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

Equal Employment Opportunity Commission

Aug 30, 2019

0120180741 (E.E.O.C. Aug. 30, 2019)

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

Maximo S.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120180741

Hearing No. 531-2015-00268X

Agency Nos. DON 14-42191-01776 & DON 14-42191-02994

DECISION

On December 4, 2017, Complainant filed a premature appeal, which was perfected when the
Agency issued is final order dated January 12, 2018, with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning his two
equal employment opportunity (EEO) complaints 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to his two EEO complaints, Complainant was employed by the
Agency as a Contract Specialist, GS-1102-13, at the Naval Air Systems Command, Assistant
Commander for Contracts (Air 2.0), Major Weapons Systems for Tactical Aircraft and Missiles
(Air 2.2) in Patuxent River, Maryland.

On January 27, 2014, Complainant filed EEO Complaint 1 (DON 14-42191-01776) and on
October 2, 2014, he filed EEO Complaint 2 (DON 14-42191-02994).

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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The Agency consolidated the complaints, and conducted a joint EEO investigation thereon.
Complainant requested a hearing before an Administrative Judge (AJ) with the EEOC.

After the Agency filed a Motion for Findings and Conclusions without a Hearing, which
Complainant opposed, the AJ issued a decision by summary judgment without a hearing finding
no discrimination on Complaints 1 and 2.

Claim 1: Complainant alleged that he was discriminated against and subjected to harassment based
on his race (African-American), and age (47) when:

a. He experienced abusive behavior from an Agency Program Manager AIR (PMA)
Lead (Customer 1 – around age 48, race – Caucasian), for whom he provided
contract services.

b. On February 19, 2014, his first line supervisor (S1 – around age 48, race/color
Caucasian/White, American) denied his request to attend a source selection training
workshop (regards choosing which contractor will be awarded a government
contract).

c. On March 19, 2014, S1 denied his request to telework.

Regarding issue 1.a., the AJ found that Customer 1 was uniformly gruff, and his having one heated
conversation with Complainant was insufficiently severe or pervasive to alter Complainant’s work
environment. On issue 1.b., Complainant indicated that during the workshop, S1 called him for a
meeting and he told S1 this was disrupting the workshop. Report of Investigation (ROI), Ex. F.5.a.
at 15, Bates No. (bottom right) 646. The AJ found that Complainant offered no evidence that S1
disallowed him from attending the training, rather in his declaration he indicated that he was upset
about being pulled away while it was in progress. On issue 1.c., Complainant stated that on or
about March 18, 2014, S1 canceled his telework and told him to return to work the next day, which
forced him to use sick leave on March 19, 2014. The AJ found that time and attendance records
showed Complainant did not take sick leave on March 19, 2014, rather he worked a regular day
(whether teleworking or in the office), and Complainant did not submit a copy of the email he
contended S1 sent him canceling his telework for March 19, 2014. The AJ also found that
regarding issue 1.c., Complainant did not show he was disparately treated.

Claim 2: Complainant alleged that he was discriminated against and subjected to harassment based
on his age, race, and religion (fundamentalist Christian) when on or around February
19, 2014, the source selection training workshop facilitator (Caucasian/White, around
age 45, Christian) called him a “liar” in front of team members.

The facilitator was not in Complainant’s chain of command, and Complainant stated he did not
know her. Complainant stated that before the workshop, he advised the facilitator he may have to
leave early because he had a meeting conflict, and when he got up to leave, referring to this, the
facilitator called him a liar. ROI, Ex. F.5.a., at 24, Bates No. 655.
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Complainant stated that the facilitator was not joking but his coworker at the workshop who was
the Procuring Contractor Officer (PCO) for him on his team (race/color Caucasian/White, female,
around age 37), American, Roman Catholic) advised him she took it as a joke. The AJ found that
even if Complainant’s claim is true, Complainant only offered supposition, not evidence, that the
comment was made based on any of his protected bases, and this matter did not rise to the level of
actionable harassment.

Claim 3: Complainant alleged that he was discriminated against based on his race, color, sex
(male), national origin (American) and reprisal for prior EEO activity when on or around
April 16, 2014, S1 gave him an unfavorable mid-year progress review.

In the mid-year progress review, S1 wrote that Complainant required additional focus on verbal
and written communications with his customers. The AJ observed this comment was mild and
followed a string of low key praises for Complainant’s work product. The AJ recounted that in
preparation for the mid-year review, S1 asked Complainant’s PCO for feedback, who responded
that when asked a direct question, Complainant does not give a direct response, and it is very
difficult getting information from him. Customer 1 stated that Complainant made communication
difficult because he would intermix programs and recount things back he was not told in the
conversation. Customer 1 suggested that for this reason, he always had two additional people in
on every conversation with Complainant using the speaker phone function. The AJ found that the
remark in the mid-year appraisal had nothing to do with any of his Complainant’s protected bases,
and he did not prove pretext.

Claim 4: Complainant alleged that he was discriminated against based on is age, race, national
origin, color, sex, and reprisal when:

a. On or around April 16, 2014, S1 issued him a Letter of Caution.

b. On or around April 21, 2014, his request to attend training was denied.

S1 issued Complainant the Letter of Caution for emailing Customer 1 on March 13, 2014, with
some wording all in capital letters, signifying yelling which was unprofessional. On March 13,
2014, Customer 1 directed an email to two of his supervisors, which he copied to Complainant,
Complainant’s PEO, and others that there have been problems between the Agency’s contracts
team and [the company’s] contracts department, that his program had its share of setbacks, that if
these delays continue they may miss the delivery requirements for the first installation, and
suggested a meeting to regroup and flush out all concerns. Complainant replied to Customer 1 that
“… I suggest if you don’t like the contract processes or what I’m doing you can start with a
conversation with [S1] and work your way up…. IF NO ONE ELSE WILL TELL YOU I WILL
TELL YOU THAT I AM TRYNG MY BEST despite what you perceive as a setback….”
Complainant sent the email to everyone to whom Customer 1 sent his email. This made Customer
1 irate because he believed it was abusive for him to use that tone on him in an open forum. He
emailed his supervisors complaining about the reply, which was ultimately forwarded to S1.
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Language in the Letter of Caution advised it would not be placed in Complainant’s official
personnel folder nor counted as a prior offense in any future discipline. The AJ found that
Complainant’s email was inappropriate and unprofessional, that S1 viewed it as so, and he failed
to offer any evidence that the caution was related to any of his protected bases.

Regarding issue 4.b., Complainant requested permission from S1 to take a Contractor Officer
Representative course (COR 222), which was scheduled from April 21 – 24, 2014. In her email to
Complainant denying the request, S1 explained that the timing was not good and it was designed
for CORs or those intending to be CORs [Contract Officer Representative], later stating it was not
for Complainant’s job as Contract Specialist. Complainant did not reply to S1’s email that he
intended to be a COR. ROI, Ex. F.2.j., at Bates Nos. 267 – 268. The AJ found that S1 denied
Complainant’s request for the reason S1 related. Complainant also alleged that S1 denied his
request to take training courses in Stress Management and Time Management. The AJ recounted
that S1 stated she had no record of Complainant requesting these courses, that Complainant
similarly submitted no evidence that S1 denied him access thereto, and found S1 denied training
for Complainant’s peers, many of whom were white females.

Claim 5: Complainant alleged that he learned he was discriminated against based on his race, color,
and reprisal on April 22, 2014, when after a White Coworker made a joke during an
active shooter exercise, Naval Air security did not contact the coworker, but
management contacted security when he made a joke on October 17, 2013.

At the end of a meeting about his fiscal year 2013 performance evaluation and self-assessment
with S1 and his third line supervisor (S3 – Caucasian/White, female, American, Methodist, around
age 52), Complainant said to S3 “I am not going to do anything stupid if that’s what you are
worried about.” S3 replied “I know you wouldn’t; you are a family man and a nice guy.”
Complainant responded “ya know that Jeffry Dahmer looked like a nice guy too but he was eating
people.” In their EEO investigative declarations, S1 and S3 indicated that they contacted Navy
Air security because they were concerned. On April 22, 2014, during preparation for an active
shooter exercise, the White Coworker joked that he may stay with the shooter instead of evacuating
the building. Navy Air Security Specialist 1 (Caucasian, female, around age 30) related that at the
active shooter briefing, participants were advised that their three options are to stay and hide, leave,
or fight back.

The AJ found that at the end of the fiscal year 2013 performance meeting, which referenced his
communication difficulties, Complainant made comments that he may have believed were a joke,
but because they suggested violence in the workplace, management was obligated to take seriously
and report to security. The AJ found that in contrast, the White coworker’s comment occurred in
a different context, and did not suggest violence against any person. The AJ found Complainant
did not prove pretext.

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Claim 6: Complainant alleged that he was discriminated against based on his age (47 and 48), sex,
race, national origin, and reprisal when:

a. On or around June 5, 2014, he received an email from a teammate (Coworker
1 – Caucasian, female, American, around age 39) which he believed was at the
direction of S1. Both were supervised by S1.

b. On June 10, 2014, S1 issued him a Letter of Reprimand.

c. On or about July 22, 2014, S1 denied his request for telework.

d. On or about July 29, 2015, S1 gave him a new inactive workload.

Agency policy requires that all employees who work on source selection sign a Non-Disclosure
Agreement (NDA) for the contract solicitation on which they are working. Complainant’s job
involved source selection. The NDA requires the signee not disclose information about bids for
government contracts to others before the contract award announcement is made, and prohibits
disclosure of any of the criteria for evaluating contracts. The NDA directs the signee to identify
any firm on the list of potential offerors that he has direct or indirect financial interest with, and
not to solicit or accept any promise of future employment from a company that has expressed an
interest in submitting a proposal.

When Complainant came on board AIR 2.2, he was assigned the responsibilities of a predecessor,
and took on a contract competition. But because Complainant refused to sign the NDA, this
contract competition was given to Coworker 1, and about half or two thirds of Coworker 1’s
workload (two contracts) was given to Complainant. The swap occurred on June 3, 2014.

Regarding issue 6.a., Coworker 1 repeatedly tried to discuss her former workload, but she did not
view Complainant as cooperative. Later, when S1 asked Coworker 1 about the swap, she
responded she was frustrated that Complainant would not take the time to discuss the work. S1
suggested to Coworker 1 that she communicate her concerns via email because some people do
better with written communication. On June 5, 2014, Coworker 1 sent Complainant an email
recounting her unsuccessful efforts with discuss the work transferred to him, and that she felt
slighted that he went to Northrop to discuss background information rather than going to her or
another identified person. The AJ found that Coworker 1 believed Complainant had poor
communication skills and relayed this to S1 who suggested she email Complainant about her
concerns. The AJ found that given the swap, S1 had a vested interest in Coworker 1 and
Complainant communicating effectively. The AJ found that Complainant offered no evidence that
incident 6.a. had anything to do with Complainant’s protected bases, the Agency articulated a
legitimate, nondiscriminatory reason for the matter, and Complainant failed to prove pretext.

Regarding issue 6.b., on June 10, 2014, S1 issued Complainant a reprimand for unprofessional
conduct at a meeting with them and two Agency attorneys to discuss the term of an NDA
Complainant marked “n/a”, to ensure he would still abide by the law.
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Complainant’s unprofessional conduct was just staring and blinking without responding when
asked a question, despite repeatedly being asked and told a yes or no would suffice. At the meeting
S1 asked Complainant if he was not talking to her and would not answer any questions,
Complainant gave no response, and the meeting ended. Complainant explained that he did not
respond because his attorney was reviewing the NDA, he was not going to comment on a legal
matter, and later after his attorney had an opportunity to review the NDA, he signed it. ROI, Ex.
F.5.a., at 27 – 28, Bates Nos. 658 – 659. The AJ found that the letter of reprimand was issued for
the reason therein, that Complainant failed to show he was disparately treated, and failed to prove
pretext.

Regarding issue 6.c., at that time the Agency had no recurring telework. Rather, it had to be
requested in advance with a description of what was being worked on, and requests were
considered ad hoc anew each pay period (every two weeks). Complainant was on a combination
of annual and sick leave starting on June 11, 2014, and sick leave since June 27, 2014. Sometime
soon before July 18, 2014, Complainant provided S1 a doctor’s excuse indicating he would be out
until July 14, 2014, but he did not return. On July 22, 2014, Complainant emailed S1 requesting
to telework from July 23, 2014 to August 29, 2014. S1 denied the request. She explained that she
needed to discuss with him the status of his workload, and he had not provided a doctor’s note
releasing him to return to work, via paper or electronically, as she requested. ROI, Ex. F.5.a., Bates
Nos. 1530 – 1535; ROI, Bates Nos. 1693 – 1694. The AJ found that the Agency articulated
legitimate, nondiscriminatory reasons for its action, and Complainant did not prove pretext.

Regarding issue 6.d., Complainant alleged that when he returned to work, S1 gave him
assignments that were in an inactive status, and this would prevent him from doing work that
would demonstrate his level of proficiency. The AJ found that all contracts have inactive periods,
and Complainant did not prove S1 made assignments to him because of his protected bases. The
AJ found that even if Complainant made out a prima facie case of discrimination, the Agency had
legitimate, nondiscriminatory reasons for its actions, i.e., Complainant refused to sign the NDA,
he said he was seeking employment from a contractor who submitted bids on solicitations he was
reviewing, and he was receiving a financial benefit from Boeing (a pension), preventing him for
working on any solicitations it was bidding on.

Claim 7: Complainant alleged that he was discriminated against and subjected to harassment based
on his age (47), sex, race, and reprisal for prior EEO activity when on or about July 29,
2014, Security Specialist 1 requested that he undergo a psychological evaluation which
he believes was made at the direction of S1.

After learning about the “Jeffrey Dahmer” comment, Security Specialist 1 on November 19, 2013,
referred the matter to the Department of Defense Consolidated Adjudication Facility (DODCAF),
which determines whether employees can continue to have access to classified information.
DODCAF requested Complainant undergo a psychological evaluation to help it make an
adjudicative decision on his security clearance. The evaluation was voluntary, and the Agency
would pay for it.
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Complainant was free to submit his own medical documentation, if he so chose, and if he did not
undergo the psychological evaluation or submit medical documentation DODCAF would make an
adjudicative decision based on the information they had. ROI, Ex. F.3.e., at Bates Nos. 472 – 473.
Security Specialist 1 stated that DODCAF requested the evaluation, not her, S1 or S3, and that S1
and S3 did not recommend doing an evaluation. The AJ found that there was no evidence in the
record that anyone in DODCAF was aware of Complainant’s protected bases. The AJ found that
Security Specialist 1 properly referred the matter to DODCAF, and Complainant offered no
evidence that her referral was intended to result in DODCAF requesting a psychological
evaluation.

Claim 8: Complainant alleged that he was discriminated against and subjected to harassment based
on his age (47), sex, race, national origin, and reprisal when:

a. On or about August 21, 2014, S1 charged him with absent without leave (AWOL).

b. On or about September 2, 2014, he was issued a notice of proposed suspension
(followed by a decision dated September 18, 2014, sustaining the proposal and
suspending him for one day, effective September 22, 2014).

Regarding issue 8.a., on August 20, 2014, S1 emailed Complainant that she wanted to meet with
him at 2:30 PM to discuss his prior failure to follow her instructions (the subject of the 8.b.
suspension). At 8:56 AM Complainant replied that he would prefer to have the meeting now.
Around 9:30 AM S1 left Complainant a voicemail that she moved up the meeting time. S1 did not
hear back from Complainant until 11:21 AM, when he sent an email that he left for the day. S1
stated the because Complainant left without proper notice or obtaining approval to leave she
charged him two hours AWOL. S1 stated she was surprised Complainant left because she
accommodated his request to move the meeting up. The AJ found that Complainant was charged
AWOL for the reason given by S1, and Complainant did not prove it was actually because of his
protected groups.

Regarding issue 8.b., Complainant did not return to work until September 2, 2014, at which time
he was issued the notice of proposed suspension that was originally dated August 20, 2014. As
previously recounted, starting on June 11, 2014, Complainant was out on a combination of annual
and sick leave, and starting June 27, 2014, continuous sick leave. As previously recounted,
although his latest doctor’s excuse expired on July 14, 2014, Complainant remained out on sick
leave, and on July 22, 2014, emailed S1 requesting to telework from July 23, 2014 to August 29,
2014. Therein, he also advised that he intended to attend training which was approved for July 23,
2014, and August 6, 2014. S1 replied to Complainant on July 22, 2014, telling him to either
electronically send her a doctor’s note today showing he was released to return to work or bring it
in tomorrow before going to class. On July 23, 2014, Complainant went to class without providing
S1 the doctor’s note. Complainant explained that he did not view himself as failing to follow
instructions because S1 did not made it clear that she was directing him to provide her the doctor’s
note before attending class.

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S1 proposed Complainant’s suspension, which S3 sustained, for failure to follow instructions. In
addition to recounting some of the facts above, in the proposal S1 wrote that on July 23, 2014,
around 7 AM, Complainant texted her that he was in Human Resources on an urgent matter, and
she replied by text again telling him he needed to provide her with the doctor’s note before going
to class. He went to class without doing so.

The AJ found that Complainant did not comply with S1’s directive, and it was not merely a
suggestion, as evidenced by the emails and text. He found that the Agency suspended Complainant
for this reason as part of progressive discipline – he was previously issued a Letter of Reprimand
on June 10, 2014. The AJ found that Complainant did not show he was disparately treated, that he
was targeted based on his protected groups, or prove pretext. The AJ issued his written decision
finding no discrimination on January 8, 2018. The parties represent that previously at a status
conference on October 11, 2016, the AJ advised he was ruling against Complainant on the merits.

On January 12, 2018, the Agency issued its final order fully implementing the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

As an initial matter, we find that Complainant was not denied due process as alleged by
Complainant on appeal. While the timing of the AJ’s October 11, 2016 ruling apparently came as
a surprise to Complainant, prior to this the Agency filed a motion for a decision without a hearing,
to which Complainant had an opportunity to respond, and did so. Further, regardless of how much
detail the AJ gave at the October 11, 2016 status conference to support his ruling, in his written
decision dated January 8, 2018, the AJ fully explained why Complainant’s complaint lacked merit.

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

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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. While
Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point
with any specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of
the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been "sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

As recounted in the “BACKGROUND” section of this decision, the Agency, as applicable,
articulated legitimate, nondiscriminatory reasons for its actions. We agree with the AJ that
Complainant did not prove the reasons were pretext. Regarding all the claims, we agree with the
AJ that Complainant did not show any were based on his protected groups. Further, regarding
issues 1.a., and 2, we agree with the AJ that they did not rise to the level of actionable harassment.

After a review of the AJ’s lengthy decision, the record, and the parties arguments on appeal, we
AFFIRM the Agency’s final order.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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.

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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

August 30, 2019
Date