[Redacted], Anette B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 7, 2021

Appeal No. 2020000705 (E.E.O.C. Sep. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anette B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020000705 Hearing No. 520-2016-00175X Agency Nos. 4B-105-0028-14 4B-105-0012-16 DECISION On October 19, 2019, 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 September 9, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a part-time/flexible, Clerk/Sales, Service, Distribution Associate, Grade PS-6, at various Agency Post Offices in Maplecrest, Woodstock, Saugerties and Hunter, New York. 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. 2 2020000705 First EEO Complaint - Agency No. 4B-105-0028-14 On September 12, 2014, Complainant initiated contact with an EEO Counselor regarding alleged discriminatory actions by her supervisor (“Postmaster”) (age 59). On December 26, 2014, Complainant filed formal EEO complaint, identified as Agency No. 4B-105-0028-14, alleging that the Agency had discriminated against her based on disability (back issues and stress), age (50), and reprisal for prior protected EEO activities (including multiple grievances against her managers between 2011 and 2014) when: 1) On July 2007, Complainant was not paid within the correct pay weeks for hours worked; 2) In March 2011, Complainant was put out of work for 2-3 weeks, until transferred to another facility; 3) On unspecified dates, since working at the Hunter Post Office in 2011, the Postmaster has harassed her, yelled at her, and “bad-mouthed” her to customers and co-workers; 4) Between the Fall of 2010 and October 2013, Complainant's hours were cut; 5) In November 2013, Complainant requested assistance, which was denied; 6) In December 2013, Complainant's leave time was entered as Annual Leave instead of FMLA; 7) In March of 2014, Complainant was charged Absent Without Leave (AWOL) instead of FMLA; 8) In April of 2014, Complainant was placed on the “deems desirable” list; 9) In August 2014, Complainant was required to run a two-person office by herself for three weeks; and 10) From August 20, 2014 through November 3, 2014, Complainant's leave time was entered as Annual Leave and not FMLA. On April 3, 2017, the Agency dismissed the complaint in Agency No. 4B-105-0028-14. On appeal, the Commission reversed the Agency’s final decision and remanded the complaint as a claim of ongoing harassment to the Agency for investigation and further processing. See Complainant v U.S. Postal Serv., EEOC Appeal No. 0120151261 (July 23, 2015). 3 2020000705 Second EEO Complaint - Agency No. 4B-105-0012-16 On December 21, 2015, Complainant initiated EEO Counselor contact regarding disciplinary matters she believed to be discriminatory based on disability (back and stress), age (50) and for prior protected EEO activity. In this second formal complaint, Complainant alleged the Agency had subjected her to discrimination when: 11) On July 9, 2015, Complainant was put on Emergency Placement in an Off-Duty Status and; 12) On January 12, 2016, Complainant was issued a Notice of Removal for Unacceptable Conduct. Concurrent with her EEO claims Complainant’s union challenged the emergency placement and removal notice on Complainant’s behalf under the Agency’s negotiated grievance process. Arbitration Decision Between November 9, 2016 and November 28, 2016, an arbitration hearing was held regarding Complainant’s union grievance pursuant to the collective bargaining agreement with the Agency. The conduct which was the Agency’s grounds for emergency placement off-duty and later removal occurred when Complainant was working at the Hunter Post Office. Agency regulations provided that customers, as opposed to employees, were to effect address changes by completing and submitting the Official Mail Forwarding Change of Address Order, also known as a PS Form 3575 (COA Form). However, Agency employees were to use a different form (PS Form 3575Z) to change a customer’s mailing addresses. The Postmaster testified that in April 2014, he had left a note for Complainant at the Hunter Post Office. The Postmaster’s note was intended to inform Complainant that: “you have to do the [address] changes on one of these employee-generated forms for forward corrections or changes by us.” The Postmaster, however, admitted he that he never discussed this April 2014 note with Complainant. On an unspecified date, the Postmaster informed Office of Inspector General (OIG) that Complainant had incorrectly used COA Forms. The Agency assigned an OIG Agent to investigate Complainant’s conduct. In December 2014, the Postmaster gathered thirteen COA Forms where Complainant changed customers’ addresses. The Postmaster provided those COA Forms to the OIG Agent. By June 17, 2017, Complainant had completed 181 COA Forms on behalf of customers and then signed her own name and signature on those COA Forms. In July 2017, the OIG Agent interviewed Complainant. When confronted, Complainant told the OIG Agent that the Postmaster had refused her request for more of the appropriate PS Form 3575Zs. 4 2020000705 Complainant explained that she had used COA Form as an alternative to the PS Form 3575Z in order to update addresses for those customers, who she knew had moved, so that these customers would continue receiving their mail. Based on Complainant’s responses during the OIG Agent interview, the Agency placed Complainant in an emergency off-duty status without pay. On January 12, 2016, the Agency issued Complainant a notice of proposed removable for unacceptable conduct regarding her use of the COA Forms. The Agency’s removal action took effect on February 19, 2016. An arbitration hearing on this matter was held between November 9, 2016, until November 28, 2016. The arbitrator decided in favor of Complainant. The arbitrator noted that the Agency presented only one witness, a retired local postmaster, in support of the Agency position that Complainant’s use of a COA Form had caused irreparable harm to the safety of the mails. The arbitrator questioned the veracity of that witness’ testimony. The arbitrator also expressed doubts about the intent and objectivity of the Postmaster because he had drafted the initial customer complaint forms to justify OIG’s investigation into Complainant. The arbitrator faulted the Agency for failing timely to discipline Complainant until many months after management was aware of her performance issues concerning the COA Forms. The arbitrator reasoned that if Complainant’s misdeeds had caused an actual emergency, then the Agency would have intervened by counseling her or providing corrective guidance more expeditiously. The arbitrator found that, instead, the Agency had compounded Complainant’s incorrect behavior by allowing it to continue unabated over many months. After the hearing closed, the arbitrator invalidated the Agency’s decision to place Complainant in an emergency, off-duty, status without pay. The arbitrator also awarded Complainant backpay for the period when she was in an emergency off-duty status. During the arbitration hearing, a witness had testified that Complainant’s use of the COA Forms was a known practice to redirect misdirected mail, that was accepted in some small post offices. However, the arbitrator found Complainant’s ignoring applicable regulations as well as instructions on the COA Form itself, merited a thirty-day suspension without pay. Therefore, the arbitrator reduced the backpay award accordingly. Finally, although Complainant was found entitled to reinstatement, the arbitrator recommended the Agency reassign Complainant to another facility.2 2 On November 28, 2016, Complainant contacted an EEO Counselor accusing management of being deceptive during the arbitration hearing into her off-duty status and the following removal. On February 28, 2016, Complainant filed a third formal complaint, identified as Agency No. 48- 105-0007-17, on that claim. On April 23, 2016, the Agency dismissed Complainant’s complaint as an improper collateral attack on the arbitration process. Complainant appealed. This Commission affirmed the Agency’s procedural decision. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120171895 (July 14, 2017). 5 2020000705 AJ Adjudication After both complaints 1 and 2 (Agency No. 4B-105-0028-14 and Agency No. 48-105-0012-16) had been investigated, the Agency provided Complainant with a copy of its reports from those investigations. The Agency also notified Complainant of her rights to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On February 2, 2017, the AJ issued an acknowledgment order that included a warning tht failure to obtain legal representation would not be considered grounds for delay. On June 15, 2019, the AJ issued a case management order to the parties to prepare a joint statement of factual stipulations no later than June 26, 2019. On June 18, 2019, Complainant’s counsel withdrew from representing her. Complainant stated that she had not permitted her attorney’s withdrawal. On June 26, 2019, the Agency submitted proposed stipulated facts. Complainant responded by contesting the Agency’s proposals. The parties did not confer on stipulations and did not develop a joint statement of facts. On July 22, 2019, AJ dismissed Complainant’s request for a hearing and remanded these matters to the Agency for a final decision. The AJ acknowledged that Complainant had forwarded emails evidencing that the parties had been engaged in settlement negotiations for approximately one year before June 2019. However, the AJ held that Complainant’s response to the case management order was inadequate. The AJ found that dismissal from the hearing and remand for a final Agency decision was an appropriate sanction because Complainant had shown indifference to the EEO process because Complainant violated the case management order and because Complainant’s failure to diligently prosecute her case had hindered administrative processing. Final Agency Decision In accordance with the AJ’s remand order, on September 4, 2019, Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The managers that Complainant accused were of similar age or older. Therefore, the Agency denied age was a proper basis. Based on medical documentation of Complainant’s physical and mental conditions, the Agency concluded that Complainant was a person with an EEO-protected disability. Although temporal evidence may have supported an inference of reprisal discrimination, the Agency ultimately held the connection between the adverse actions was insufficient. The Agency decided that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant’s Appeal The instant appeal followed. On appeal, Complainant states that the Agency’s 2019 final action had disregarded the 2016 arbitration decision, which had determined the Agency management acted in a manner that constituted retaliation when it decided to place her in on off-duty status and then remove her. Additionally, Complainant contends that delay in the OIG’s audit of her errors and management’s delayed disciplinary investigation supports her position that the Agency had failed to train her and failed to correct her timely. Complainant argues that the Agency could and should have done so, but instead permitted her to commit misconduct in order contrive grounds for her removal. 6 2020000705 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 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”). We first analyze Complainant’s claims 1-10 in the context of harassment or a hostile work environment.3 To establish her hostile work environment claim, Complainant must show she was subjected to conduct that was either so severe or so pervasive that a reasonable employee in Complainant's position would have found the conduct was hostile or abusive. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant must also prove that the conduct was motivated by animus against at least one her protected characteristics. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Only if Complainant establishes both of the elements - hostility and a discriminatory motive - can the Agency be held liable for harassment. Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998). Here, the record reflects that Complainant was not subjected to a hostile work environment because of discrimination. In the main, normal everyday workplace indignities, such as many of Complainant’s allegations, simply do not rise to the level necessary to establish a hostile work environment in violation of the anti-discrimination statutes. Silvia B. v. Dep’t of the Treasury, EEOC Appeal No. 0120173290 (Oct. 24, 2018). Moreover, Complainant has failed to meet her burden of proving that her disabilities, age or EEO-protected activity wrongfully factored into the disputed Agency actions. The responsible management officials have articulated a legitimate, nondiscriminatory reason for the disputed events. Complainant bears the burden to show by preponderant evidence that the Agency’s reasons for the decisions at issue were pretexts to mask unlawful discriminatory motives. See U.S. Postal Svc. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Reeves v. Sanderson Plumb. Prod., Inc., 530 U.S. 133, 143 (2000). Agency No. 48-105-0028-14 - Claims 1 through 10 In Claim 1, Complainant contends that the Agency made clerical errors in terms of paying relative to hours she had clocked in. The Agency countered that Complainant was dissatisfied with sound responses from managers concerning the reasons for her paid working hours. 3 During the hearing process, Complainant’s claims were so defined. 7 2020000705 In Claim 2, Complainant states she was without work or pay during a transition period when the Agency transferred her from one post office to another. However, Complainant’s supervisors attributed her off-duty period to an investigation into Complainant’s conduct. In Claim 3 , Complainant claims in essence, that the Postmaster had expressed animus toward her because she was from New York City (which is not a basis covered by the anti-discrimination statutes). Complainant accused the Postmaster speaking rudely toward her. A co-worker recalled that Complainant overheard the Postmaster make a negative comment about Complainant. The Postmaster, however, denied doing so. Claim 4 covers a timeframe, between 2011 and 2013, when Complainant’s hours were drastically reduced. Complainant contended that the Agency had her performing part-time work between two post offices. Complainant alleged management scheduled her work in a manner detrimental to her while providing more hours to a contract clerk. The Postmaster explained that regional management had assigned Complainant to serve as officer-in-charge for two other Post Offices. The Agency averred that Complainant worked fewer hours based on its operational needs during that time. In Claim 5, Complainant accused the Agency of denying her request for assistance in handling her workload. The Postmaster explained that Complainant did in fact receive assistance as requested on Mondays and on days after holidays. However, budgetary limits prevented management from grating her requests for assistance on other days. Regarding Claim 6, according to Complainant, in December 2013, the Agency charged her for annual leave on days she had requested leave under the Family Medical Leave Act (FMLA leave) to care for her ill father. The Postmaster disputed that he had denied Complainant’s requests for FMLA leave. Rather, he stated that he had granted her FMLA leave requests. The Postmaster further explained he could not authorize Complainant’s FMLA requests during those times he had been detailed to other facilities. One of Complainant’s acting supervisors, the manager for post office operations (MPOO), stated that Agency denials of Complainant’s FMLA leave request were based on Complainant’s failure to provide documentation necessary for FMLA leave approval. Regarding Claim 7, the Agency denied that Complainant was charged with AWOL on days in March 2014 when Complainant had requested FMLA leave. Rather, the Agency clarified it had charged Complainant leave without pay (LWOP) as opposed to AWOL. The Agency acknowledged that Complainant had requested FMLA leave for several days in March 2014. However, the Agency stated that, under its FMLA policy, it was justified in charging Complainant LWOP because by March 2014, Complainant had exhausted her annual balance of 80 hours of sick leave. In Claim 8, Complainant accused the Postmaster of discriminatorily placing her on the Agency list of employees for whom documentation was deemed desirable for future sick leave requests. In his sworn statement, the Postmaster said his placement on the deems desirable list was within his legitimate discretion and based on an audit of Complainant’s leave usage. 8 2020000705 The Postmaster described putting Complainant on the deems desirable lists as an expression of concern that her pattern of leave usage had been increasing from one the year to the next. As another justification for Complainant’s inclusion on the deems desirable list, the Postmaster testified that more than once, Complainant had called-in sick or took unscheduled leave. Claim 9 involved Complainant’s accusation that the Agency overburdened her when she was the lone employee staffing the Hunter Post Office. The Postmaster and the MPOO, who also, contested Complainant’s claim. Both stated that they had also worked at the Hunter Post Office by themselves. Moreover, their sworn statements agreed that, subject to availability, another employee was assigned to the Hunter Post Office to assist Complainant on high volume days. In Claim 10, Complainant asserted that, between August 2014 and November 2014, the Agency wrongfully charged her for annual leave when she should had requested FMLA leave. The MPOO admitted there were three times when the MPOO had approved Complainant for sick leave or for annual leave after Complainant had requested to use FMLA leave. In her affidavit, the MPOO defended not authorizing the FMLA requests at issue because Complainant had already exhausted her FMLA balance or because the MPOO preferred that Complainant take paid-leave when available. With respect to these aforementioned allegations, we agree with the Agency’s final decision. Even if we were to presume that Complainant made the prima facie case for these allegations, the Agency had legitimate or non-discriminatory grounds to justify the matters raised in Agency No. 48-105-0028-14. Moreover, for all of the first ten actions under review, Complainant has failed to carry her burden of persuading us, with preponderant evidence, that the Agency’s articulated reasons were pretext masking discriminatory or retaliatory animus. Agency No. 4B-105-0012-16 - Claims 11 and 12 EEOC analyzes reprisal broadly in the interest of protecting employees from retaliation that may reasonably deter protected activity. EEOC Compliance Manual, Sec. 8, “Retaliation,” No. 915.003 (May 20, 1998) at 8-15; Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Consistently, we have held that Title VII prohibits any words or actions that have a chilling effect of discouraging a reasonable employee from engaging in EEO activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) the agency subjected the complainant to adverse treatment; and (4) a clear nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). In claims 11 and 12, Complainant has essentially alleged that the Agency retaliated against her by placing her in emergency off-duty status in July 2015 and then issuing her its removal notice in January 2016. In its final decision, the Agency forthrightly admitted that Complainant had made the prima facie case of reprisal. 9 2020000705 However, the Agency found that in the end Complainant had not established an adequate nexus between these personnel actions and her prior protected activity. Based on an exhaustive review of all evidence in the record, this Commission cannot affirm this conclusion. The record revealed that Complainant had also filed grievances accusing the Postmaster of discriminatory harassment beginning in February 2013 and continuing through the initiation of this complaint (Agency No. 4B-105-0012-16) in September of 2014. The Postmaster stated that he was unaware of Complainant’s EEO-protected activities against him until a December 2014 mediation. It is unclear when the Postmaster reported Complainant’s regulation violations to the Agency’s OIG. The arbitration hearing elicited testimony that Agency employee use of the COA Forms to correct customer addresses had been permitted as an efficiency measure in smaller post offices where Complainant had worked. We acknowledge that the arbitration decision was issued from a different forum applying the collective bargaining agreement as opposed to EEO law. However, we likewise question whether Agency delays had undermined its rationale for emergency adverse action against Complainant, as well as whether or not Complainant was treated differently from other similarly situated employees when she was removed from her position. These are material facts and legal issues that create a dispute as to whether management’s explanation was credible. Such disputes require a hearing to resolve. However, Complainant did not get that hearing because the AJ disposed of this matter by dismissing the hearing request as a sanction against Complainant. Here, the AJ issued a case management order to the parties to prepare a joint statement of factual stipulations no later than June 26, 2019. After Complainant’s legal counsel withdrew from the case without Complainant’s consent, the Agency submitted proposed stipulated facts on June 26, 2019. Complainant responded by contesting the Agency’s proposals. On July 22, 2019, AJ dismissed Complainant’s request for a hearing and remanded these matters to the Agency for a final decision. The AJ acknowledged that Complainant had forwarded emails evidencing that the parties had been engaged in settlement negotiations for approximately one year before June 2019. However, the AJ held that Complainant’s response to the case management order was inadequate because the parties had not conferred and jointly submitted the stipulated facts. The AJ found that dismissal from the hearing and remand for a final Agency decision was an appropriate sanction because Complainant had violated the case management order and failed to diligently prosecute her case which hindered administrative processing. We have thoroughly examined the record before us and find that it is insufficient to demonstrate that Complainant had engaged in the kind of willful or obstinate refusal to comply with an AJ’s order that typifies contumacious conduct, or that she willfully failed to act with due diligence. We therefore find that the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction for the matters raised in Agency No. 4B-105-1002-16, in that the dismissal prematurely curtailed the proceeding. See Sean L. v Dep’t of the Air Force, EEOC Appeal No. 2020002537 (June 2, 2021); Ela O. v Dep’t of the Treasury, EEOC Appeal Nos 2019001558 (Sep. 21, 2020). 10 2020000705 On remand, the AJ shall hold a hearing to determine whether Agency management’s reasoning behind placing Complainant off-duty and then issuing the notice of removal was merely a pretext to mask her supervisor’s retaliatory motives. CONCLUSION The Agency final decision concluding no discrimination was established for Agency No. 4B-105- 0028-14 is AFFIRMED. The Agency’s final decision is VACATED on Agency No. 4B-105-0012-16. The two claims within Agency No. 4B-105-0012-16 are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) Within fifteen (15) calendar days of the date this decision is issued, the Agency is directed to submit a renewed hearing request on Complainant’s behalf, as well as the complaint file for Agency No. 4B-105-0012-16 and a copy of this decision, to the EEOC Hearings Unit of the Baltimore Field Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Commission’s AJ assigned to the case shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to Complainant and his representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. 11 2020000705 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel (OSC) pursuant to 29 C.F.R. § 1614.503(f) for OSC enforcement. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 29 C.F.R. § 1614.604(c). 12 2020000705 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 September 7, 2021 Date