approximately 120 internal and 200 external applicants. ROI, Ex. 13, at 3-4. The selecting official determined that there were a sufficient number of qualified internal candidates and the board decided to confine their selection to internal candidates. Id. at 3-4. Each board member independently reviewed the internal applications and selected approximately 6 to 10 candidates for interviews. Id. at 4. The board then interviewed the collective recommended candidates. Id. The selecting official affirmed that based on the duties associated with this position, he sought an employee with extensive experience in logistical matters as well as the compliance component of operations and comfort managing a large unit. Id. at 5. The selecting official ultimately selected the selectee who had functioned as an auditor within the Training Division, had excellent team management experience, and was the only candidate able to fully and extensively answer all interview questions, including a question about the Agency’s core values. Id. at 6-7. Regarding the position at issue in claim (5), the selecting official stated that she sought an individual with experience in and a passion for human capital and leadership development. ROI, Ex. 17, at 3-4. Additionally, the selecting official affirmed that she believed it would be beneficial to appoint a candidate who could present the Leadership Development Program’s strategy and metrics program to Agency executives in a compelling, persuasive, and polished manner. Id. at 4. The selecting official confirmed that she reviewed the application materials for the approximately 40 applicants on the BQ list certificate and discussed with the selection panel which applicants deserved further consideration. Id. The selecting official stated that she sought 0120160324 7 a candidate who could collaborate well with peers, possessed strong management and leadership skills, and demonstrated an adaptive management interest. Id. The panel interviewed seven candidates. Id. at 5. The selecting official explained that Complainant did not meet the threshold for an interview based on his background in the delivery and training of presentations as that experience was not as essential as demonstrated leadership, communication strategy, or collaboration. Id. at 7. The selectee for the position demonstrated strong experience in leadership development including possessing a Ph.D. in Leadership Education and formerly ran the Leadership Program for the Army Staff College. Id. at 6-7. With respect to the position at issue in claim (6) (internal announcement) and claim (9) (external announcement), a selection panel was convened that reviewed the application materials of 42 merit promotion candidates. ROI, Ex. 18, at 4. The panel determined that technical expertise and experience in specific areas of records management was an essential quality for the occupant of this role. Id. at 5. The panel believed that there was an ample pool of internal candidates from within the section; therefore, they conducted interviews with only the nine incumbent GS- 14 supervisors within the Name Check Program Section. Id. at 4-5. As a result, Complainant was not referred for an interview or further consideration. The panelists individually rated the candidates based on their responses to the identical interview questions. Id. at 5. Ultimately, the panel recommended the selectee for selection. As to the position at issue in claim (7) (internal announcement) and claim (11) (external announcement), the selecting official stated that the selection panel selected nine out of approximately 30 applicants for the position for interviews. ROI, Ex. 19, at 4. Complainant was chosen for an interview based on his supervisory and counterintelligence experience. Id. at 6. The selecting official affirmed that the panel asked the candidates ten standard questions generated by Human Resources addressing core competencies and one question related to the applicants’ record management experience. Id. The selecting official asserted that Complainant was rated as “competent†for the majority of questions, but “marginal†for the category of communication. Id. The selecting official confirmed that other candidates exhibited greater skills in the core competencies during their interviews. Id. at 7. The selecting official stressed that the selectee demonstrated a high level of competence in leadership and collaboration which led the panel to conclude that he was the best candidate for the position. Id. at 7-8. Regarding the position at issue in claim (8), the selecting official stated that she was seeking a candidate that demonstrated the ability to manage large numbers of government and contractor personnel across multiple geographical locations and experience with the allocation of resources while adhering to tight budget constraints. ROI, Ex. 20, at 4. The selecting official affirmed that she paid particular attention to resumes which demonstrated prior experience with managing multiple remote geographic locations, responsibility for physical and industrial security, and providing management oversight of reimbursable/user fee production environments. Id. The selecting official stated that she interviewed 13 of 35 individuals from the BQ list. Id. at 5. The selecting official affirmed that her first choice for the position demonstrated broad ranging experience in administrative, financial, training, human resource matters, was a liaison to Human Resources, worked on outreach programs, and had COOP experience. Id. at 8. The selecting 0120160324 8 official asserted that her first choice declined the position. Id. The selecting official stated she then selected the selectee based on his extensive resume which included experience with a multi- agency task force, management experience over several hundred Navy officers and government personnel, experience with inter-agency memorandums of understanding, and financial management responsibility. Id. at 9. By contrast, the selecting official noted that Complainant was not chosen for an interview based on his critical proficiencies not standing out in his resume. Id. As to the position at issue in claim (10), the Section Chief (SC) of the Resource Management Section, Counterterrorism Division declared that vacancy announcement for this position was cancelled because management consolidated two Executive Staff units. ROI, Ex. 21, at 3. As a result, one of the Unit Chiefs remained in place with the newly combined unit while the other Unit Chief was laterally reassigned to the advertised vacancy. Id. Thus, the vacancy announcement was closed and no interviews were conducted. Id. at 3-4. Regarding the position at issue in claim (12), the selecting official affirmed that she was seeking a candidate possessing broad based Human Resources experience as the individual selected would oversee all administrative/Human Resource matters within the division, including hiring, awards, resource/supply acquisitions, employee ratings, and remedial measures. ROI, Ex. 21, at 4. The selecting official stated that she and the Assistant Section Chief interviewed six candidates, but they did not select Complainant for an interview because his resume did not demonstrate that he had the level of Human Resources experience that the selecting official was seeking. Id. at 7-8. The selecting official confirmed that they selected the selectee based on her impressive interview as well as her extensive background in Human Resources matters. Id. at 7. Finally, as to the position at issue in claim (13), the selecting official stated that he was seeking a candidate with administrative capabilities, a background in complex leadership studies, management analysis, the ability to prepare and present briefings to executive management, and Strategy and Management Session and IPM expertise. ROI, Ex. 22, at 3-4. The selecting official affirmed that while evaluating candidates’ resumes, he concentrated on their most recent assignments and their past five years of work experience. Id. at 5. The selecting official confirmed that six candidates were selected for interviews. Id. The selecting official explained that Complainant was not selected for an interview because his resume did not demonstrate the sufficient experience in the desired field of IPM to reach the threshold for an interview. Id. at 6. The selecting official stressed that the selectee for this position was working in an executive staff unit within the International Operations Division and had a strong background IPM. Id. at 5. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency’s proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectees. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). 0120160324 9 This is simply one method and is not the only way Complainant may establish pretext as to his non-selection claim. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds no persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s actions. The Commission finds that Complainant failed to show that his qualifications for the positions at issue were plainly superior to those of the selectees. In this case, the selectees had attributes that justified their selections, and the selecting officials affirmed that they believed the selectees were better equipped to meet the Agency’s needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Disparate Impact The Commission notes that Complainant raised disparate impact discrimination throughout the processing of his complaint. The Agency declined to accept disparate impact as a theory of discrimination over Complainant’s objections. The Commission finds that the Agency erred in not accepting Complainant’s claim of disparate impact discrimination. Nonetheless, the Agency’s failure to accept this theory of discrimination does not prevent the Commission from reviewing the factual evidence in the record along with Complainant’s arguments. Accordingly, the Commission considers the record complete and will now address the merits of Complainant’s disparate impact claim. To establish a prima facie case of disparate impact, Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (Complainant must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusionâ€). Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. The burden is on Complainant to show that “the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern.†Dothard v, Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). 0120160324 10 Complainant alleges that the Agency’s “uncontrolled and unmonitored discretionary decision- making†during the selection process “coupled with the prevalence of discriminatory attitudes†disparately impacts black males. Further, Complainant claims that the Agency’s selection process was “manipulated†by the Agency which resulted in systemic discrimination against black males. After careful consideration of the entire record, the Commission finds that Complainant, who carries the initial burden of proof, has failed to provide sufficient evidence to establish a prima facie case of disparate impact in this matter. The statistics provided by Complainant were generalized, vague, and insufficient to show that an identified practice of the Agency caused the exclusion of members of his protected classes. Moreover, Complainant did not sufficiently identify the particular aspect(s) of the Agency’s selection process allegedly responsible for any observed statistical disparity as required in the first and third steps of the prima facie case of disparate impact. Simply claiming that Agency officials’ use of subjective criteria, without more specificity, causes a disparate impact does not meet Complainant’s prima facie burden. Furthermore, the gross statistics offered by Complainant are too broad to draw appropriate statistical conclusions that there was a relevant statistical disparity in this case. Therefore, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 0120160324 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. 0120160324 12 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 March 22, 2018 Date Copy with citationCopy as parenthetical citation