Leonie L.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 21, 2016

0120140827 (E.E.O.C. Dec. 21, 2016)

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

Leonie L.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120140827

Hearing No. 430-2012-00147X

Agency No. 110006601801

DECISION

On December 20, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s November 12, 2013, final decision 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. and 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 AFFIRMS the Agency’s final decision.

BACKGROUND

Prior to the events giving rise to this complaint, Complainant worked as a Science Advisor at
the Department of the Air Force, Air Force Research Lab (AFRL), Wright-Patterson Air
Force Base, located in Ohio. During the relevant period, Complainant worked for the
Department of the Navy, U.S. Joint Forces Command (JFCOM) in Norfolk, VA through a
Memorandum of Agreement (MOA) between JFCOM and AFRL. On April 22, 2011,
Complainant filed an EEO complaint alleging the following:

(1) She was discriminated against based on sex (female) when from June 10, 2010, to
December 8, 2010, she was subjected to an ongoing pattern of harassment which

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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created a hostile work environment, as follows: (a) on June 25, 2010, and on or around
June 10, 2010, the Chief, Science and Technology Integration Division (S1) took away
some of her duties and assigned them to a male Science Advisor (SA); (b) on October
4, 2010, S1 retained her evaluation for 2010, however, he did not retain the SA's
evaluation; (c) on November 19, 2010, S1 harassed her about her salary, but did not
harass the male employees; (d) on November 22, 2010, and on or around June 25,
2010, S1 assigned the male Science Advisors jobs for which she was more qualified;
(e) on December 8, 2010, and November 22, 2010, she was unfairly compared to SA
when he was given six months to prepare his product, while she was only given one
month; and (f) on December 8, 2010, S1 required her to write a letter to her AFRL
supervisor (AFRLS1) criticizing the AFRL when they did not have a solution for a
JFCOM issue, but did not require SA to do so.

(2) She was discriminated against based on physical disability (hearing impairment,
lymphedema) when from November 19, 2010 to January 28, 2011, she was subjected to
an ongoing pattern of harassment which created a hostile work environment, as follows:
(a) on November 19, 2010, S1 lectured her for 20 minutes about not being able to take
sick leave while on annual leave; (b) on November 19, 2010, S1 pressed her to describe
her physical therapy regimen, even after she said it was too embarrassing; (c) on
September 21, 2010, October 21, 2010, November 19, 2010, and November 22, 2010,
S1 would not grant her request for a one-hour later start time; (d) on September 21,
2010, October 21, 2010, November 19, 2010, and November 22, 2010, S1 did not
make her aware of JFCOM's process for requests for reasonable accommodation; and
(e) on January 28, 2011, and on or around June 10, 2010, S1 made angry, belittling,
loud comments about her hearing impairment.

(3) She was discriminated against when from June 25, 2010 to March 31, 2011, she
was subjected to an ongoing pattern of harassment which created a hostile work
environment, as follows: (a) on June 25, 2010, S1 assigned the Coalition Warfare
Program (CWP) to SA (basis - sex); (b) on August 25, 2010, S1 stated that the Deputy
Chief of Staff (DCOS) and the Chief of Staff (COS) had changed their minds about
realigning her (basis - disability); (c) on September 18, 2010, S1 went to the CWP
kickoff meeting instead of sending her, when she had gone the two previous years
(basis - sex); (d) on September 20, 2010, S1 berated her after she suggested she owed
the AFRL additional time (basis - sex); (e) on September 20, 2010, S1 made derogatory
comments about her temporary duty (TDY) assignment (basis - reprisal); (f) on
November 18, 2010, S1 required the staff to start scheduling any leave or TDY of more
than one day, two months in advance (basis - reprisal); (g) on November 22, 2010, S1
told her that he, DCOS, and COS wanted to "get rid of her” (basis - reprisal); (h) on
January 28, 2011, S1 tried to prevent her advancement to management of the Protection
of Human Subjects in Research Program (basis - reprisal); and (i) on March 31, 2011,
her title of “JFCOM Science Advisor” was taken away (basis – reprisal).

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At the conclusion of 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 timely requested a hearing,
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

Pursuant to the MOA, Complainant was assigned as a Science Advisor/Commander’s
Representative (CC Rep) to JFCOM. Pursuant to the MOA, AFRL was responsible for
performing all supervision of Complainant, including evaluations with JFCOM input, leave
approval, training approval, maintenance of associated records, and funding her salary,
permanent change of station (PCS) costs, training costs, and TDY costs related to her
AFRL/CC Rep duties. JFCOM responsibilities included providing local operational control
and oversight over Complainant’s activities while she was assigned to work in JFCOM spaces,
providing input to her AFRL supervisor for her annual evaluation, allowing her to attend
JFCOM meetings as appropriate to maintain cognizance of JFCOM science and technology
related needs/issues, and funding TDY costs related to her JFCOM Science Advisor duties.

Complainant contacted the EEO office in November 2010, but did not file an EEO complaint
at that time. On February 8, 2011, she raised some EEO concerns, including a request for
reasonable accommodation and allegations against S1 making angry comments about her
hearing being insufficient, to the COS via email, on which S1 was copied. Complainant
initially contacted an EEO counselor regarding the issues in the instant complaint on March 11,
2011. S1 maintains that he was not aware of Complainant's contact with the EEO Office on
November 10, 2010, but acknowledges that he was aware of Complainant's EEO concerns in
her February 8, 2011, email to the COS. He maintains that he did not become aware of
Complainant's EEO contact regarding the instant case until the EEO Counselor contacted him
on or about April 5, 2011, and informed him that Complainant contacted the EEO office on
March 11, 2011. Complainant does not refute S1's testimony in this regard.

Claim 1

Complainant alleges that S1 told her that SA would take over the Pentagon's Director,
Operational Test and Evaluation (DOTE) meetings, despite her having more education,
experience, and credibility in the test and evaluation (T&E) community. She asserts that S1
told her that SA had a certificate in T&E, while she did not. She also alleges that around June
2010, S1 told her that SA would take over the Coalition Warfare Program (CWP) for JFCOM.
Complainant states that SA had no experience with the CWP, while she had been with the
program for almost two years. She contends that S1 told her she could not work on CWP
because in August 2010, the Secretary of Defense (SECDEF) announced his recommendation
to disestablish JFCOM in 2012, and SECDEF stated that planning for FY12 and beyond was
no longer prudent and CWP was focused on FY12 and beyond; thus, there would be no CWP.
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Complainant also alleges that S1 asked for her evaluation and the objectives against which her
evaluation were produced so he could provide input to her evaluation. She asserts that her
evaluation and objectives were private information covered under the Privacy Act, and she did
not want S1 to have any of her personal information. Complainant asked her second-level
supervisor at AFRL (AFRLS2) to not give her personal information to S1, but S1 persuaded
AFRLS2 to give him her evaluation.

Complainant further alleges that on November 19, 2010, S1 said to her, in a snide voice, “You
make a lot of money, don't you?” She alleges that around June 25, 2010, S1 assigned SA the
Training Portfolio, for which SA had little or no experience, in contrast to her education and
experience. She further alleges that S1 assigned SA the Experimentation Portfolio, even
though she had significant and substantial education and experience in the area. She asserted
that S1’s reason for the assignments was that he could not wait for her to finish the T&E
experiment for the Chief Knowledge Officer (CKO).

Complainant alleges that on November 22, 2010, and on December 8, 2010, she was unfairly
compared to SA, when he had six months to prepare his product for the Pentagon’s Science
and Technology Integrated Priority List (STIPL), while she only had two months. When she
inquired with Army and Air Force as to what they were doing to meet JFCOM’s needs, she
found that Air Force was not doing anything and had nothing to offer in the areas JFCOM
needed, which she confirmed with AFRL. Complainant states that S1 told her to write a letter
to her boss at AFRL criticizing AFRL for not solving JFCOM’s problems listed on the STIPL.
When AFRL advised her that they had no products they could offer to solve JFCOM’s
problems, she told S1 she could not write a letter criticizing AFRL.

Claim 2

Complainant asserts that on September 28, 2010, she told S1 she was setting up medical
appointments while planning to be in Minnesota for the upcoming holidays. She alleges that
on November 19, 2010, S1 lectured her for 20 minutes on how she could not take vacation for
sick leave, which made no sense to her. Complainant alleges that on November 19, 2010,
while in S1’s office discussing core hours, S1 asked her to describe her physical therapy,
which Complainant told him was embarrassing. She also alleges that despite her
embarrassment, S1 pressed her to describe it. Complainant states that on September 21, 2010,
October 21, 2010, November 19, 2010, and November 22, 2010, S1 would not grant her
request for a one and a half hour later start time. She contends that she wanted to start at 10:00
a.m. so she could go to physical therapy in the morning. Complainant alleges that S1 did not
tell her about JFCOM’s process for requesting reasonable accommodation, but merely insisted
that everyone had to be present during the core hours, at least by 8:30 a.m. The record shows
that S1 approved Complainant to come in at 9:00 a.m. Complainant acknowledges that it
might have been true that she did not ask to come in at 10:00 a.m., but asserts it was because
S1 repeatedly insisted that she come in at 8:30 a.m.

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Complainant also asserts that around summer 2010, during a staff meeting, S1, in a frustrated
and sarcastic voice said to her, “do you have your hearing aids in?” She further alleges that
on January 28, 2011 (while in S1’s office) he asked her something, and when she took a
moment to understand and was about to respond, S1 did not wait for her response but yelled at
her angrily and sarcastically, “Can you hear me?,” “How many times have you asked people
to repeat?,” and pausing after each word “Do you have your hearing aid in?”

Claim 3

Complainant alleges that she was discriminated against based on sex when on June 25, 2010,
S1 assigned the CWP to SA. She contends that in an email in January 2011, S1 told AFRLS1
that the Science Advisors had no meaningful work assignments. Complainant asserts that in
early August 2010, she had requested the COS to realign her away from S1 and under the
CKO instead, and that S1, the CKO, and AFRLS1 agreed. Complainant also states that on or
about August 25, 2010, S1 told her that he, the DCOS, and the COS no longer supported her
realignment. She further alleges that this was disability discrimination, not reprisal, because it
followed her taking sick leave for a cancer follow-up appointment.

Complainant alleges that on September 18, 2010, S1 went to the CWP kickoff meeting, instead
of sending her, when she had attended the previous two years. She states that this was sex
discrimination, not reprisal, because it occurred before she came to work for S1 on September
20, 2010. Complainant alleges that on September 20, 2010, after she told S1 that she owed
some time to AFRL after working for JFCOM for four months, S1 sarcastically stated that the
DCOS disagreed completely with her work on the JFCOM portal, and that they needed “to get
down the road to business.” Complainant further asserts that this was sex discrimination, not
reprisal. Complainant alleges reprisal when, on September 20, 2010, two days after she had
been TDY to Washington, D.C., S1 sarcastically stated, “We need to ensure efficient use of
TDY.” Complainant also states that several times, S1 reminded her that he had “operational
control” over her.

On November 23, 2010, S1 issued an email to all division employees (including Complainant)
that discussed work schedules, adherence to core hours, and which stated that, as a planning
guide, an extended absence (more than a day) ought to be coordinated two months in advance,
and approved not later than two weeks in advance. Complainant asserts that this occurred four
days after she returned from Wright-Patterson AFB. She also alleges that even though S1 sent
the email to everyone, he was singling her out and retaliating because she went on TDY.
Complainant further alleges that on November 22, 2010, S1 told her that he, the DCOS, and
the COS wanted to “get rid of” her. She asserts that S1 also said several times that her
position would “go away” but it was not up to S1 to decide or announce that. Complainant
contends that after S1 had stated that the Science Advisors had no meaningful work
assignments, the Surgeon’s Office asked her for input to JFCOM’s management plan for the
Protection of Human Subjects in Research program. She maintains that she provided input and
the Surgeon’s Office subsequently asked her to manage the plan while JFCOM was going
through disestablishment. Complainant alleges that S1 emailed the Surgeon’s Office degrading
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their offer to allow her to assist them but the Surgeon’s Office disagreed and S1 gave in.
Complainant further asserts that on March 31, 2011, her title of JFCOM Science Advisor was
taken away. Her request to get that title back was denied.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). 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”).

Prima Facie Case of Discrimination/Reprisal

Disability/Reasonable Accommodation Claim

Complainant claims that her medical conditions are hearing loss and lymphedema, both of
which are permanent. Regarding her hearing loss, she maintains that while hearing aids help,
her hearing will never be normal, and communication is a challenge if people have high
voices, or if they do not enunciate, or if they whisper. Complainant asserts that her
lymphedema limits her ability to lift, carry, push and pull. It also causes severe prolonged
shaking and repetitive movements with her left arm and hand. If she needs to use a
compression bandage, she loses dexterity in her fingers, hand, and arm and repeated use of her
fingers, hand, and arm, such as picking things up or use of a keyboard, is painful. We agree
with the Agency that the record supports the finding that Complainant is an individual with a
disability under the Rehabilitation Act.

Complainant alleges that on September 21, 2010, October 21, 2010, November 19, 2010, and
November 22, 2010, S1 would not grant her request for a start time later than 8:30 a.m.,
which would have accommodated her physical therapy schedule. We agree with the Agency
that the record is devoid of medical or other documentation to support Complainant’s
contention that she needed to have the start time of 10:00 a.m. or that she ever requested such
a start time. In addition, the record shows that S1 did approve her to start work at 9:00 a.m.
which was beyond the start of the office core hours. Accordingly, we agree with the Agency’s
conclusion that Complainant failed to establish that the Agency failed to provide her with a
reasonable accommodation.

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Reprisal

The record reflects that of the five incidents in Claim 3 that Complainant alleged were based
on reprisal (Claims 3e through i), four of those alleged incidents (e through h) occurred
between September 20, 2010, and January 28, 2011 (i.e., prior to Complainant’s February 8,
2011, email to the COS, and prior to her March 11, 2011, contact with the EEO Counselor).
Since these claims predate Complainant’s EEO activity, we agree with the Agency’s
conclusions that she failed to establish a prima facie case of reprisal discrimination for Claims
3e through h.

Legitimate Non-Discriminatory Explanation/Pretext

Claim 1

S1 explains that Complainant was aligned under his office on September 20, 2010. Prior to
that, she worked on projects for the Knowledge Management Office. S1 also states that
between June 7, 2010 and September 20, 2010, he and other members of his office handled the
Science and Technology Division responsibilities. S1 states that before and after September
20, 2010, the duties for the Science Advisors were determined based on several factors: to
allow the best assignments, and to meet the Command’s interests/needs, continuity of effort,
personal skills, personal desires, and interpersonal relationships. S1 states that per the MOA,
the Agency was responsible for providing input to AFRLS1 for the annual evaluation. He
asserts that he did that for his assigned personnel, including Complainant. S1 further states
that AFRLS1 acknowledged the input he provided for Complainant’s 2010 evaluation and
noted that it was helpful. He maintains that he never saw or received a copy of Complainant’s
2010 evaluation. S1 also denies that he harassed Complainant or anyone else about their
salary. He states that he did not assign jobs to the Science Advisors in a discriminatory
manner. In addition, S1 asserts that he assigned duties to the Science Advisors objectively,
and in accordance with considerations that included the Command’s interests/needs, continuity
of effort, personal skills, personal desires, and interpersonal relationships.

S1 also denies that he unfairly compared Complainant to SA. He maintains that he did not
require Complainant to write a letter to AFRLS1 criticizing AFRL for not having a solution to
a JFCOM issue, while not requiring SA to do so. He explains that Complainant’s performance
objectives with AFRLS1 needed well-defined objectives for the future in support of JFCOM,
in accordance with the MOA, which he notes needed attention.

Claim 2

S1 denies that he lectured Complainant about not being able to take sick leave while on annual
leave. He denies that he pressed about her physical therapy regimen after she said it was too
embarrassing. He states that as a normal office matter, and to adequately support the
command with Science Advisor assistance, he asked all office personnel to identify their work
week schedule and hours. When Complainant noted that she did physical therapy before work
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and arrived at the office at 11:00 a.m. daily, he asked whether the therapy could be done
earlier or later in the day. S1 states that during the entire period between September 21, 2010
and November 22, 2010, Complainant's time and attendance was approved and accounted for
by AFRLS1. S1 maintains that in deference to Complainant, and without discourse, the
recurring office synchronization meeting was moved to the afternoon to accommodate
Complainant’s morning arrival schedule. S1 denies that he made any belittling comment about
Complainant's hearing impairment. He states that he had a documented hearing impairment
and, as such, he personally recognized that handicap. He states that on an occasion when
Complainant had a problem comprehending a conversation, he recommended that she wear her
hearing aids. S1 further states that at every opportunity when he and Complainant needed to
engage in dialogue, he conducted it in his office to allow the level of discussion to be
somewhat louder than a normal cubicle volume, and to avoid inducing discomfort on
Complainant or the others in the cubicle.

Claim 3

Regarding Complainant’s claim that on June 25, 2010, S1 reassigned the CWP to SA, S1 states
that Complainant arrived to his office on September 20, 2010, and that office responsibilities
before her arrival were taken care of by those who were so assigned. He states that
Complainant had expressed a desire to be reassigned from SA duties to work in the Knowledge
Management Office. S1 told Complainant that was acceptable to him, contingent upon AFRL
providing an acceptable replacement in order to meet JFCOM’s Science Advisor commitment
as identified in the MOA. However, AFRL could not provide a replacement, so AFRL did not
allow Complainant to work for the Knowledge Management Office in lieu of as a Science
Advisor with the Science and Technology Division.

The COS states that his predecessor had realigned the Science Advisors in 2010 to provide the
best functional capability and support for both the Command and the services that they
represented. When Complainant requested reassignment under the CKO, the COS considered
the mission implications of such a move and concluded that realigning Complainant under the
CKO provided no functional value to either JFCOM or the Air Force, and would only degrade
the interface between JFCOM and AFRL, which was the reason for her assignment.

The COS also states that he looked for immediate options to temporarily relocate Complainant
within the command while conducting an informal review of her case. That would have
allowed Complainant to continue her mission while getting her away from the immediate
problem. The COS states that Complainant declined his offers.

S1 also states that in August 2010, the Secretary of Defense announced his recommendation for
disestablishment of JFCOM by October l, 2010, at which time all JFCOM activities would
cease. On September 23, 2010, the CWP held its kickoff conference for the FY12
submissions. S1 states that he attended that conference, instead of Complainant, to ensure that
the closeout of JFCOM responsibilities was properly understood and handled. S1 states that
when Complainant reported to the office in September 2010 after working with the Knowledge
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Management Office, she noted that she felt she had spent too much time outside of her duties
for AFRL, and wanted to adjust the agreement of 50% of her time to AFRL duties and 50% of
her time to JFCOM duties. S1 did not concur that the agreement needed to be changed to have
another local arrangement outside of the MOA. S1 maintains that in his conversations with
AFRLS1, he never raised the need for Complainant to spend more time doing AFRL duties or
that she spent too much time doing JFCOM duties.

S1 also maintains that he did not make any derogatory comments about Complainant’s TDY
assignment. Regarding his requirements concerning scheduling leave and/or TDY, S1 states
the office was a support activity that had as a principal factor the need to be at the work
environment with the supported activities, as directed by the COS. As such, the staff needed
to accommodate JFCOM’s core hours as best as possible. S1 gave his staff the opportunity to
establish their work schedules, and he noted that work absences should be coordinated and
approved in advance with as much time as possible, to enable the best accommodation for the
absence. He explains that as a planning guide, he noted that an extended absence of more than
a day ought to be coordinated two months in advance in order to get it to the employee’s
respective approving authority, and then any projected absence of a day or more should be
approved not later than two weeks in advance. He advised all employees that common sense
should prevail, and that they should let him know as soon as was practical when the guidelines
could not be met for whatever reason. S1 notes that Complainant’s leave and absences were
arranged and approved by AFRL.

S1 also denies that he told Complainant, NCOS, or the COS that he wanted to get rid of
Complainant. He did tell Complainant, at some point, that her position would go away as the
result of the JFCOM disestablishment. S1 further denies there was discrimination in
connection with the actions in reference to the Protection of Human Subjects in Research
Program (PHSR). On January 28, 2011, and in concert with the implementation of the
JFCOM disestablishment, he told Complainant she could remain involved in the program as
she had been in the past, but taking on new responsibilities (as PHSR manager) was contrary to
the JFCOM disestablishment and intent. S1 states that the JFCOM office of primary
responsibility, the Office of the Surgeon, attempted to follow up on actions and solicited
support from Complainant. However, he and the JFCOM disestablishment implementation
team planned for the discontinuance of the activities, closing out ongoing actions, not
expanding commitment, and transferring functions.

The COS also denies that he ever stated that he wanted to get rid of Complainant. He states
that during the JFCOM disestablishment process from October 2010 to May 2011, the
implementation planning team determined that the Science Advisors would no longer be
required, and the Science Advisors and their parent organizations were advised of that decision
when it was made.

Regarding Complainant’s claim that on March 31, 2011, her title of Science Advisor was taken
away, S1 states that in part, Complainant’s assignment from AFRL was to perform duties at
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JFCOM in the role of JFCOM Science Advisor, as arranged in the MOA. S1 states that he did
not have the authority to change the agreement or assign Complainant in or out of the position.

Regarding Complainant’s claims of harassment, S1 maintains that the first notice he had that
Complainant believed she was being harassed was by her message to the COS on February 8,
2011, and when he received notification from the EEO office on April 5, 2011. He maintains
that he immediately requested an internal investigation when he was made aware of
Complainant's concerns. S1 also denies discriminating against Complainant based on sex,
disability, or prior protected EEO activity. The COS maintains that Complainant first
mentioned harassment in her email to him on February 17, 2011. He had already initiated an
investigation based on her earlier email of February 8, 2011, and her new claim was included
in that investigation. That was also the time when action was taken to find Complainant an
alternate location for her to work, and she declined that offer. The record shows that in her
February 22, 2011 email, Complainant reported harassment, derogatory comments, and
discrimination. She again declined relocation alternatives. The COS states that Complainant’s
allegations were taken seriously and she was advised of her option to file a formal EEO
complaint.

We agree with the Agency’s conclusion that Complainant did not establish her hostile work
environment claim because she did not show that she was subjected to harassment that was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
work environment. The substance of Complainant’s claims concerned personnel actions,
changes in job responsibilities, and changes in workplace policies and procedures. Aside from
Complainant’s bare uncorroborated assertions, she failed to provide any evidence to support
her claims of harassment. Moreover, information from SA and another coworker did not
support Complainant’s claims of harassment or discrimination, and helped to corroborate
management's legitimate, non-discriminatory/retaliatory reasons for its employment actions.
We agree with the Agency in concluding that the preponderance of the evidence does not
support a finding that any management official was motivated by discriminatory or retaliatory
animus.

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 decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
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1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
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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 21, 2016
Date