Jona R.v.Dep’t of State

Equal Employment Opportunity Commission

Jan 23, 2020

EEOC Appeal No. 0120182063 (E.E.O.C. Jan. 23, 2020)

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

Jona R.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120182063

Agency No. DOS-0068-14

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 final decision concerning
her equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency’s final
decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-12 Administrative
Assistant within the Agency’s Bureau of Diplomatic Security, Secretary's Protective Detail, in
Washington, D.C. In this position, Complainant primarily provides operational planning and
coordination for the Secretary’s Protective Detail and administrative, logistical, procurement, and
financial support for the Detail. On September 13, 2013, a new manager became Complainant’s
direct supervisor (S1)

Complainant has teleworked since 2009 and last signed a telework agreement on June 28, 2012
that expired on June 29, 2013. The June 2012 to June 2013 agreement allowed Complainant to
telework on Mondays, Wednesdays, and Fridays.

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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Complainant has been diagnosed with Type I Diabetes, Neuropathy, Anxiety, Depression, and
Autonomic Neuropathy. Because of these conditions, Complainant sometimes experiences
dizziness, fainting, low blood pressure, abnormal perspiration, a lack of bladder/bowel control,
vomiting, nausea, and pain in her hands and feet. On October 29, 2013, Complainant verbally
asked S1 if she could telework the next morning because she was having “some health issues” and
did not think she would be well enough to return to the office the next morning because she would
not be able to get a full night’s sleep.

On October 30, 2013, Complainant emailed S1 and copied her second level supervisor (S2) with
a request to telework. Also on October 30, 2013, S2 informed Complainant that he could not
approve her for telework until she signed a new telework agreement. S2 further stated that there
was no reason why Complainant could not telework, and “we need to submit everything to make
it happen.” Complainant took sick leave for October 30, 2013.

On November 1, 2013, Complainant submitted a Request for Reasonable Accommodation form
on which she indicated she was seeking flexible telework “to allow [her] to decide if [she is] able
to drive into the office to work.” Report of Investigation (ROI), Volume 1, p. 141. In an email
dated November 6, 2013, S1 stated that he and S2 had informed her on September 25, 2013 that
her telework agreement was not approved, and in order for it be approved, Complainant must
resubmit it with documentation of her work activities during work hours. S1 further stated that
management scheduled meetings about the matter, which were canceled because Complainant
took sick leave, and Complainant failed to provide documentation requested via email. S1 stated
that Complainant was expected to come in to work during normal duty hours until she provided
the requested documentation.

On November 6, 2013, a District and Reasonable Accommodation official (DRAD1) informed
Complainant that he had received her request for a reasonable accommodation and asked
Complainant to seek another telework agreement through her supervisor. Also on November 6,
2013, S1 told Complainant that her telework agreement had not been approved by the Office of
the Chief Technology Officer (DS/EX), and Complainant had to resubmit documentation
regarding her work activities during telework hours in order to have it approved. On November
7, 2013, DRAD1 informed Complainant that a new telework agreement for Complainant was not
approved because of an “entry error,” and that Complainant should resubmit a telework agreement.
On November 12, 2013, DRAD1 informed Complainant that his office was trying to arrange a
teleconference with her Bureau for the following day, and that DRAD was seeking a 30-day
situational telework agreement with her.

In an email on November 21, 2013, DRAD1 informed Complainant that he believed that her
accommodation request would be resolved earlier by resubmitting her telework agreement using
the “regular route,” instead of through DRAD. DRAD1 noted that an attempt was made in August
2013 to renew her agreement, and after a second attempt, her supervisor asked her to resubmit the
agreement by providing justification for requesting six days of telework per pay period.
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DRAD1 further stated that he proposed that Complainant resubmit the agreement requesting
“situational telework” based on the reason set forth in the previous agreement. DRAD1 stated that
in the meantime, Complainant could use leave when she felt she could not come in to work.

On November 26, 2013, Complainant reiterated her request for situational telework during a
meeting with management, and in response, management approved her for telework for a 30-day
“trial period.” On December 11, 2013, S1 and the Chief signed an “Addendum to Situational
Telework Agreement” for Complainant that stated that she would telework on “a daily basis2
unless otherwise specified by the supervisor” for 30 days. In a December 16, 2013 email,
Complainant told DRAD1 that the addendum was not what she expected and lacked the flexibility
that was essential to complete her work requirements with her condition.

On January 2, 2014, Complainant asked DRAD1 for the reasonable accommodation of fulltime
telework because she had recently begun treatment for anxiety and depression, her health had
become progressively worse, and the medication made her groggy. Additionally, Complainant
maintained that ongoing hostility in the office had a negative impact on her health and exacerbated
her symptoms. Complainant also stated that she was not comfortable signing the telework
agreement addendum because she needed “a lot of flexibility.”

On January 10, 2014, DRAD1 met with Complainant to discuss her accommodation request. On
January 12, 2014, Complainant proposed that the agreement be changed to reflect core work hours
of 6:30 a.m. to 3:15 p.m. with a 45-minute lunch and the ability to report to work by 6:30 a.m.
unless medical problems made it to telework, in which case the supervisor would be notified by
7:30 a.m.

On or about January 28, 2014, Complainant submitted medical documentation from her physician
(Dr1) that indicated that she had Type I Diabetes and Neuropathy that caused her to experience
variable glucose levels, palpitations, nausea, and dizziness. Additionally, Dr1 stated that Diabetic
Neuropathy is difficult to control and is a daily event impacted by ambulation. Complainant also
reported that she requested fulltime telework because she experienced complications caused by
her diabetes, including dizziness, fainting, extremes in glucose levels, nausea, and vomiting.
Complanant also stated that it was dangerous for her to drive with erratic blood sugar; it was
preferable to vomit at home instead of in work restrooms; and the office environment had a lot of
noise, chaos, and heavy customer traffic that made it difficult to focus on the complex, detail-
oriented work she performed.

On January 30, 2014, Complainant met with DRAD1 and management to discuss her pending
accommodation request, job duties, performance, and leave situation. On April 23, 2014,
Complainant met again with DRAD1 to discuss her accommodation request.

2 Although the addendum uses the term “daily basis,” other evidence indicates that the addendum
contemplated granting Complainant only three days of telework per week on Mondays,
Wednesdays, and Fridays, which is consistent with the main telework agreement.
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On May 6, 2014, the Agency informed Complainant that she was approved for three days of
teleworking per week, or on Mondays, Wednesdays, and Fridays. The Agency also sent
Complainant a copy of the addendum to the telework agreement that reflected that her core work
hours would be 6:30 a.m. to 3:15 p.m., that she would have to report her duty station to her
supervisor by 6:30 a.m., and she would have until 7:30 a.m. to report to her supervisor if medical
issues made it necessary to telework. Complainant rejected the Agency’s offer and did not report
to work after April 11, 2014.

On February 7, 2014, Complainant filed an EEO complaint in which she alleged that, from October
29, 2013, the Agency failed to provide her with a reasonable accommodation for her disability.3

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 Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently
withdrew her request.

Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final
decision, the Agency found that Complainant was a qualified individual with a disability.
Nevertheless, the Agency concluded that Complainant did not prove she was denied a reasonable
accommodation for her disability. Specifically, the Agency determined that Complainant did not
submit any documentation to support her October 29, 2013 request for situational telework.
Regarding Complainant’s January 2, 2014 request for fulltime telework, the Agency determined
that it provided Complainant with an effective reasonable accommodation by offering her the
ability to telework three times per week.

The Agency concluded that Complainant’s medical documentation did not support her request for
fulltime telework, and she would have been best accommodated through a combination of telework
and sick leave. Additionally, the Agency concluded that fulltime telework would have imposed
an undue hardship on the Agency because: her position required training and periodic meetings
in the office; trip planners were not able to follow all information given via telephone calls;
Complainant’s workload had increased by 135 percent; and Complainant had demonstrated an
inability to follow proper procedures for reporting her duty station and work status while
teleworking.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates her assertion that the Agency failed to provide her with a
reasonable accommodation.

3 We note that this complaint also contained the allegation that Complainant was subjected to a
hostile work environment. However, Complainant withdrew the hostile work environment clam
on February 27, 2018.
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Complainant contends that she needed flexibility in teleworking, but the Agency only offered her
the ineffective accommodation of three core days4 of telework per week, which required her to
identify her telework days in advance. Complainant contends that she initially requested
situational telework as a reasonable accommodation because it would have allowed her to perform
her job duties without commuting on days when she had diabetic symptoms such as vomiting,
nausea, and unstable blood glucose levels. Complainant contends that she rejected the Agency’s
December 2013 telework offer because it did not provide her with flexibility if she woke up ill and
could not report to the office. Complainant further contends that she requested fulltime telework
in January 2014 because her health became progressively worse and going into the office
exacerbated her symptoms. She maintains that she rejected the Agency’s May 2014 offer of three
days a week of telework (Mondays, Wednesdays, and Fridays) because such “core telework hours
would not make it possible for her to do her job.”

STANDARD OF REVIEW

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).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that 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”).

ANALYSIS AND FINDINGS

Denial of Reasonable Accommodation

Under the Commission's regulations, a federal agency may not discriminate against a qualified
individual on the basis of disability and is required to provide reasonable accommodations to the
known physical and mental limitations of an otherwise qualified individual with a disability unless
the Agency can show that reasonable accommodation would cause an undue hardship. See 29
C.F.R. § 1630.2(o), (p). To establish that she was denied a reasonable accommodation,
Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. §
1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. §1630.2(m);
and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on
Reasonable Accommodation).

4 In this case, witnesses use the term “core telework” to mean telework in which employees
telework on a regularly-scheduled basis at least one day a week.
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An individual with a disability is one who: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is
regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Major life activities include such
functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working; and the operation of a major bodily function. 29 C.F.R. §
1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to
perform a major life activity as compared to the ability of most people in the general population.
29 C.F.R. § 1630.2(j)(1)(ii).

An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience,
education, and other job-related requirements of the employment position that the individual holds
or desires and, with or without reasonable accommodation, can perform the essential functions of
such position. 29 C.F.R. § 1630.2(m). “Essential functions” are the fundamental duties of a job,
that is, the outcomes that must be achieved by someone in that position. Gwendolyn G. v. U.S.
Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013).

In this case, Complainant has been diagnosed with Diabetes, Neuropathy, Anxiety, Depression,
and Autonomic Neuropathy, and the Agency concedes that Complainant is a qualified individual
with a disability. Because of her medical conditions, Complainant sometimes experiences
symptoms commonly associated with her conditions, including dizziness, fainting, fluctuating
glucose levels, nausea, vomiting, and difficulties with bladder/bowel control. We note that
Commission regulations explicitly state diabetes substantially limits endocrine function, a major
life activity. 29 C.F.R. § 1630.2(j)(3)(iii); see Irina T. v. Dep’t of Veterans Affairs, EEOC Appeal
No. 0120180568 (Apr. 3, 2019). Moreover, the Agency acknowledges that Complainant is a
qualified individual with a disability. As such, we likewise find that Complainant is a qualified
individual with a disability.

The record reveals that Complainant initially requested reasonable accommodation on or about
November 1, 2013, when she submitted a Reasonable Accommodation Request form that stated
that, because of her Diabetes and Autonomic Neuropathy, she needed to be able to determine each
morning if it was “appropriate to go into work or work from home depending upon [her]
symptoms.” Additionally, Complainant requested telework flexibility that would allow her to
decide if she was too ill to drive into the office to work on a particular day when she was
experiencing symptoms. In January 2014, Complainant requested fulltime telework because her
health had become “progressively worse” and the office environment had noise, chaos, and
customer traffic that made it difficult for her to focus on her work. Complainant also reported she
needed fulltime telework because it had become dangerous for her to drive when she experienced
erratic blood sugar levels, and it was preferable to vomit at home instead of at work.

Upon review, we find that Complainant demonstrated that she needed the reasonable
accommodation of situational telework by showing that she had a medical condition that
sometimes caused her to experience symptoms that negatively impacted her ability to commute or
work in the office. However, we do not find that Complainant proved that she needed fulltime
telework because of her medical conditions.
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In so finding, we note that Complainant did not provide any medical documentation that
established the frequency of her symptoms, and Complainant’s bare assertion that she was unable
to come into the office at any time because of her conditions does not establish her need for the
broader accommodation of fulltime telework.

The Agency concluded that it provided Complainant with an effective reasonable accommodation
when it offered her telework three times per week. However, as Complainant points out, the
Agency only offered to allow Complainant to telework on Mondays, Wednesdays, and Fridays,
which is essentially the same telework schedule Complainant had before she requested reasonable
accommodation. However, Complainant disclosed she needed to telework when she experienced
symptoms related to her condition that impacted her ability to commute and work in the office.
These symptoms often occurred without significant notice and were not restricted to Mondays,
Wednesdays, and Fridays. Therefore, if Complainant experienced symptoms that impacted her
ability to commute or work in the office on Tuesdays or Thursdays, the telework agreement would
not have provided her with a reasonable accommodation for her medical conditions. The Agency’s
offer of telework on Mondays, Wednesdays, and Fridays was not an effective accommodation
because it did not meet Complainant’s need for flexible, situational telework as needed.

The Agency’s final decision asserted that fulltime or situational telework would have imposed an
undue hardship because: Complainant’s position required training and periodic meetings in the
office; trip planners were not able to follow all information on telephone calls; Complainant’s
workload had increased by 135 percent and Complainant had new work commitments; and
Complainant had demonstrated an inability to follow proper procedures for reporting her duty
station and work status while teleworking. However, S2 stated that “training and periodic
meetings” for Complainant only occurred “intermittent[ly].” ROI, Volume 3, p. 912. As such, we
are not persuaded that Complainant had to train and attend meetings so often as to preclude her
from teleworking situationally. The Agency further maintained that Complainant could not
telework situationally because her workload had increased by 135 percent. However, an increase
in workload does not necessarily make situational telework implausible, and the Agency did not
prove that it was the case here. At any rate, S2 greatly undermined the Agency’s assertion by
stating that “the actual core duties of the [C]omplainant, as written, may be performed remotely.”
Id.

The Agency also contends that Complainant cannot situationally telework because she stopped
sending daily status reports and providing work product since April 14, 2014. However, the record
reflects that Complainant sought long term leave for this period because she believed that the
Agency’s failure to provide her with the effective reasonable accommodation of situational
telework was exacerbating her medical conditions. As such, we reject the Agency’s claim that
Complainant’s difficulty in reporting her work status or providing work product during this period
indicates that situational telework would impose an undue hardship on the Agency.

The Agency also maintains that it accommodated Complainant by permitting her to take leave
when she experienced medical symptoms that made it difficult for her to commute or work in the
office.
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While an employer may choose between effective accommodations, forcing an employee to take
leave when another accommodation would permit an employee to continue working is not an
effective accommodation. See Denese v. Dep't of the Treasury, EEOC Appeal No. 0120141118
(Dec. 29, 2016). In this case, the Agency failed to provide Complainant with the effective
accommodation that would have allowed her to continue working.

Hence, we find that the Agency failed to provide Complainant with a reasonable accommodation
for her disability when it did not approve her for situational telework. See Jody L. v. Dep’t of the
Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018) (agency violated the Rehabilitation Act
when it denied Complainant with Paralysis the option of working from home on days when the
temperature is below negative twenty degrees.). In so finding, we remind the Agency that the
federal government is charged with the goal of being a “model employer” of individuals with
disabilities, which may require it to consider innovation, fresh approaches, and technology as
effective methods of providing reasonable accommodations. Rowlette v. Social Security
Administration, EEOC Appeal No. 01A10816 (Aug. 1, 2003); 29 C.F.R. §1614.203(a). We believe
that providing Complainant with this reasonable accommodation furthers this goal.

An agency is not liable for compensatory damages under the Rehabilitation Act where it has
consulted with complainant and engaged in good faith efforts to provide a reasonable
accommodation but has fallen short of what is legally required. See Teshima v. U.S. Postal Serv.,
EEOC Appeal No. 01961997 (May 5, 1998). In this case, the Agency was aware that Complainant
needed situational telework because of her medical conditions, and the Agency did not show
providing Complainant with telework as needed would have imposed an undue hardship.
Moreover, Complainant made the Agency aware that its offer of telework on an inflexible, rigid
basis did not meet her medical needs. Consequently, we find that the Agency is liable for
Complainant’s compensatory damages because it has not shown it acted in good faith in
accommodating Complainant.

CONCLUSION

The Commission REVERSES the Agency’s final decision finding no discrimination. We
REMAND this matter to the Agency to provide remedial relief consistent with this decision and
the Order herein.

ORDER
To the extent it has not already done so, the Agency is ordered to undertake the following remedial
actions:

1. Within 60 days of the date this decision is issued, the Agency shall provide (if
Complainant is still employed in the same position) Complainant with the
reasonable accommodation of a flexible telework schedule in which she is able to
situationally telework when she experiences symptoms related to her medical
condition that make it difficult for her to commute or work in the office.
Complainant shall cooperate with the Agency to determine when and how she will
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provide her supervisor with notice of her need to telework on work days. Also,
within 60 days of the date this decision is issued, the Agency shall provide
Complainant with a telework agreement granting her situational telework.

2. Within 120 days after this decision is issued, the Agency shall restore any leave or
pay lost (if any) by Complainant because of its failure to timely provide her with a
reasonable accommodation.

3. Within 90 days of the date this decision is issued, the Agency shall provide 8 hours
of in-person or interactive EEO training for S1, S2, and DRAD1 on the
Rehabilitation Act. The training shall emphasize the Rehabilitation Act's
requirements with respect to an Agency’s duties to provide reasonable
accommodations to individuals with disabilities.

4. Within 60 days of the date this decision is issued, the Agency shall consider taking
appropriate disciplinary action against S1, S2, and DRAD1. If the Agency decides
to take disciplinary action, it shall identify the action taken. If the Agency decides
not to take disciplinary action, it shall set forth the reason(s) for its decision not to
impose discipline. If any of the responsible management officials have left the
Agency's employment, then the Agency shall furnish documentation of their
departure date(s).

5. Within 90 days of the date this decision is issued, the Agency shall conduct a
supplemental investigation with respect to Complainant's claim of compensatory
damages. The Agency shall allow Complainant to present evidence in support of
her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No.
01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this
regard. The Agency shall issue a final decision addressing the issues of
compensatory damages within 30 days after the completion of the investigation.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include supporting documentation showing that the corrective action has been
implemented.

POSTING ORDER (G0617)
The Agency is ordered to post at its Harry S. Truman Building in Washington, D.C. facility copies
of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized
representative, shall be posted both in hard copy and electronic format by the Agency within
30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive
days, in conspicuous places, including all places where notices to employees are customarily
posted.
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The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or
covered by any other material. The original signed notice is to be submitted to the Compliance
Officer as directed in the paragraph entitled "Implementation of the Commission's Decision,"
within 10 calendar days of the expiration of the posting period. The report must be in digital
format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g).
ATTORNEY'S FEES (H1019)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. §1614.501(e)(1)(iii)),
she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The
attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment
Opportunity Commission, Office of Federal Operations – within thirty (30) calendar days of
receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance
with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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“Agency” or “department” means the national organization, and not the local office, facility or
department in which you work. 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

January 23, 2020
Date