Nicol K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 14, 2018

0120170855 (E.E.O.C. Dec. 14, 2018)

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

Nicol K.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 0120170855
Agency No. 4G-330-0158-16

DECISION

On December 27, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 30, 2016, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency subjected Complainant to a hostile work environment
based on sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Snapper Creek Branch Postal Facility in Miami, Florida. Complainant contacted an
EEO Counselor on March 2, 2016, and alleged that her acting supervisor made inappropriate
sexual comments to her and created a hostile work environment by making unprofessional
comments. On June 16, 2016, Complainant filed a formal EEO complaint alleging that the

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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Agency discriminated against her and subjected her to a hostile work environment on the basis of
sex (female). The Agency defined the accepted allegations as follows:

(1) since January 22, 2016, her supervisor has made comments of a sexual nature
which she believes constituted sexual harassment;

(2) her supervisor spoke to her in a loud, demeaning manner on February 16,
February 20, February 27, February 29, March 1-2, March 3, and March 7, 2016,
and other dates; and

(3) on March 22, 2016, her former supervisor stated that all people who filed EEO
complaints against him are just lazy and do not want to work.

In her affidavit, Complainant alleged that her Acting Supervisor (S1) made sexual advances to
her “well over a year ago.” She did not describe the alleged advances. She further alleged,

On January 22, 2016 while I was retrieving my mail from the hot case, [S1]
approached me and said ‘Lil bit, come here Lil bit. How much you weigh? Do
you know what I want to do to you? I just want to pick you up and put you on top
of me and spin you around. I could just pick you up with one arm and walk you
through every room.’ He also stated how pretty my legs are.

She asserted, “On one occasion he made a comment about how sexy my legs are.” According to
Complainant, S1 also made sexual comments to another female City Carrier (CW7).

In an attachment to her formal complaint, Complainant stated that there had been “several
incidents” involving her and S1. She alleged that S1 often spoke “with an air of authority on the
workroom floor” and had a “bullying demeanor.” In her affidavit, she asserted that, on February
16, 2016, S1 demanded that she work an hour of overtime on another employee’s route. She
stated that she told S1 that it was her day off and she was already on overtime, that she
mentioned the matter to the Customer Services Supervisor (S2), that S2 told S1 to let her work
on her own route, and that S1 “looked defeated and walked away angrily.” Complainant further
asserted that, on February 27, 2016, her Agency vehicle was in the shop for repairs and she asked
S2 if it had been repaired. She stated that S1 approached and yelled at her that S2 was not her
supervisor, instructed her to report any issues to him, told her to use the vehicle and that it would
be repaired on February 29, unsuccessfully attempted to start the vehicle, and then determined
that the mechanic had disabled the vehicle. According to Complainant, S1 “used his bullying to
his advantage.”2

2 Although the EEO Investigator’s question asked Complainant to describe the comments that S1
made on each of the dates cited in Claim 2, Complainant mentioned only two incidents.

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Complainant alleged in her affidavit that S1’s “loud and belittling comments were a direct result
of [her] reporting his inappropriate and unwanted comments of [a] sexual nature.” In addition,
she asserted that S1 also directed loud and demeaning comments at a male City Carrier (CW1).
She also asserted that S1 treated three male City Carriers (CW2, CW3, and CW4) better than he
treated her. According to Complainant, S1 accepted CW2’s request when CW2 was unable to
complete overtime but denied Complainant’s request, permitted CW3 to leave bundles of mail
for casing the next day but required Complainant to carry an amount of mail that resulted in her
returning to the station past her permitted time, and never stopped at CW4’s case to demand
instructions.

Complainant spoke with her union steward on March 7, 2016. According to Complainant, she
told him that she “was initially sexually harassed but it has now become a personal issue due to
[S1] becoming a supervisor.” On the same day, the union steward informed the Customer
Services Manager of the accusation. The Manager spoke with Complainant on March 7 and met
with Complainant and two union stewards on March 8, 2016. According to the Manager, S1
“was interviewed by [the Manager] with his steward present [and] then returned to craft.” By e-
mail dated March 17, 2016, the Customer Services Manager informed the Agency’s Labor
Relations Manager that S1 had “decided to return to his route on” March 19, 2016.

In her affidavit, Complainant asserted that S1 “was demoted from supervision and was assigned
back to his case where he was never to supervise again” on March 22, 2016. She stated that she
was retrieving mail when she heard S1 yell, “All the people who filed EEO’s on me are just lazy
and don’t want to work.” When a carrier asked whether S1 was going to supervise again, S1
replied, “That’s okay, I’ll be back supervising again, I’m the man.” Complainant, who stated
that she “immediately” reported the matter to the Customer Services Manager, identified CW1 as
a witness to the incident. In addition, Complainant asserted that S1 approached CW7 on March
31, 2016, asked her why she filed an EEO complaint about him, and told her that she was wrong
to file the complaint “all because she couldn’t complete the overtime on another route.”
Complainant stated that CW7 burst into tears and that the union steward escorted her from the
floor.

The EEO Investigator asked Complainant if there were any witnesses to S1’s comments and to
provide copies of any witness statements that she had.3 Complainant attached statements from
CW1 and three other City Carriers (CW5, CW6, and CW7) to her affidavit. In statements dated
March 9, 2016, both CW5 and CW6 stated that they heard S1 call Complainant “Lil Bit” on the
workroom floor. In an undated statement, CW7 stated that S1 had told her that her “breast [and]
butt [are] too small” and that she “need[ed] to do something about it.” CW7 further stated,
“[W]hen I told him to stop looking at me, he told me I don’t have much for him to look at.” She
stated that she and S1 had an altercation on the workroom floor and, as a result, her case was
moved away from him. In a statement dated April 20, 2016, CW1 stated that S1 returned to a

3 It is not clear why the EEO Investigator did not contact the witnesses to obtain affidavits from
them. The witnesses clearly could have provided relevant testimony. In the absence of such
affidavits, we rely on their unsworn statements.
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carrier position on March 19, 2016, and that coworkers asked him why he was no longer working
as a supervisor. According to CW1, S1 replied “that he had stepped down on his own for a
month or two but he would be back as supervisor because he belonged there.” CW1 also stated
that, on March 31, 2016, S1 approached CW7 “to ask her in a harassing manner the reason for
her ‘putting an EEO on him’” and that CW7 “broke down crying.”

In his August 10, 2016, affidavit, S1 denied that he made inappropriate comments of a sexual
nature to Complainant in January 2016 or at any other time. He also denied that he called
Complainant “little bit,” asked her how much she weighed, or stated that he wanted to pick her
up, put her on top of him, and spin her around. In response to the EEO Investigator’s question
about whether anyone had told him that Complainant felt that he had made comments of a sexual
nature, S1 replied, “No.” He also replied “No” to the question about whether he was aware that
any other employee alleged that he had “made inappropriate comments or comments of a sexual
nature.” Similarly, S1 denied that he spoke to Complainant in a loud and demeaning tone. He
acknowledged that he told Complainant around February 29, 2016, that he was her supervisor,
but he denied that he raised his voice. He stated that he told her to give him the keys so he could
check the vehicle, and that the vehicle had mechanical problems. He confirmed that he
supervised CW2, CW3, and CW4, but he denied treating them differently from the way that he
treated Complainant.

In addition, S1 denied stating, “I stepped down on my own, I’ll be back, I’m the man.” He
similarly denied stating, “All the people who filed EEO’s on me are just lazy and doesn’t [sic]
want to work. I’m the man and I’ll be back supervising again.” When asked if he was aware of
Complainant or anyone on her behalf contacting management officials about an alleged
harassment/hostile work environment, he replied, “No.” He stated that he did not know if there
had been an investigation into Complainant’s harassment allegation. He also stated that he had
not received any anti-harassment/hostile work environment training at the Agency. When asked
whether he had anything to add, S1 stated,

It was to my understanding that I made such statement of sexual harassment over
a year and half ago, but only made such claim in February of 2016 after I gave her
instruction that she did not like, and beginning to make allegation against me in
order that I would be move[d] from a supervisor position.

S2 stated in his affidavit that he did not know of any comments that S1 made to Complainant
because of her sex. In response to the EEO Investigator’s question about whether he heard S1
“raise his voice or speak to the Complainant in a loud demeaning manner,” S2 replied, “Yes. It
was about overtime request.” After Complainant complained in February or March 2016 that S1
spoke in a loud voice, S2 told S1 to speak to employees in a calm manner. S2 stated that it was
appropriate for Complainant to tell him that there was a problem with the brakes on her vehicle,
that S1 stated that he was looking into replacing the vehicle and could handle the situation, that
Complainant told S2 that S1 raised his voice, and that S1 told S2 that he did not raise his voice.
He also stated that CW2 and CW3 were in his unit and that S1 did not treat them or other
employees differently from the way that he treated Complainant. In his original affidavit, S2
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stated that CW4 was not in his unit; in a subsequent affidavit, he stated that CW4 was in his unit
and that S1 did not treat CW4 differently from the way that he treated Complainant. S2 was not
aware of S1 making any inappropriate comments to Complainant, and he had no knowledge of
S1’s alleged comments about stepping down from the supervisory position on his own and
people who file EEO complaints being lazy. He believed that the Station Manager investigated
Complainant’s complaint of harassment, but he stated that he was not involved in the
investigation.

In her affidavit, the Customer Services Manager stated that the shop steward informed her of
Complainant’s complaint about S1’s comments on March 7, 2016, and that she spoke with
Complainant on that day. She further stated that she met with Complainant and the union
steward on March 8, 2016, and that she interviewed S1 and he was “then returned to craft.” She
replied, “No” in response to the EEO Investigator’s question about whether anyone told her that
Complainant felt that S1’s comments were of a sexual nature. In response to the question about
whether any of S1’s comments were the result of Complainant’s sex, the Manager replied,
“Unknown.” She did not respond to the question about whether she was aware of any other
employees complaining that S1 made inappropriate comments, but she replied, “Yes” when
asked if she conducted an investigation into other employees’ complaints.

The Customer Services Manager stated that Complainant never informed her in February or
March 2016 that S1 spoke to her in a loud, demeaning tone. She also stated, however, that
Complainant informed her on March 8, 2016, that S1 raised his voice when speaking to
Complainant about her vehicle on February 29 and March 1, 2016. She stated that S1’s detail to
the supervisory position ended on March 18, 2016, but she did not explain why it ended. She did
not respond to the question about whether anyone made her aware of S1’s alleged March 19,
2016, statement that he stepped down on his own and would be back. She was not aware of S1’s
alleged statement that people who file EEO complaints are lazy. The Manager asserted that the
Agency investigated “what [Complainant] discussed” on March 8, 2016. In response to the EEO
Investigator’s question about the outcome of the investigation, the Manager replied, “No Report
given--was not resolved.” She stated that Complainant was informed of the outcome and that no
corrective action was taken.

The Customer Services Manager stated that CW2 and CW3 were in her unit and did not receive
treatment that was different from what Complainant received. Like S2, the Manager initially
said that CW4 was not in her unit and then, in a subsequent affidavit, stated that he was in her
unit. She did not respond to the question about whether he received different treatment.

In response to the EEO Investigator’s questions, the Customer Services Manager originally
claimed that she was “Acting Supervisor” during January 2016, that Complainant was male, that
Complainant’s primary duties in January 2016 were to supervise carriers, and that she was
Complainant’s immediate supervisor. It appears that the Manager’s responses refer to S1, rather
than Complainant. She corrected the misstatement about Complainant’s sex in a subsequent
affidavit and stated that it was a typographical error. It is not clear why the Manager, who signed
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each page of the original affidavit under the penalty of perjury, did not verify the accuracy of her
original responses.

The record contains an undated document that the Customer Services Manager prepared
regarding Complainant’s harassment allegations. The Manager stated in the document that she
was on the workroom floor on March 7, 2016, when Complainant stated, “He is so
disrespectful,” and told the Manager that S1 told her to turn around and face him when he was
talking to her. The Manager told Complainant to face a supervisor when talking to him or her,
and Complainant told the Manager that there “is more to this.” Later that day, after a union
steward told the Manager that Complainant had “made some strong allegations” about S1, the
Manager called Complainant. According to the document, Complainant “stated that she had
been verbally abused by” S1, “that he would give her beefs and she is not on the list and he
would yell at her,” and that she had filed an EEO complaint.

With respect to the March 8, 2016, meeting with Complainant and two union stewards, the
Manager stated that Complainant cited the following incidents: approximately one year earlier,
S1 had said, “Come here Lil Bit you know you want this, I want to pick you up and spin you
around”; in January, S1 said, “Come here Lil Bit, look at your legs, how much do you weigh, I
want to spin you around all over me”; on March 1, 2016, S1 yelled, “I heard you the first time”
after Complainant told him that she would not be back by 4:00 p.m. because of vehicle problems;
and, on March 2, 2016, S1 yelled at Complainant to remove her earphones. The Manager told
Complainant that, until the investigation was finalized, only the Manager and S2 would discuss
work issues with Complainant.

In the document, the Manager stated that she also met with S1 and S2 on March 8, 2016. She
attached their statements, but she did not provide any other information about the meeting. In his
March 7, 2016, statement, S1 stated that the union steward told him that Complainant was
accusing him of sexual harassment and that he told the steward that “there was no truth to this
allegation.” He asserted that, when he “stood up as a 204B,” Complainant “started with the
nasty attitude and being very uncooperative and hostile toward” him. In an undated document,
S1 denied saying, “Lil bit, I want to pick you up and spin you all around. How much do you
weigh? Look at your legs.” S2 stated in a March 8, 2016, statement that he could not remember
S1 ever doing or saying anything other than giving Complainant work-related instructions. S2
believed that S1 may have raised his voice once to ensure that his instructions were followed.

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. In accordance with Complainant’s request, 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.

In its final decision, the Agency found that it did not subject Complainant to a hostile work
environment based on sex. The Agency found that Complainant established that she was a
member of a protected group and that she was subjected to unwelcome conduct with respect to
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the matters raised in Claims 1 and 2. With respect to Claim 3, however, the Agency found that
Complainant did not establish that she was subjected to unwelcome conduct. In that regard, the
Agency noted that S1 denied making the alleged statement and that CW1’s statement did not
indicate that S1 made comments about EEO complaints in Complainant’s presence.

The Agency further found that Complainant did not show that her protected status motivated
S1’s conduct. Although other City Carriers heard S1 refer to Complainant as “Lil Bit” or “Little
Bit,” the Agency concluded that “[t]here is nothing about this term either on its face, or through a
reasonable inference, that would indicate by a preponderance of the evidence that [S1] was
motivated by the complainant’s sex when he used it in reference to the complainant.” The
Agency similarly concluded that there was no evidence that S1 spoke to Complainant in a loud
voice because of her sex. In addition, the Agency found that the conduct was not sufficiently
severe or pervasive to create a hostile work environment. Finally, the Agency found that there
was no basis for imputing liability to the Agency. In that regard, the Agency noted that the
Customer Services Manager learned of S1’s comments on March 7 and met with S1 on March 8,
2016, and that S1 returned to his craft position on March 18, 2016.

CONTENTIONS ON APPEAL

On appeal, Complainant, through her attorney, argues that the Agency subjected her to a hostile
work environment and treated similarly situated employees outside of her protected class more
favorably than it treated her. She further argues that, to the extent that the Agency has
articulated legitimate reasons for its actions, the articulated reasons are a pretext for
discrimination. She maintains that S1 called her “Lil Bit” because of her physical appearance
and that he spoke to her “in a demeaning and aggressive tone.” She asserts that the Agency
subjected her “to disparate treatment and sex-based discrimination in retaliation for her reporting
of sexual harassment within the workplace.”

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

ANALYSIS AND FINDINGS

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
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actionable if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s]
employment and create a hostile or abusive working environment.” The Court explained that an
“objectively hostile or abusive work environment [is created when] a reasonable person would
find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510
U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII
must be determined by looking at all the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. at 23.

To establish a claim of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8,
1994) (Enforcement Guidance on Harris). The evaluation “requires careful consideration of the
social context in which particular behavior occurs and is experienced by its target.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

With respect to element (5), an agency is subject to vicarious liability for harassment when it is
created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton,
524 U.S. 775 (1998). Where the harassment does not result in a tangible employment action, an
agency can raise an affirmative defense, which is subject to proof by a preponderance of the
evidence, by demonstrating: (1) that it exercised reasonable care to prevent and correct promptly
any harassing behavior; and (2) that the complainant unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the agency or to avoid harm otherwise.
See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999) (Enforcement
Guidance on Vicarious Employer Liability). No affirmative defense is available when a
supervisor’s harassment results in a tangible employment action. Burlington Industries at 762-
63; Faragher at 808.

In the case of co-worker harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of the conduct, unless it
can show that it took immediate and appropriate corrective action. See Enforcement Guidance
on Vicarious Employer Liability). What is appropriate remedial action will necessarily depend
on the particular facts of the case, such as the severity and persistence of the harassment and the
effectiveness of any initial remedial steps. See Taylor v. Dep’t Of Air Force, EEOC Request No.
05920194 (July 8, 1992).
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In this case, Complainant alleged that S1 made comments of a sexual nature to her, spoke to her
in a loud and demeaning manner on several occasions, and stated that people who file EEO
complaints are lazy. With respect to Complainant’s allegation that S1 spoke to her in a loud and
demeaning manner, we find that the evidence does not establish that he did so because of her
sex. Complainant’s statement that S1 also directed loud and demeaning comments at CW1, a
male City Carrier, is evidence that S1’s conduct was not based on sex. Further, the evidence
does not support Complainant’s assertion that S1 treated three male City Carriers more favorably
than he treated Complainant. Similarly, to the extent that Complainant is asserting that S1 made
comments about EEO complaints because of her sex, the evidence does not support the assertion.
We find, therefore, that the evidence does not establish that the incidents raised in Claims 2 and
3 occurred because of Complainant’s sex.

We further find that a preponderance of the evidence establishes that S1 called Complainant “Lil
Bit” or “Little Bit” and talked about picking her up and swinging her around on January 22,
2016. We also find that S1 made at least one comment about Complainant’s legs. Although S1
denied making inappropriate comments, two of Complainant’s coworkers confirmed that they
heard S1 refer to her as “Lil Bit.” S1, who stated in a March 2016 statement that a union steward
told him that Complainant was filing a sexual harassment charge against him but denied in his
August 2016 affidavit that he was aware of anyone contacting management officials about the
alleged harassment of Complainant, is not a credible witness.

We assume for the purposes of analysis only, and without so finding, that the comments
referenced in Claim 1 were based on sex. We further assume that the comment about
Complainant’s legs did not occur on January 22, 2016, and therefore involves a separate
incident. We find that these two incidents of sexual comments do not constitute actionable
harassment.4 S1’s comments were clearly inappropriate, but they did not result in a tangible
employment action, and they were not so frequent or severe as to create a hostile work
environment. Accordingly, we find that Complainant has not established that the Agency
subjected her to a hostile work environment based on sex.

Complainant alleged in her affidavit that S1 directed loud, belittling comments at her because
she reported his inappropriate sexual comments. The February 2016 incidents that she discussed
in her affidavit, however, occurred before she contacted an EEO Counselor on March 2 and
spoke with the Customer Services Manager on March 7, 2016. Thus, to the extent that
Complainant is alleging that S1’s comments were in reprisal for protected EEO activity, the
evidence does not support her allegation.

We note that Complainant stated that S1 yelled that people who file EEO complaints are lazy. In
addition, both Complainant and CW1 stated that S1 approached CW7 and asked why she filed an

4 Although Complainant alleged in her affidavit that S1 also made sexual advances to her more
than a year earlier, she provided no information about the alleged advances. Accordingly, we
find that the record establishes only two incidents where S1 made sexual comments.
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EEO complaint. S1 was no longer a supervisor when he engaged in this conduct. Nevertheless,
we take this opportunity to remind the Agency that supervisors’ statements that on their face
have a potentially chilling effect on participation in the EEO process could constitute per se
reprisal. See Ebony M. v. Dep’t of Agriculture, EEOC Appeal No. 0120140153 (Nov. 14, 2017)
(“When a supervisor’s behavior has a potentially chilling effect on the use of the EEO process -
the ultimate tool that employees have to enforce equal employment opportunity -- the behavior is
a violation.”). We strongly urge the Agency to ensure that managers and supervisors perform in
such a manner “as to insure a continuing affirmative application and vigorous enforcement of the
policy of equal employment opportunity.” 29 C.F.R. § 1614.105(a)(5). Likewise, we strongly
urge the Agency to ensure that all employees understand their rights and responsibilities under
EEO laws and respect the EEO process.
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 decision and its finding of no
discrimination.

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.
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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:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

December 14, 2018
Date