Kirby S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 25, 2018

0120160280 (E.E.O.C. Sep. 25, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kirby S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120160280 Hearing No. 480-2015-00396X Agency No. 14-67865-03537 DECISION On October 22, 2015, 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 8, 2015, final decision concerning his 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 VACATES the Agency’s final decision and REMANDS the matter for a hearing in accordance with 29 C.F.R. § 1614.109 and our order below. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer, GS-0083-10, within the Provost Marshal’s Office at the Agency’s Marine Corps Air Station in San Diego, California. His functional title was Watch Commander. On October 1, 2014, Complainant filed an EEO complaint in which he alleged that the Assistant Operations Officer, his immediate supervisor (S1), and the Operations Officer, his second-line supervisor (S2), discriminated against him on the bases of disability (Sleep Apnea) and reprisal for prior protected EEO activity arising under the Rehabilitation Act when: 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. 0120160280 2 1. Beginning in July 2013 and continuing thereafter, S1 failed to change the start- times of operations meetings or otherwise adjust Complainant’s work schedule in order to accommodate his disability; 2. On August 12, 2014, Complainant was issued a ten-day suspension; 3. On September 16, 2014, Complainant was directed to undergo a fitness-for-duty examination (FFDE). 4. On October 5, 2014, S1 placed Complainant on a Performance Improvement Plan (PIP).2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew his request. Consequently, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In its FAD, the Agency found that Complainant was not an individual with a disability because he did not present enough evidence to establish that his sleep apnea substantially limited his major life activity of sleeping. It did not make a finding on whether Complainant was entitled to a reasonable accommodation, but rather found that he failed to establish a prima facie case of disability discrimination. Alternatively, the Agency found that Complainant was issued the suspension because of failure to follow directions and other performance issues, that he was sent for a FFDE in order to determine whether he could carry a weapon or operate a vehicle, and that he was put on the PIP because of ongoing performance deficiencies. The Agency also found that S1 did not become aware of Complainant’s sleep apnea until Complainant responded to the notice of proposed suspension on July 25, 2014. The Agency ultimately concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Our review of the record reveals the following. Complainant averred that on May 14, 2013, he was diagnosed with sleep apnea, which caused a serious disruption of his daily sleep patterns. IR 40-41; Supplemental Investigative Report (SIR) 17. A note from a medical clinic dated August 1, 2014 stated that Complainant was diagnosed with obstructive sleep apnea in June 2013, and that he was being treated successfully with continuous positive airway pressure therapy. SIR 52. A note from a Department of Veterans Affairs (VA) physician, dated September 8, 2014, addressed “to whom it may concern” stated that Complainant was being treated for his obstructive sleep apnea, that his condition was diagnosed on May 14, 2013, and that the condition was still present. SIR 53. A second medical note from a VA physician, dated December 31, 2014, stated: 2 Since the complaint was filed four days before the occurrence of incident (4), and since the Agency accepted incident (4), we will assume that sometime between October 1 and October 5, 2014, the complaint was amended to include incident (4). See IR 5. 0120160280 3 I am currently treating Complainant for his chronic sleep apnea, which is a serious, potentially life-threatening disorder. Complainant’s condition was diagnosed on May 14, 2013. Complainant’s condition does not preclude his ability for employment or render him a danger to himself or others. As an accommodation, Complainant should be given the opportunity to acquire eight hours of consecutive sleep a night so as not to disrupt his sleep patterns. SIR 54. Complainant averred that in accordance with recommendations made by S1, the number of officer platoons was reduced from four to three, and that this change resulted in chronic shortages of police and security personnel assigned the various shifts. At the same time, operations meetings, which had been held in the mornings at 8:00 AM were changed to every other Wednesday at 2:00 PM. Complainant had been assigned as Watch Commander of the night shift. These changes were effective on June 30, 2013. SIR 18-19. Complainant averred that the first operations meeting under the new schedule took place on Wednesday, July 3, 2013. IR 41; SIR 19. He stated that at the end of his shift, he would drive home around 7:45 AM and would fall asleep around 8:30 AM. He stated that he needed eight hours of sleep, but could only take four hours before he would have to get up to go to the 2:00 PM operations meetings. SIR 19-20. He further stated that during the meeting, he raised objections to the scheduling of the operations meetings at 2:00 PM, and that directly after the meeting on July 3, 2013, he met with S1 in S1’s office and informed him that he had sleep apnea and that it was medically necessary for him to have eight hours of sleep. He elaborated that he explained to S1 that sleep apnea disrupted his sleep, that his doctor had told him that it was extremely important that he have eight hours of uninterrupted sleep every night, and that the change in the meeting times from 8:00 AM to 2:00 PM was disrupting his sleep. He averred that as an accommodation, he asked that the meeting time be changed back to the previously scheduled start time of 8:00 AM or, in the alternative, that he be allowed to send one of his subordinates in his place. IR 41-43; SIR 19-20. He averred that S1 expressed complete indifference to his medical needs, that S1 refused to alter the start time for the operations meetings, and that S1 reiterated that Complainant would be required to attend all of the operations meetings. IR 42; SIR 20-22, 28. In particular, Complainant stated that there was never an interactive dialogue between him and S1 or anyone else in management regarding his need for a disability accommodation. He averred that no one ever requested medical documentation from him and that no one made any effort to discuss his need for an accommodation. SIR 21. He also averred that S1 and S2 repeatedly insisted that they had no obligation to consider or provide him with any accommodation. SIR 22. He cites incidents occurring on October 23 and October 30, 2013, when he was required to attend operations meetings. 0120160280 4 He averred that at those meetings, he again asked for changes in the meeting times or permission to send one of his subordinate officers in his place, and that S2, in the presence of S1, denied his requests. He stated that on both of those days, he was unable to obtain more than four hours of sleep prior to the meetings, and that as a result of sleep deprivation, he was five minutes late on both occasions and nearly involved in a vehicular collision on one of those occasions due to fatigue and lack of sleep. SIR 21. He averred that after the operations meeting on November 20, 2013, he again requested S1 for an accommodation, which S1 denied, calling his condition an invalid excuse for being late. SIR 21. Complainant averred that S1 constantly harassed him after he asked for an accommodation of his sleep apnea in July 2013, and that this harassment had been ongoing. He also raised the issue of reprisal, stating that S1 made no effort to hide the fact that Complainant’s repeated efforts to raise the issue of accommodation had made him angry, and that S1’s behavior toward him had changed in ways that reflected that anger. SIR 22. He averred that week after week, S1 began subjecting him to a constant barrage of unmerited criticisms, despite the fact that his disciplinary record had been spotless. SIR 22, 24. On November 27, 2013, S1 issued Complainant a letter of caution, noting that Complainant had missed operations meetings and was late to others. Complainant was also cautioned for not properly scheduling the officers under his supervision, for missing deadlines, for appearing for duty in an unkempt uniform, for improper supervision of his platoon, and for “less than desirable” encounters with three senior Marine NCOs. SIR 55-56. Complainant averred that on March 6, 2014, S1 accused him of falling asleep in a training class the previous day and of leaving class during the last hour of training. He responded to the accusation by pointing out that he and another Watch Commander were under no obligation to attend that portion of the class, that they had informed the instructor that they would be leaving before the last hour, that the instructor did not object, and that S1 rebuked only him, and not the other Watch Commander, for missing the non-mandatory part of the training. SIR 22. On April 22, 2014, S2 issued Complainant a second letter of caution. In this letter, S2 stated that Complainant failed to supervise his watch and ensure that they were fulfilling their basic required duties. S2 further noted in the letter that as a result of Complainant’s performance deficiencies, the organization “twice failed to meet its obligations, bringing embarrassment and indignity to the unit.” IR 57. Complainant averred that on May 21, 2014, at the conclusion of an operations meeting, S1 again accused him of falling asleep in a training class. He stated that although he was very drowsy and unable to concentrate, he did not fall asleep. He also admitted to leaving the class approximately 45 minutes early, noting that he had taken the class many times before and that he had gone to the Watch Commander’s office to complete official paperwork. SIR 23. He responded to S1 that his sleep apnea was not under control, and that S1 once again dismissed his medical condition, insisting that it did not merit accommodation. S1 also informed him that he was charged with absence without leave (AWOL) for leaving class two hours early. SIR 24. 0120160280 5 On June 25, 2014, S1 issued Complainant notice of a proposed ten-day suspension. IR 24. The charges listed in the proposed suspension included failure to follow directions, failure to be at his assigned work place, and failure to follow leave procedures. In the specifications, S1 stated that: Complainant failed to provide written counseling to one of his subordinates who had failed to pass a body mass index requirement; that he had allowed his watch to fall below the minimum manpower required to maintain adequate security on two occasions; that his log-checking rate had fallen to 77%, which was below the minimum 90% rate; that he had fallen asleep and had been AWOL during the May 21, 2014 training class; that he failed to attend a mandatory supervisor training on June 12, 2014, for which he was marked AWOL; and that on June 12, 2014, he left work without his request for annual leave being approved. IR SIR 58-62. In his response dated July 25, 2014, Complainant reiterated that he had repeatedly asked that his sleep apnea be accommodated, that the matters that gave rise to the two letters of caution and the incidents that occurred between August and November 2013 were all attributable to his lack of adequate sleep caused by his sleep apnea, and that all three platoons were inadequately staffed due to the schedule change, which reduced the number of platoons from four to three. SIR 42, 125-26. As to one of the particular charges, Complainant denied that he fell asleep in class on May 21, 2014, but acknowledged that he was drowsy. He also denied that he left training classes early without authorization. SIR 151-152. An officer who had sat next to Complainant in the May 21, 2014 class averred that Complainant did not fall asleep. SIR 92. Nevertheless, on August 12, 2014, the Deputy Chief of Police concurred with the proposal and issued Complainant a notice of 10-day suspension, noting that Complainant failed to follow supervisory instructions on three occasions and that he had been previously counseled. SIR 63-64, 67. According to a supervisor’s medical referral report dated July 30, 2014 and prepared by S1, Complainant had brought to management’s attention the fact that he had sleep apnea, and that this was a contributing factor in his falling asleep at work and reporting late. IR 66-69. S1 noted that Complainant was the Watch Commander of a police shift and was required to patrol in an emergency vehicle, carry a weapon, and respond to critical incidents. SIR 68. In a memorandum addressed to Complainant dated September 15, 2014, S1 stated the following: You brought to Management’s attention that you have a documented VA disability of sleep apnea. I was not aware of this. Nor was I aware that I was providing you an accommodation for this disability when, in the past, you requested leave for the first hour of your shift on specific days after your college night class. I need you to provide documentation for your disability so that I can evaluate your ability to perform your required duties and any accommodations that may be necessary. So far, you have not done so. Please provide me with documentation of your disability. Since you have brought this to my attention, I have concerns for your safety and the safety of others. Furthermore, your condition raises a direct question about your continued capacity to meet the physical or mental requirements of your position. Accordingly, an appointment has been made for you to report to the Miramar occupational health clinic on September 16, 2014, so that your fitness for duty can be evaluated. 0120160280 6 SIR 66. The Agency physician who examined Complainant reported that since he had never previously examined Complainant, he could not make any medical determination as to whether his sleep apnea affected his work performance, and that such a determination should be left to a physician with expertise in sleep apnea. SIR 65. In a memorandum dated October 3, 2014, and addressed to Complainant, S1 stated: [Y]ou identified that you have a medical condition, sleep apnea. I issued the FFDE because of the nature of your position as an armed police officer, because your position is subject to medical testing and because [you] suggest [ed that] you require a reasonable accommodation. My letter directed you to provide medical information that would identify any necessary accommodations and enable management to ensure that you can safely perform your duties. On October 1, 2014, you informed me that you do not intend to provide this information because you do not have to. At this point, because you do not intend to provide information identifying a necessary reasonable accommodation, I am concluding that you are not requesting one and do not need one. If my conclusion is wrong, then please identify the accommodation and provide the necessary supporting medical documentation. Otherwise, I expect you to perform your duties without a reasonable accommodation. On September 16, 2014, your attorney provided medical documentation to the EEO counselor identifying that your sleep apnea is being successfully treated. In light of that information, it will not be necessary for you to undergo a medical examination. SIR 69. When asked by the EEO investigator when he first became aware that Complainant had sleep apnea, S1 insisted that he did not become aware of Complainant’s condition until July 25, 2014, when Complainant submitted his response to the proposed ten-day suspension. IR 66-69. Complainant averred that he initiated contact with an EEO counselor concerning the instant complaint on August 26, 2014, and that on September 15, 2014, S1 issued a notice ordering him to undergo the FFDE. According to Complainant, S1’s notice specifically identified sleep apnea as the basis for ordering the FFDE. Complainant stated that for months, S1 ignored his repeated requests to accommodate his sleep apnea, and then referred him for the FFDE when he filed an EEO complaint. SIR 25. He further stated that he never was a danger to himself or others, and that S1 never requested medical documentation from him prior to ordering him to report for the FFDE. SIR 27. In his rebuttal affidavit, Complainant averred that S1 sent him for the FFDE in an effort to find an excuse to remove him from duty rather than to provide an accommodation. SIR 153. In his performance appraisals for fiscal years 2013 and 20143, Complainant was rated acceptable on all three elements of his performance plan: supervision; law enforcement; administration. IR 173, 178, 189, 193, 198, 209. Nevertheless, in a memorandum dated October 5, 2014, S1 issued 3 Fiscal years run from October 1st through September 30th of the following year. 0120160280 7 Complainant a notice of unacceptable performance in the critical element of supervision and of his placement on a PIP. IR 70; SIR 24. S1 identified several incidents as the basis for the PIP, including: failure to schedule physicals for several subordinate officers after being directed to do so on June 26, 2014; failure to assign officers to a security gate on July 4, 2014, despite being ordered to keep that particular gate open every day; failure to properly manage subordinates’ leave and ensure the shift was properly staffed; scheduling weapons qualifications for several of his officers two days late; being five minutes late in the execution of morning colors on July 21, 2014; failure to achieve a 90% logbook check rate at another gate; and failure to follow Watch Commander protocol by visiting each gate at least twice during his shift. IR 71-72. In his affidavit, Complainant identified what he characterized as a number of deficiencies in the PIP. Regarding the delinquent physicals charge, Complainant stated he was instructed to schedule the appointments and let S1 know by July 8, 2014 when those appointments were scheduled. SIR 144. He further stated that on Sunday, July 6, 2014, he instructed his four subordinates to schedule their physicals. SIR 74-75. All four provided written statements under penalty of perjury that Complainant gave them their instructions to schedule physicals on July 6, 2014. SIR 85-86, 88, 95, 97-98, 100, 106-08, 111, 139. He averred that despite having informed S1 on July 8, 2014, that his subordinate officers’ physicals had been scheduled, S1 sent him an email asking why he had not followed his instructions. SIR 75-77. As to the charge that he failed to assign officers to the security gate, Complainant admitted not doing so, but maintained that he was acting within his discretion in accordance with common practice, which was not to open the gate during weekends and holidays. SIR 77-78. Concerning the charge that he failed to manage his subordinates’ leave and ensure proper staffing of the shift, Complainant stated that he called in sick on the first day of a shift change, but that he had notified S1 early enough so that he would be able to assign another Watch Commander or have other personnel come in. SIR 78-79. With regard to the charge that he was late in scheduling his officers for weapons qualification, Complainant pointed out that S1 emailed Complainant on Thursday, July 17, 2014, a day on which he was not working, that he did not receive the email until he returned to work on Sunday, July 20, 2014, and that he never received any calls or texts from S1 notifying him that this was a particularly urgent matter. In addition, he noted that another Watch Commander who failed to provide notice to his subordinates regarding weapons qualification was not reprimanded by S1. SIR 79-81. Regarding the charge that he was five minutes late in executing the morning colors, Complainant averred that the responsibility for raising and lowering the national ensign lies with the Guard Command and not with law enforcement Watch Commanders, and consequently, was outside his area of responsibility. SIR 81-83. Finally, as to the charge of not checking gate logbooks, Complainant stated that he was the only Watch Commander against whom this policy was rigorously enforced by S1. SIR 83-84. Nine witnesses, many of whom were Complainant’s subordinates or who had otherwise worked with him, provided, through Complainant’s attorney, written declarations under penalty of perjury in support of Complainant. They testified that they had never seen Complainant perform unprofessionally, that Complainant had been diagnosed with sleep apnea around July 2013, and that beginning in July 2013, S1 began to treat Complainant more harshly than other employees. 0120160280 8 Several of these witnesses stated that S1 had lied and had made false accusations against Complainant. SIR 30-50, 89, 119-23, 140-41. In his rebuttal affidavit, Complainant averred that he resigned under protest from his position, citing the on-going retaliatory harassment from S1 as the reason for his resignation. SIR 150. However, he did not provide the date of his resignation.4 CONTENTIONS ON APPEAL On appeal, Complainant maintains that the Agency improperly denied his request for accommodation of his disability starting in July 2013, and had engaged in retaliatory actions which created a hostile environment and included the 10-day suspension, the FFDE, and the PIP. The Agency filed an opposition brief to Complainant’s appeal in which it raised two principal arguments. First, the Agency argues that Complainant failed to cooperate with the EEO investigator when, toward the end of the 180-day period for conducting the investigation, he submitted sworn statements from nine witnesses who were his current and former subordinates as attachments to his notarized affidavit. By doing so, the Agency argues, Complainant “salted the record” with one-sided statements that were not subject to the investigator’s follow-up questions. Second, the Agency contends that none of those witnesses actually saw Complainant report his sleep apnea to S1 or request an accommodation in July 2013, as Complainant maintains. The Agency also argues, implicitly, that because the nine witnesses had worked under Complainant, they were biased against management. Consequently, the Agency contends, those statements should be accorded no evidentiary weight. ANALYSIS AND FINDINGS To succeed 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, 802 (1973). This analysis applies to disparate treatment claims brought under the Rehabilitation Act. Prewitt v. United States Postal Service, 662 F. 2d 292, 310 (5th Cir. 1981). Under accommodation theory, agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with 4 There are no indications in the record that Complainant sought to amend his complaint to include a claim of constructive discharge. Should he wish to pursue such a claim, Complainant is advised to contact an EEO counselor. 0120160280 9 Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). In order to prevail in a claim brought under the Rehabilitation Act, Complainant would have to show either that the Agency subjected him to disparate treatment because of his disability, that it retaliated against him for engaging in activity protected by the Rehabilitation Act, or that it failed to accommodate his disability. Unfortunately, the evidentiary record in this case is woefully inadequate to support a determination as to: 1) whether Complainant’s sleep apnea constitutes a disability within the meaning of the Rehabilitation Act; 2) when S1 had become aware that Complainant had sleep apnea; and 3) when Complainant had actually requested a reasonable accommodation. Particularly troubling are the statements from Complainant’s nine subordinates. We find that the credibility and trustworthiness of those statements is questionable because Complainant supervised the authors of those statements, which raises the possibility of bias and coercion. These witness statements are also problematic because of the manner in which they were obtained. Rather than being collected by the EEO investigator in the normal course of the investigation, they were submitted as attachments to Complainant’s affidavit, which effectively denied the investigator the opportunity to ask follow-up questions. The first issue to address is whether Complainant’s sleep apnea is a disability within the meaning of the Rehabilitation Act. A disability is: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. 29 C.F.R. § 1630.2(g). Factors to determine whether an individual is substantially limited in a major life activity include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; (3) the permanent or long- term impact, or the expected permanent or long term impact of or resulting from the impairment. Arnoldo E. v. Dept. of Justice, EEOC Appeal No. 0120121034 (Oct. 15, 2015) citing 29 C.F.R. § 1630.2(j)(2). Sleeping is a major life activity. See Romero v. Social Security Administration, EEOC Appeal No. 0120102532 (Aug. 7, 2012) citing EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at Questions 3, 4 (Mar. 25, 1997). Therefore, to the extent that Complainant’s sleep apnea caused him to experience severe disruptions in his sleep patterns on a chronic or long-term basis, it would constitute a disability. See e.g. Genton v. Dept. of the Treasury, EEOC Appeal No. 01A53115 (Aug. 2, 2006) citing Enforcement Guidance, supra, at Question 11; Lau v. Dept. of Justice, EEOC Appeal No. 01A32849 (Jan. 3, 2005), request for reconsideration denied, EEOC Request No. 05A50495 (Apr. 14, 2005); Palfy v. U.S. Postal Service, EEOC Appeal Nos. 01A10087 & 01993950 (June 17, 2002). While many of Complainant’s witnesses stated that they had observed Complainant appearing drowsy, there was no medical documentation describing the nature and extent of the impact of his condition upon his sleep patterns. Consequently, we cannot determine whether Complainant was an individual with a disability. The second question left unanswered is when S1 had become aware that Complainant had sleep apnea and the closely related issues of when Complainant had actually requested a reasonable accommodation from S1 and whether the parties engaged in the interactive process. 0120160280 10 Complainant maintained that he first raised the issue with S1 right after a meeting held on July 3, 2013, and that shortly after this meeting, S1 began to treat Complainant badly. S1, on the other hand, stated that he first became aware around July 2014 that Complainant had sleep apnea, after he had already issued the proposed 10-day suspension to Complainant. Many of Complainant’s witnesses appeared to corroborate Complainant’s version of events in their statements. But as discussed above, the reliability of these witness statements has been undermined due to their possible bias against management and the manner in which their statements were obtained. After reviewing the record in its entirety, we have determined that a hearing before an AJ is necessary in order to clarify the record and make credibility determinations regarding all factual matters relevant to the resolution of this dispute, including but not limited to: whether Complainant’s sleep apnea constitutes a disability; when Complainant first reported his condition to S1; when Complainant had first requested a reasonable accommodation; and whether and to what extent Complainant and S1 engaged in the interactive process regarding Complainant’s reasonable accommodation request. Also at issue are the propriety of the 10-day suspension, the FFDE, and the placement of Complainant on a PIP, and whether those actions were due to disability or reprisal discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we VACATE the Agency’s final decision and REMAND the matter for further processing in accordance with the order below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Los Angeles District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) 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 0120160280 11 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. 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. 0120160280 12 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. “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 September 25, 2018 Date