Jessenia S.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

0120170494 (E.E.O.C. Dec. 18, 2018)

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

Jessenia S.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.

Appeal No. 0120170494

Hearing No. 471-2014-00123X

Agency Nos. DCAA-CASE-NE13-001,
DCAA-CASE-NE14-007

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 13, 2016, final
order concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing, and whether the AJ properly found that Complainant did not prove that she was
subjected to unlawful discrimination or harassment.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Auditor, GS-
12, in the Agency’s Northeastern Region at the Great Lakes Branch Office (GLBO) in Livonia,
Michigan.

On July 17, 2013 and August 4, 2016, Complainant filed EEO complaints in which she alleged
that the Agency discriminated against her on the bases of race (African-American), disability, age
(born in July 1960), and in reprisal for prior protected EEO activity when:

1. On September 9, October 31, and December 4, 2012, S1 and S3 “pushed and
pressured” Complainant for due dates on the Cybernet assignment;

2. On January 29, 2013, S2 used loud language and hand waving gestures when telling
Complainant to “get out of the office;”

3. On January 31, 2013, Complainant was placed on an informal Performance
Improvement Plan (PIP) and her telework privileges were suspended;

4. On June 7, 2013, Complainant requested a reassignment to another team; however,
she was not reassigned until February 19, 2014;

5. On July 3, 2013, Complainant was not notified that GLBO employees were
authorized 59 minutes off;

6. On December 3, 2013, S1 set an unrealistic due date for a notice to the Technical
Directions Incorporated (TDI) contractor;

7. On December 11, 2013, S1 informed Complainant she was absent without leave
(AWOL) on October 30, 2013;

8. On December 11, 2013, S1 denied Complainant the versatility of working a flexible
work schedule and restricted Complainant’s reporting time to a fixed hour;

9. On December 11, 2013, Complainant received an unacceptable performance
appraisal, which resulted in her being placed on a 90-day PIP;

10. On January 28, January 29, February 11, and February 18, 2014, S1 denied
Complainant’s annual leave request and placed her in AWOL status;

11. On February 7, 2014, Complainant was issued a Letter of Reprimand and issued a
Restriction on Leave Usage letter;

12. On February 19, 2014, Complainant’s PIP was extended for 90 days;
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13. On February 19, 2014, Complainant was issued her 30-year pin and certificate;

14. From September 2012 to February 2014, Complainant was not allowed to act on
behalf of her supervisor;

15. New employees at GLBO were not introduced to Complainant; and

16. On June 23, 2014, Complainant’s security clearance eligibility was suspended, and
she was placed on administrative leave pending a final adjudication of that
suspension.

In an investigative statement, Complainant stated that she has previously filed three EEO
complaints, and her second-level supervisor (S2) was named as the responsible management
official in each of the complaints. Regarding claim 1, Complainant stated that on
January 10, 2012, the Cybernet System Incurred Cost audit was assigned to her by the Supervisory
Auditor (SA), who retired in August 2012. She stated that she successfully completed two or three
assignments under SA and received fully successful performance assessments from 2010 to 2012.
Complainant stated that after S2 became the new Supervisory Auditor, she continuously emailed
her and inquired about the status of the Cybernet report. Complainant further stated that S1
provided faulty guidance for the Cybernet report, which wasted time. She stated that on
December 4, 2012, management set a January 31, 2013 report due date, although Complainant
suggested a March 31, 2013 due date because she knew the earlier date would be a “bit aggressive.”

Regarding claim 2, Complainant stated that during a conversation, S2 stretched her arms above
her head with her hands pointing toward the door of her office. Complainant further stated that S2
then waved her arms in gestures two or three times while shouting, “Get out of my office,
[Complainant]! [Complainant] get out of the office.”

Regarding claim 3, Complainant stated that she was placed on an informal PIP because she
received a minimally successful performance assessment for the period from September 2012 to
January 2013. She further stated there was no basis for S1 to conclude that her performance had
deteriorated with respect to completing an audit assignment in a timely manner. Complainant
stated that S1 focused on the timeliness of the project but failed to address the complexity of the
Cybernet assignment. Additionally, Complainant stated that her telework privileges were
suspended because of her minimally successful performance rating.

Regarding claim 4, Complainant stated that she requested team reassignment on several occasions,
beginning on May 31, 2013. She stated that she made the request because she found working with
S1 “a difficult and negative challenge” because her instruction was unclear and incorrect.
Complainant stated she initially made the requests to S2, but S2 only responded that she did not
know what to do with the things Complainant shared with her. She further stated that she also
shared her situation with the Director and Deputy Director.
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Complainant stated that on February 19, 2014, she was reassigned to another supervisor’s (S1a)
team. She stated S2 told her that S2 forgot to reply to initial request for reassignment.

Regarding claim 5, Complainant stated that on July 3, 2013, she worked her regular four-hour
work day, and left around noon. She stated that S2 then evoked the “59 minute rule,” and a
message about the rule was sent out at 1:41 p.m. Regarding claim 6, Complainant stated that on
December 11, 2013, S1 set December 17, 2013 as the due date for a notice to be sent to TDI
regarding the issues she and S2 determined needed follow-up. She stated this was an unrealistic
due date because it did not account for her work schedule or the fact that S1 and S2 had planned
to give her an unsettling performance assessment on that same day.

Regarding claim 7, Complainant stated that S1 considered her AWOL while on sick leave on
October 30, 2013 because she did not call in and request sick leave for the second day of leave.
She stated that it has been the policy of the office to allow three days of sick leave without
continuous communication about the leave. Regarding claim 8, Complainant stated the fixed hour
reporting schedule that S1 imposed upon her removed the possibility of reporting to work at
varying times. She stated that management restricted her to reporting to work at 9:15 a.m. on
Tuesdays and Fridays, and 10:30 a.m. on Wednesdays.

With respect to claim 9, Complainant stated that she received an unacceptable performance
assessment for the period May 2, 2013, through December 6, 2013. Complainant stated that
regarding her unacceptable rating in the element of audit performance, S1 did not fairly rate her
performance because Complainant referenced unclear, inaccurate, and incomplete work papers.
She stated that S1 had limited skill level as a new supervisor and found fault instead of offering
guidance. Regarding her minimally successful rating in the element of audit report and official
correspondence, Complainant stated that S1’s assessment narrative was “totally ambiguous and a
stretch.” With respect to her minimally successful rating in the element of communication and
organization support, Complainant stated that the tone of the office makes it difficult for her to
“exist.” Regarding the element of working relationships, Complainant stated that it was her idea
to work on an audit as a team, and her idea to have new auditors become proficient in one audit
area.

Regarding claim 10, Complainant stated that on January 28, 2014, S1 denied her annual leave
request on the basis that Complainant was required to be in the office for a mandatory staff
conference. Complainant stated that her request should have been approved because weather
conditions were dangerous, and she was already suffering from anxiety.

Regarding claim 11, Complainant stated that S1’s “continuous bully tactics and threats” caused
her to experience mild depression and to take a two and a half month medical leave of absence
without pay. Complainant further stated that when she returned to work in May 2013, there were
uncontrollable circumstances that would often cause her to not be able to make the drive to work.
Complainant stated that she was issued a leave usage restriction letter, which said she had
numerous unscheduled and excessive absences.
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Complainant stated that from February 2013 to February 2014, she took 198 hours of annual leave,
40 hours of sick leave, and 252 hours of leave without pay. She stated that her leave seemed
excessive, but it was caused by the “tumultuous times” she experienced under S2.

Complainant further stated that on January 28 and 29, 2014, she texted S1 and requested leave
because of a snow storm and dangerous cold temperatures. Complainant stated that S1 reminded
her of the staff conference and indicated Complainant was expected to attend. However,
Complainant stated that she did not attend the staff conference, and her request for leave was
denied. She stated that she was issued a letter of reprimand for not attending the conference.

Regarding claim 12, Complainant stated that on February 19, 2014, S2 extended her PIP and
suspension of telework. She stated that she did not believe the PIP should have been extended
because it only served as a vehicle to cause her personal harm. With respect to claim 13,
Complainant stated on February 19, 2014, S2 gave her a 30-year service pin and certificate in a
“by the way” manner. She stated that the certificate was signed November 24, 2012. Complainant
further stated that most people were presented with this recognition during a staff conference or
within the same quarter the certificate was signed or within the same year of the anniversary date.

Regarding claim 14, Complainant stated S1 never informed her that it was her turn to act as
supervisor. She stated there should have been a rotational selection process that allowed all
auditors the opportunity to experience acting as supervisor. Regarding claim 15, Complainant
stated that S1 and S2 did not introduce four new employees to her, although she believed they
were introduced to every other person in the office. Regarding claim 16, Complainant stated that
she disagreed with the action to suspend her from duty because the information she worked with
was not classified, nor did it pose a threat to national security. Complainant further stated she
believed that she was treated differently than a coworker (C1) who was favored by S1. She stated
she was arrested and had a foreclosure, but she did not see the purpose of disclosing her personal
information to S2 or C1.

Final Agency Decision

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ then consolidated Complainant’s
complaints. On June 30, 2015, and July 15, 2015, the Agency filed motions for summary
judgment. Complainant did not respond to the motions. On September 20, 2016, the AJ issued an
Order Entering Judgment in favor of the Agency. Specifically, the AJ found that Complainant did
not establish a prima facie case of discrimination under a disparate treatment analysis, nor did she
show that the Agency’s nondiscriminatory explanations were pretext for unlawful discrimination.
The AJ further found that the alleged actions were not severe or pervasive enough to constitute a
hostile work environment. The Agency subsequently issued a final order fully adopting the AJ’s
finding that Complainant failed to prove the Agency subjected her to unlawful harassment or
discrimination as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant mostly reiterates the allegations she raised in her complaint and during
the investigation. The Agency requests that we affirm its final order.

ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes
summary judgment “where the [party opposing summary judgment] has not had the opportunity
to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if
necessary, after receiving an opposition to a motion for a decision without a hearing).

After a careful review of the record we find that there was no genuine issue of material fact or
credibility that warrants a hearing. The AJ found that the undisputed record, including the
complaint, sworn testimony, Report of Investigation, and all submissions of the parties, was
comprehensive, complete, impartial, and constituted an appropriate basis upon which to render a
decision without a hearing in favor of the Agency. We agree, and therefore, find that a decision
without a hearing was appropriate.

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Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie case 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.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once a 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. Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts to the complainant to demonstrate by a preponderance of the evidence that the Agency’s
reason(s) for its action was a pretext for discrimination. At all times, the 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. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, Complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

Regarding claim 1, S1 stated that she asked Complainant when she expected to complete the
Cybernet audit after Complainant missed every due date from September 2012 to January 31,
2013. S1 further stated that on December 4, 2012, she met with Complainant and reviewed her
progress on the Cybernet audit. She stated that Complainant agreed that she could complete
Cybernet by the end of January 2013. S1 stated that she approved Complainant to telework
through January 2013 with the understanding that if she missed her deadline, her telework
privileges would be suspended. She stated that Auditors set their own due dates, but shortly after
September 2012, Complainant told her that she would not be pressured into meeting a due date
because the Cybernet assignment was complicated.

Regarding claim 2, S2 stated that S1 met with Complainant on January 29, 2013, regarding her
mid-year appraisal, and S1 informed Complainant her performance was not fully successful in
several performance standards. S2 further stated that Complainant walked directly into her office
after leaving the performance review and asked S2 if she agreed with the appraisal. S2 stated that
she told Complainant she agreed with the appraisal; however, Complainant continued to ask the
same question repeatedly.
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She stated that she asked Complainant to leave her office because Complainant did not want to
discuss the issue. S2 stated that she did not raise her voice, but she waved her hands at Complainant
in reaction to her doing the same to S2.

Regarding claim 3, S1 stated that Complainant was placed on an informal PIP because she was not
performing the duties of her job successfully. S1 further stated that she identified areas
Complainant needed to improve in and lost her telework privileges because she missed three due
dates on the Cybernet assignment. She further stated that she believed Complainant would be
more productive in the office where she could be more focused.

Regarding claim 4, S2 stated that Complainant requested reassignment from S1’s team on June 7,
2013 and again on February 7, 2014. S2 further stated that she acknowledged Complainant’s initial
request and prepared a response, but she erroneously did not send the response. S2 stated that
Complainant again requested a reassignment during her appraisal review, and it was at that time
that she realized that she had not sent her response to Complainant. S2 stated that by that time, her
response had been overcome by events, and she reassessed Complainant’s request. She stated that
she reassigned Complainant on February 18, 2014, and Complainant was pleased by the
reassignment and offered no objection to it.

With respect to claim 5, S2 stated that she sent an email directing supervisors to notify their
employees that 59 minutes of administrative leave was approved for July 3, 2013. She further
stated that the acting manager that day notified Complainant via email that 59 minutes off was
approved, but employees not working or only working a partial day did not get the benefit of 59
minutes.

Regarding claim 6, S1 stated that she did not set any due dates for Complainant on the TDI
assignment, and Complainant set the initial due date and coordinated an extension of the audit
directly with the Requestor. She further stated that setting the due dates for an assignment is the
Auditor’s responsibility, and Complainant indicated that she felt pressured whenever S1 asked for
status updates on assignments or asked any questions related to an assignment.

Regarding claims 7 and 10, S1 stated that Complainant called off on a Tuesday but did not call off
on the following day, and as such, she was technically AWOL on the day she did not “call off.”
She further stated that on January 28 and 29, 2013, GLBO had a mandatory staff conference, and
Complainant agreed to adjust her schedule to attend the staff conference. S1 stated that on the first
day of the conference, Complainant texted S1 that she was not coming into the office due to the
weather and requested annual leave. S1 also stated Complainant did not have a telework
agreement; therefore, she could not call into the conference and was directed to report to the office.
S1 stated that another employee who lives near Complainant reported to the staff conference on
both days. She stated that Complainant’s leave request was denied because Complainant was
aware of the conference and the expectation for her attendance.

S1 also stated that cold weather is not a reason to miss work, and Complainant was placed in an
AWOL status on January 28-29, 2014 because her leave request was denied.
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S2 stated that Complainant’s leave restriction letter required her to provide documentation to
support her requests for leave, and Complainant was placed in AWOL status on February 11 and
18, 2014, because she did not provide supporting documentation for her leave requests before
timesheets were certified.

Regarding claim 8, S1 stated that she informally counseled Complainant about her reporting time
because she was not arriving at her designated starting time. S1 stated that Complainant did not
request a change in her reporting time, and she asked Complainant to set her hours and to report
to work at the time she set. S2 stated that at the time, the attendance policy required employees to
work their set schedules. She stated that Complainant and S1 agreed to a new starting time for
Complainant based on the times Complainant believed she could report to work.

With respect to claims 9 and 12, S1 stated that she rated Complainant unacceptable on her
performance appraisal because she issued TDI a “clean opinion although it had multiple
deficiencies in its accounting system.” S1 further stated that Complainant did not follow up with
issues identified in her own notes and even agreed that the deficiencies identified in her audit
review were in fact deficiencies. She stated that Complainant’s PIP was extended in May 2013
after she returned from an extended leave of absence because it is difficult to assess an employees’
performance without having completed work to review. S1 stated that Complainant’s informal
PIP was extended in July 2013 because she had not completed any work assignments at that time.

Regarding claim 11, S1 stated that Complainant was issued a leave restriction letter because she
took excessive amounts of unplanned leave that affected her work. She stated that Complainant
took 30 percent of her scheduled work hours in annual or sick leave, and Complainant told her she
would take leave whenever she wanted to take leave. S1 further stated that she issued Complainant
a letter of reprimand because she did not report to work on January 28 and 29, 2014 when she was
directed to do so and after she had an informal discussion with Complainant about her attendance.

With respect to claim 13, S2 stated that she did not remember if she had Complainant’s pin and
certificate at the staff meeting in May 2013, but if she did, she forgot to issue it to Complainant at
that time. She stated that Complainant did not attend the June 2013 and January 2014 staff
conferences, and February 19, 2014 was the next day she and Complainant were in the office at
the same time.

Regarding claim 14, S1 stated that she selected employees to act for her from the pool of Auditors
that volunteered, but Complainant never volunteered to act as the Supervisory Auditor. She further
stated that when Complainant’s performance level dropped below fully successful, she was not
asked to act as Supervisory Advisor. S1 stated that she selected employees to act on her behalf
based on their grade level and performance, and Complainant never showed any interest in acting
as such when she was eligible to fill the role.

Regarding claim 15, S1 stated that she introduced new employees to Complainant, and
Complainant never told her that she was not introduced to a new employee.
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S2 stated that it was possible that Complainant was not introduced to new employees, but
Complainant never made her aware that she was not introduced to them.

Regarding claim 16, S2 stated that Complainant requested leave for a court appearance but refused
to provide documentation to substantiate the request. S2 stated that she then “Googled”
Complainant and discovered she had financial issues and an arrest. She further stated that she then
contacted the Security Chief, who said Complainant’s background investigation was pending, but
it would be moved up because of security concerns. S2 stated that she had an obligation to report
the concerns pursuant to Agency policy. The Security Specialist stated that Complainant was one
of about 2,000 employees requiring reinvestigation, and she initiated Complainant’s investigation
pursuant to the Federal Investigative Services (FIS) by requesting Complainant complete security
forms. The Security Specialist further stated that on the forms, Complainant reported a
foreclosure, tax issues, and a police record from 2012. She stated that Complainant had an
obligation to report these issues at the time of the events, but she failed to do so.

The Security Chief stated that Complainant was investigated because she was on a roster of
individuals who had outdated investigations. The Security Chief further stated that based on
information that surfaced from the FIS/Office of Personnel Management (OPM) investigation,
management decided to suspend Complainant until final adjudication was made by the Agency.
She stated that all positions in the Agency are sensitive positions.

In an effort to prove pretext, on appeal Complainant contends that two other employees missed
due dates but did not receive negative performance evaluations or lose telework privileges.
However, the record reveals that they were not similarly situated to Complainant because they did
not have the same direct supervisor as Complainant. Complainant further maintains that
management’s response to her reassignment request was “extremely untimely,” but we find there
is no persuasive evidence that the delayed response was attributable to unlawful discrimination.
Moreover, the Agency ultimately reassigned Complainant in accordance with her request.
Complainant also argues that OPM policy allows federal employees to begin work at varying times
during core hours. However, this does not mean that all federal employees are guaranteed a
flexible schedule. Instead, OPM allows agencies and managers to individually decide whether to
adopt flexible work schedules based on their business needs and missions. To the extent that
Complainant alleges that management asked her to designate due dates for assignments, we find
that this was reasonable because of the critical nature of the projects on which Complainant
worked.

Upon review, while Complainant clearly often disagreed with management’s decisions, there is no
evidence from which a reasonable fact-finder could conclude that the Agency’s nondiscriminatory
explanations were pretext for unlawful discrimination. The Commission cannot second-guess an
Agency’s business decisions unless there is evidence of a discriminatory motivation on the part of
the officials responsible for making those decisions. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 259 (1981). Moreover, we note that Complainant did not respond to the
Agency’s motion for summary judgment. We conclude that the AJ properly found that
Complainant did not prove she was subjected to unlawful discrimination or harassment.
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See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final order for the reasons set
forth in this decision.

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

December 18, 2018
Date