0720140027
07-31-2018
Matilda C.,1 Complainant, v. Victoria A. Lipnic, Acting Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Matilda C.,1
Complainant,
v.
Victoria A. Lipnic,
Acting Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0720140027
Agency No. 2011-33832
DECISION
This matter comes before the Commission on cross appeals from an Administrative Judge's (AJ's) February 28, 2014 decision and order, which (1) entered a finding of discrimination on Complainant's claim of sex and race discrimination in connection with the Agency's investigation and disciplinary suspension, and (2) found no discrimination on all other claims and entered judgment in favor of the Agency. In its May 20, 2014, final order the Agency affirmed the AJs findings of no discrimination and rejected its finding of discrimination; the Agency simultaneously filed the instant timely appeal requesting that the Commission affirm its rejection of the AJ's finding of discrimination.2 On June 18, 2014, Complainant filed a timely cross-appeal requesting that the Commission reject the AJ's finding of no race, sex, or reprisal discrimination in connection with work assignments, reject the AJ's finding of no reprisal discrimination in connection with a performance award, and increase the AJ's award of compensatory damages and award attorney's fees and costs. The Commission accepts both appeals pursuant to 29 C.F.R. � 1614.405(a).
As a procedural matter, we note that the Equal Employment Opportunity Commission (EEOC) is both (1) the respondent Agency and (2) the adjudicatory authority issuing this decision. For the purposes of this decision, the term "Commission" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to EEOC in its role as the respondent party. In all cases, the Commission in its adjudicatory capacity operates independently from those offices charged with in-house processing and resolution of discrimination complaints; moreover, in this case, the hearing was assigned to an independent contract Administrative Judge not an employee of the Commission.3 Further, the Acting Chair has recused herself from participation in this decision.
For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
The issues presented are whether substantial evidence in the record supports:
(1) The AJ's finding of race and sex discrimination when the Agency issued Complainant a 14-day suspension for using a racial slur;
(2) The AJ's finding of no race, sex, or reprisal discrimination when the Agency stopped assigning Complainant to investigate discrimination charges filed by African-American male charging parties; and
(3) The AJ's finding of no reprisal discrimination when the Agency did not give Complainant a larger time-off award or any monetary award.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigator,
GS-1810-11, at the Agency's San Francisco District Office in California. Complainant's first-level supervisor was the Enforcement Supervisor (S1). Complainant's second-level supervisor was the Enforcement Manager (S2). Complainant's third-level supervisor was the District Director (S3).
Suspension and Work Assignments (Issues 1 and 2)
The facts relevant to Issues 1 and 2 arise out of two investigations S1 conducted simultaneously on behalf of the Agency: One investigation was about Complainant's allegation that a co-worker had called her a bigot and used a sexist slur (the C-word) toward her; the other investigation arose out of a different co-worker's allegation that Complainant herself had used a racial slur (the N-word).
Specifically, on May 4, 2011, Complainant complained to S1 that a coworker (CW1 - African-American, male) (1) accused her of being a bigot for previously using a racial slur (the N-word), and (2) called her a sexual slur (the C-word). According to Complainant, he uttered the C-word earlier that day) during a union meeting. S1 initiated an investigation. During that investigation, another coworker (CW2 - African-American/Caucasian, female) informed S1 that, during a conversation she, Complainant, and another coworker (CW3 - race and sex not specified) were having at their cubicles regarding the upcoming union election the week before the union meeting, Complainant had used a racial slur (the N-word) to refer to an African-American male coworker.
As a result of CW2's statement, S1 also investigated Complainant's alleged use of a racial slur. Regarding the alleged sexual slur, S1's interview notes indicate that: (a) Complainant heard CW1 use a sexual slur; (b) CW1 denied using a sexual slur; (c) five coworkers (including CW2) did not hear CW1 use a sexual slur; and (d) one coworker (CW4) heard CW1 say "sort of a K sound," but did not hear what the word was. Regarding Complainant's alleged use of a racial slur, S1's interview notes indicate that: (a) CW2 heard Complainant use a racial slur; (b) Complainant denied using a racial slur; and (c) CW3 did not hear Complainant use a racial slur. S1 did not prepare a formal report of his findings.
At some point during his investigation into Complainant's alleged use of a racial slur, S1 asked S2 to stop assigning Complainant to investigate discrimination charges filed by African-American male charging parties. S2 did so until early 2013.
On June 22, 2011, S1 issued to Complainant a notice of proposed 14-day suspension for using a racial slur on April 29, 2011. In the notice, S1 stated that he did not find CW3 credible during the interview. In addition, S1 stated that none of the coworkers he interviewed heard CW1 use a sexual slur. The proposal also cited to Complainant's negative interactions with an African-American male coworker in 2009 and 2010, with an African-American male witness during an investigative interview, and with an African-American male charging party. S1 found that these incidents demonstrated a pattern of anti-Black male bias, which led him to credit CW2's allegation that Complainant used a racial slur and supported the recommendation to suspend her. On July 13, 2011, S3 issued a decision to suspend Complainant for 14 days.
Performance Award (Issue 3)
On August 15, 2011, the Agency gave identical performance awards to Complainant and nine other investigators (C1- C9) for their efforts as part of a team that planned a June 9, 2011, lesbian, gay, bisexual, and transgender (LGBT) pride event. C1 - C9 also received larger time-off awards and monetary awards for other achievements. Complainant did not receive any other award that year.
EEO Complaint
Complainant filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the bases of race (Caucasian), sex (female, Lesbian), and reprisal for prior protected EEO activity4 when:
1. In July 2011, it issued her a 14-day suspension for using a racial slur;
2. In May or June 2011, it stopped assigning her to investigate discrimination charges filed by African-American male charging parties; and
3. In August 2011, it did not give her a larger time-off performance award or a monetary performance award.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Administrative Judge. Complainant timely requested a hearing. After a hearing on September 19-20, 2013 and November 8, 2013, the AJ issued a decision on February 28, 2014.
AJ's Decision
The AJ found that Complainant established race and sex (not reprisal) discrimination in claim 1, did not establish race, sex, or reprisal discrimination in claim 2, and did not establish reprisal discrimination in claim 3. That decision is summarized below.
A. Claim 1 - Suspension
The AJ found that Complainant proved disparate treatment on the bases of race and sex (not reprisal) with respect to the claims relating to the suspension. The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for suspending Complainant; namely, S1 believed, after his investigation, that Complainant had referred to an African-American male coworker using a racial slur. The AJ relied upon S1's hearing testimony that he believed CW2 and not CW3 or Complainant.
The AJ, however, then found that Complainant proved, by a preponderance of the evidence, that the Agency's reason was pretextual. In so finding, the AJ stated:
Perhaps [CW2] was more credible at the time of [S1]'s investigation, but I found her testimony not credible at the hearing . . . I found [CW3]'s demeanor and testimony credible, although [S1] found her not to be credible during his investigation. If that were the whole of it, I would not second guess whether the Agency findings at the time of the investigation were credible to [S1] and justified the Agency's investigation and resulting suspension of [Complainant]. But additional evidence weighs against the Agency's stated justification.
First, the AJ found that the Agency had shifted its reasoning because the Agency investigated CW1's alleged use of a sexual slur at the union meeting, but then later asserted that it could not investigate or take action in response to conduct at a union meeting.
Second, the AJ found that S1 disregarded evidence that corroborated CW1's alleged use of a sexual slur. Specifically, the AJ found that S1 omitted from his interview notes that CW4 heard CW1 say something with a "K sound." In addition, citing a coworker's (CW5) hearing testimony, the AJ found that S1 omitted from his interview notes that CW5 heard CW1 say something that sounded like a sexual slur. Moreover, the AJ found that S1 ignored information about CW1's propensity for using profanity at work.
The AJ further stated that the two investigations were conducted under disparate standards that appeared to favor the statements made by two African-American employees while disregarding evidence that supported Complainant. The AJ found that S1's "findings against [Complainant] based on the three previous, undocumented isolated incidents involving Black males gave unfair weight to the views or positions of those Black males to the disadvantage of a female who was not Black." The AJ then concluded that the "investigations were conducted in a discriminatory manner and the resulting suspension is unfairly tainted by disparate treatment based upon race and sex/gender.
B. Claim 2 - Work Assignments
We note that the AJ did not separately analyze this claim but instead referenced this claim only in finding that the Agency's reason for suspending Complainant was pretextual. However, it is clear from the AJ's order of relief that the AJ found no discrimination in connection with this claim:
Complainant is the prevailing party on her claim of unlawful employment discrimination based upon race and sex/gender in connection with the Agency's adverse employment actions of the investigation and discipline against her . . . [I] find in favor of the Agency on Complainant's claims of unlawful reprisal or discrimination in connection with all remaining claims other than the finding of discrimination above.
Accordingly, we conclude that the AJ found no race, sex, or reprisal discrimination when the Agency stopped assigning Complainant to investigate discrimination charges filed by African-American male charging parties.
C. Claim 3 - Performance Award
The AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not giving Complainant a larger time-off performance award or a monetary award. Specifically, the AJ cited S1's hearing testimony that he did not recommend anyone for an award because he missed the deadline for recommendations. In addition, the AJ noted that none of Complainant's coworkers recommended her for an award. Moreover, the AJ found that Complainant did not prove, by a preponderance of the evidence, that the Agency's reasons were pretextual. Specifically, the AJ found that there was no evidence of retaliatory animus.
CONTENTIONS ON APPEAL5
On appeal, the Agency challenges the AJ's finding of race and sex discrimination in claim 1.
First, the Agency argues that the AJ erred in finding discrimination after having made a factual finding that S1 believed Complainant used a racial slur. Specifically, the Agency asserts that, although the AJ did not find CW2 to be credible at the hearing, the AJ found that S1 believed CW2 and recognized that perhaps CW2 was more credible at the time of S1's investigation. Similarly, the Agency asserts that, although the AJ found CW3 to be credible at the hearing, the AJ acknowledged that S1 found CW3 not to be credible during his investigation. In addition, the Agency asserts that the AJ misidentified the issue because the issue was not whether S1's credibility determinations were justified (i.e., the correctness of S1's decision to suspend Complainant), but rather whether S1 discriminated against Complainant.
Second, the Agency argues that the AJ erred in finding that additional evidence weighed against S1's justification for suspending Complainant. Specifically, the Agency asserts that it never shifted its position that the Federal Service Labor-Management Relations Statute prohibits it from disciplining an employee for a statement made at a union meeting, that its investigation into the incident did not mean that it had a responsibility to act if it found wrongdoing by CW1, and that such an investigation only showed that it took Complainant's concerns seriously by trying to determine if there were issues that the union should address.
In addition, the Agency asserts that S1 did not disregard evidence that corroborated CW1's alleged use of a sexual slur because CW4's statement about the "K sound" was recorded in the interview notes, CW5's testimony was only that CW1 might have said something consistent with a sexual slur but he could not be sure because it was murmured, and CW1's use of profanity in the workplace was not evidence that CW1 used a sexual slur. Further, the Agency asserts that S1's determination that Complainant had a history of conflict with African-American males did not give "unfair weight to the views or positions of those Black males" because it was based on S1's own observations of Complainant's behavior in those three situations. Moreover, the Agency asserts that S1's 2009 counseling of Complainant for being "anti-male" (after she expressed concern about male investigators replacing female investigators) did not establish racial or sexual bias on the part of S1 and did not have any bearing on S1's 2011 decision to suspend her for using a racial slur.
Finally, the Agency asserts that, because the record contains no evidence as to exactly when S1 decided to stop assigning cases involving African-American male charging parties to Complainant (other than sometime during his investigation into her alleged use of a racial slur), the AJ had no basis to infer that S1's decision to do so was somehow premature. The Agency notes that S1 interviewed the key witnesses (Complainant, CW2, and CW3) in the first few days of the investigation and asserts that the only reasonable inference from the evidence is that S1 made the decision to protect the interests of the charging parties after having formed a belief that Complainant in fact may have used a racial slur.
Third, the Agency argues that the AJ erred in focusing on S1's simultaneous investigation of CW1's alleged use of a sexual slur. Specifically, the Agency asserts that Complainant and CW1 were not similarly situated because the AJ found that S1 believed Complainant had used a racial slur but did not believe CW1 had used a sexual slur.
On appeal, Complainant requests that the Commission affirm the AJ's finding of discrimination in claim 1 but challenges the AJ's findings of no discrimination in claims 2 and 3.
First, Complainant argues that the AJ erred in finding no race, sex, or reprisal discrimination when management stopped assigning her to investigate discrimination charges filed by African-American male charging parties. Specifically, Complainant asserts that management's action constitutes per se discrimination on the bases of race and sex because it was based on her race and sex (Caucasian female) as well as on the race and sex of the charging parties (African-American males). In addition, Complainant argues that management's action was retaliatory because it occurred shortly after she complained to S1 about CW1's comments.
Second, Complainant contends that the AJ erred in finding no reprisal discrimination when it did not give her a larger time-off performance award or a monetary performance award. Specifically, Complainant argues that the Agency's action occurred only three weeks after she contacted an EEO Counselor. In addition, Complainant argues that she had more merit factor resolutions than the investigators who received awards, including the investigators
(C1 - C4) supervised by S1. Moreover, Complainant argues that a management official other than a direct supervisor could have recommended her for an award and noted that S2 recommended several investigators (C5 - C8) for awards.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � VI.B (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Claim 1 - Suspension
Upon review, we find that substantial evidence in the record does not support the AJ's finding of race and sex discrimination when the Agency issued Complainant a 14-day suspension for using a racial slur. Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for its action; namely, S1 believed that she had used a racial slur to refer to an African-American male coworker. Specifically, S1 testified that, based on the investigative interviews about the racial slur, he found CW2 credible but did not find CW3 or Complainant credible. Regarding witness credibility, S1 testified that his determination was largely based upon the details CW2 provided during the investigation and her "calm," "sincere and believable" demeanor, as opposed to CW3's "short answers" and "uncomfortableness." H'rg Tr., at 208, 210. Regarding Complainant, S1 testified that he did not believe her for "many" reasons, including that she was "defensive" and "couldn't she couldn't explain why [CW2] would suddenly make up this allegation," and that it was "more that [he] believed [CW2]'s story than disbelieved [Complainant]." (Id. at 394). Moreover, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual.
We emphasize that the issue is not whether Complainant actually used a racial slur, but whether S1 reasonably believed CW2's allegation that Complainant used a racial slur. The AJ substituted her own judgment for that of S1 without concluding that he was not credible or that his acceptance of CW2's statement was so unreasonable that one could only conclude he was masking discriminatory animus based on race or sex. An Administrative Judge should not substitute her judgement for that of the agency with regard to analyzing the agency decision. An employer's stated legitimate reason must be reasonably articulated and nondiscriminatory, but does not have to be a reason that the trier of fact would act on or approve. See Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987). An employer is entitled to make his own business judgements. The reasonableness of the employer's decision may of course be probative of whether it is pretext. The trier of fact must understand that the focus is to be on the employer's motivation, not its business judgement. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir. 1979). See also generally Glass v. U.S. Postal Serv., EEOC Appeal No. 07A50068 (June 15, 2006) (focus was on agency's motivation and not its business judgment, finding that AJ erred in substituting his business judgment - regarding weight that agency should give to coworker complaints - for that of agency with respect to agency's termination of complainant); Cole v. Equal Emp't Opportunity Comm'n, EEOC Appeal No. 01922553 (Jan. 14, 1993) (issue was not whether sexual harassment actually occurred, but whether recommending official who did not select complainant reasonably believed sexual harassment allegation against complainant to be true); Anderson v. U.S. Postal Serv., EEOC Appeal No. 0720090016 (Dec. 1, 2009) (pivotal inquiry was whether management reasonably believed complainant had engaged in conduct warranting discipline and finding that evidence did not show that agency's action in disciplining complainant was so unreasonable as to establish pretext).
In her findings of fact, the AJ stated, "Based upon his investigation interviews, [S1] believed [CW2] about [Complainant]'s actions, and he did not believe [CW3] or [Complainant]."
AJ Decision, at 7. In her analysis, however, the AJ noted that S1's credibility determinations during his investigation conflicted with her own credibility determinations regarding CW2 and CW3, based on their demeanor at the hearing. Id. at 10. The AJ then proceeded to erroneously substitute her credibility determinations at the hearing for S1's credibility determinations and investigative findings. Id. at 10-12. However, we find that the "additional evidence" cited by the AJ did not show that S1's suspension of Complainant was so unreasonable as to establish pretext.
First, we find that any shift in the Agency's reasoning related to its investigation of CW1's alleged use of a sexual slur did not show that S1 unreasonably believed Complainant used a racial slur. Here, the relevant explanations are the Agency's reasons for suspending Complainant, not whether the Agency shifted position regarding whether it was appropriate to investigate what CW1 allegedly said during a union meeting. We find that, even had the Agency's explanation shifted with respect to its investigation of CW1, that does not reflect negatively upon the credibility of the Agency's explanation regarding its suspension of Complainant. To the contrary, the record reflects that the Agency consistently maintained that it suspended Complainant because it believed she had used a racial slur. As such, the AJ's finding - that the Agency shifted its position and, therefore, Complainant proved pretext - is legally incorrect.
Second, we find that any evidence S1 may have disregarded in his investigation of CW1's alleged use of a sexual slur did not show that S1 unreasonably believed Complainant used a racial slur. The AJ's focus on S1's investigation of CW1 was misplaced. The issue was not whether S1 correctly determined or reasonably believed that CW1 did not use a sexual slur; the issue was whether S1 reasonably believed that Complainant used a racial slur. The undisputed record reflects that, during their interviews, CW2 informed S1 that Complainant used a racial slur and CW3 informed S1 that Complainant did not use a racial slur. S1, after receiving the contradictory information, made his own credibility determinations about whom to believe.
Third, even if Complainant did not have a history of conflict with African-American males, we find that the lack of such a history did not show that S1 unreasonably believed Complainant used a racial slur. Even if we accept the AJ's determination that Complainant's explanation of the previous interactions was more credible than S1's explanation of the previous interactions, the record reflects that S1 did not rely solely on those previous interactions in believing that Complainant used a racial slur. As noted above, S1 testified that, based on the investigative interviews about the racial slur, he found CW2 credible but did not find CW3 or Complainant credible.
Finally, we agree with the Agency that S1's decision to stop assigning cases involving African-American male charging parties to Complainant before the completion of the investigation did not show that S1 unreasonably believed Complainant used a racial slur. Because the record does not indicate when during the investigation S1 made the decision (such as before or after he interviewed CW2, Complainant, and CW3) we cannot infer that S1's decision to do so was so unreasonable as to establish pretext.
Claim 2 - Work Assignments
Upon review, we find that substantial evidence in the record supports the AJ's finding of no race, sex, or reprisal discrimination when, during the investigation into Complainant's alleged use of a racial slur, the Agency stopped assigning her to investigate discrimination charges filed by African-American male charging parties.
Assuming, arguendo, that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated a legitimate, nondiscriminatory reason for its action. Specifically, S1 averred that, because of CW2's allegation that Complainant used a racial slur to refer to an African-American male and his own observations of Complainant's poor treatment of African-American males in the past, he believed African-American male charging parties would not receive a fair investigation from Complainant. ROI, Ex. F1, at 6.
Moreover, we find that Complainant did not prove, by a preponderance of the evidence, that the Agency's reason was pretextual. Although Complainant argues that the Agency stopped assigning her to investigate discrimination charges filed by African-American male charging parties because she is a Caucasian female who complained about CW1's alleged use of a sexual slur, we are not persuaded. Instead, the timeline of events and the testimonial evidence in the record tend to show that the change in Complainant's work assignments was connected to CW2's allegation that Complainant used a racial slur and not to Complainant's race, sex, or prior EEO activity.
Claim 3 - Performance Award
Upon review, we find that substantial evidence in the record supports the AJ's finding of no reprisal discrimination when the Agency did not give Complainant a larger time-off performance award or a monetary performance award. We note that Complainant received an eight-hour time-off award for her role in planning an LGBT pride event and that S3 recommended her for the award.
We agree with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for its action. Specifically, S1 testified that he did not recommend anyone because he missed the deadline for recommendations. Hr'g Tr., at 152, 370, 375-76. In addition, S2 testified that she did not recommend Complainant because she depended on the direct supervisors to make the recommendations. S2's Dep. Tr., at 153.
Moreover, we agree with the AJ that Complainant did not prove, by a preponderance of the evidence, that the Agency's articulated reasons were pretextual. Complainant's arguments on appeal are insufficient to rebut the testimony of S1 and S2. While the Agency's action may have occurred shortly after Complainant's EEO Counselor contact, such temporal proximity raises an initial inference of discrimination but does not establish pretext. See Compliance Manual - Retaliation, � II.E.2. Even if Complainant had more merit factor resolutions than C1 - C9, the evidence does not show that Agency's reasons are not believable. Regarding C1 - C4 (the investigators directly supervised by S1), the documentary evidence in the record reflects that they were recommended for the awards by coworkers and not by S1 or S2. ROI, at Ex. F15. In contrast, the documentary evidence in the record reflects that no coworker recommended Complainant for an award. Id. Regarding C5 - C8, the testimonial evidence in the record reflects that they were recommended for the awards by S2, who directly supervised them at the time. S2's Dep. Tr., at 153. Regarding C9, the documentary evidence in the record reflects that he was recommended for the award by his direct supervisor, who was not S1 or S2. ROI, at Ex. F15.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order.6 Complainant did not establish that she was discriminated against when she was issued a 14-day suspension for using a racial slur; the Agency stopped assigning her to investigate discrimination charges filed by African-American male charging parties; and the Agency did not give her a larger time-off award or any monetary award.
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
1.
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
_7/31/18_____________
Date
1 This case has been randomly assigned a pseudonym, which will replace Complainant's name when the decision is published to non-parties and on the Commission's website.
3 See Logan-King v. Equal Emp't Opportunity Comm'n, EEOC Request No. 05A10082
(Jan. 3, 2002).
4 The protected activity consisted of the May 4, 2011, complaint to S1 about CW1's comments and July 25, 2011, EEO Counselor contact in the instant complaint.
5 On July 8, 2014, the Commission granted Complainant an extension of time until August 18, 2014, to file a brief in support of her appeal and granted the Agency an extension of time until September 17, 2014, to file a brief in opposition to her appeal. Complainant filed a brief on July 18, 2014, and a supplemental brief on November 24, 2014. The Commission declines to consider Complainant's November 24, 2014, supplemental brief, as it was untimely filed.
6 Because we find no discrimination, the Commission need not address Complainant's
cross-appeal pertaining to the issue of damages.
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