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

Equal Employment Opportunity Commission

Jul 29, 2021

Appeal No. 2020001930 (E.E.O.C. Jul. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angelo P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020001930 Agency No. 4B-060-0082-19 DECISION On January 19, 2020, 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 December 17, 2019 final decision concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Part-Time Flexible (PTF) Sales, Services/Distribution Associate at the Agency’s Williamstown Post Office facility in Williamstown, Massachusetts. On May 13, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and/or discrimination on the basis of sex (sexual orientation - gay male)2 when: 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 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an 2020001930 2 1. In April 2017, management made a comment that he was a female employee’s “fag hag” or that maybe she was his “fag hag.” 2. In December 2017, management changed his clock rings to avoid paying him penalty overtime and said to him, “I don’t pay penalty OT in this office.” 3. In 2018, he was required to pay cash reserve shortages and a threat was made to report him to the inspection service if he didn’t pay a third time. 4. On February 8, 2018, management reduced his work hours and required that he take a 3-hour lunch while another PTF covered the office. 5. In April 2018, the Postmaster said, “he would not accept a transfer request from a transgender employee to work in his office because having Complainant was bad enough.” 6. In April 2018, a new PTF was assigned in the early morning shifts denying him the opportunity to receive night differential pay. 7. In September 2018, after requested sick leave (SL) was approved the same day the supervisor, the Postmaster requested additional information and subsequently gave him leave without pay (LWOP) instead of SL. 8. Beginning in October 2018 and continuing through April 2019, management did not process the hours he worked in Cheshire causing his pay to be delayed. 9. Management denied his request for pay advances. 10. After telling the Post Office Operations Manager (POOM) he was going to file an EEO complaint, the POOM said on three occasions he would open an internal investigation which Complainant believed was an effort to try to dissuade him from filing an EEO complaint. 11. On April 16, 2019, management handed him a PS Form 1017-A disallowed penalty overtime hours for a timeframe in December 2017. 12. In April 2019, the HR Manager did not respond to his emails. 13. In April 2019, the POOM told him that he never initiated an investigation into his multiple claims of harassment on the part of management. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent evidence. Complainant attested that he identified as a gay male. He generally attested that he believed the events at issue occurred because he was the only openly gay male employee at the facility and these things did not happen to other employees. The Supervisor, Customer Services (Supervisor); Postmaster (Postmaster); and Manager, Post Office Operations (POOM) attested that they were all aware that Complainant identified as a gay male. allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020001930 3 Regarding claims (1) and (5), Complainant attested that, in April 2017, the Supervisor referred to him as a female co-worker’s “fag hag” and, when he realized his mistake, he corrected himself and said to Complainant, “no, wait; she would be your ‘fag hag’.” He also attested that, in early 2018, he overheard Postmaster said that he did not want a named transwoman working there and that Complainant “is bad enough.” Complainant attested that he felt these comments were derogatory and/or demeaning and that Postmaster’s comment indicated that they had already met or surpassed the quota for queer employees. Complainant attested that he did not think anyone overheard the comment. Both the Supervisor and Postmaster denied making these statements. POOM attested that he reached out to Human Resources Manager (HR Manager) and the Threat Assessment Coordinator (Coordinator), who conducted an investigation, and did not find evidence that Postmaster made the derogatory comments attributed to them by Complainant. HR Manager confirmed there was an independent investigation performed on March 26 through 28, 2019, and the allegation that Postmaster made derogatory and demeaning comments about a transgender employee or Complainant was unsubstantiated. The Coordinator attested that Complainant had no witnesses to corroborate his allegation and, when they asked Postmaster about the allegation, he stated that he did not need another PTF, which had noting to do with the employee being transgender. Regarding claims (2) and (11), Complainant attested that, on December 9, 2017, he realized that there was a deduction made from his clock rings when he looked at his paycheck online. He attested that, on December 11, 2017, he bought this to Postmaster’s attention, noting that he worked 56.72 hours and was only paid for 56 hours. He attested that Postmaster admitted to changing the clock rings and said that Complainant should have made sure he did not go into penalty overtime and was scheduled for more than 56 hours. Complainant alleged that Postmaster told him, “I don’t pay penalty pay to my employees because I don’t want to be on that list.” Complainant attested that, while walking out of Postmaster’s office, he overheard Supervisor say that there will be consequences for complaining about things and now there will be split shifts. Complainant alleged that he would later bear the brunt of this retaliation, as he was regularly treated work than his co-workers. He also stated that, if Postmaster did not want to pay him penalty pay, he should not have been scheduled for penalty time. Complainant also stated that the schedule was posted publicly, and Postmaster could have sent him home early or had him take a longer lunch if he did not want to pay penalty time. Complainant attested that there was no one in the room when he and Postmaster had the conversation about his pay being shorted. Complainant also attested that Postmaster filled out a form for disallowed time, PS Form 1017, indicating that Complainant was observed not working. Complainant alleged that this form was initialed by Supervisor, but Supervisor was not working the day the form was filled out. Complainant further attested that, when the Agency investigated the incident, he was told by Human Resources that he was believed to have been working and would be paid double time, but he still had not yet been paid for this time. 2020001930 4 Supervisor attested that management used the PS Form 1017-A, Time Disallowance Record, to document disallowed time. He attested that he processed the adjust pay certification, but Postmaster made the decision to do this. He attested that the clock rings were changed because Complainant was observed not working. Regarding the statement about there being consequences, he attested that he never implied there would be consequences and explained that the schedule is based on operational needs. Postmaster attested that he and Supervisor had a conversation about observing Complainant not working and they concurred on the decision to change Complainant’s clock rings to avoid paying penalty overtime. He explained that penalty overtime was not authorized. A Clerk (Clerk) attested that she heard Supervisor say that there will be consequences to be paid and they will have split shifts, but she could not answer when or what led to the comment. Complainant essentially reiterated his contention when he alleged in claim (11) that, on April 15, 2019, Supervisor showed him his PS Form 1017 that Postmaster had completed, disallowing penalty overtime hours for a time period in December 2017. Supervisor attested that Complainant asked for the PS Form 1017-A in April 2019 and he provided it. Supervisor reiterated that Complainant was observed not working in December 2017 and this was the reason for this situation. Postmaster attested that Complainant went over 56 hours in a work week and incurred 72 units of penalty overtime, but he was observed through the day not working. Regarding claim (3), Complainant attested that Postmaster was responsible for the cash reserve and, when it was short, he would ask Complainant to pay the difference. Complainant attested that, on two occasions in 2017 and on January 27, 2018, he told Complainant to give him money for the cash reserve. Complainant attested that, on January 27, 2018, he refused to pay, but he had paid a total of $18 for the cash reserve. He attested that Clerk, witnessed the first and third incidents and there were no witnesses to the second incident. Postmaster attested that he was the manager who counted the employees’ credit at the retail operation, but he denied the allegations. He attested that all clerks’ cash drawers are counted quarterly and clerk cash credits and cash reserves were counted at the same time. He explained that if the credits were counted and a credit was short and another was over, they would take the overage and apply it to the shortage. He attested that Complainant was never required to pay any cash reserve shortages nor was he threatened if he did not pay. Clerk attested that she remembered one instance when Complainant had to pay money to Postmaster when the cash reserve was short, but she did not recall when this occurred or how much money was involved. 2020001930 5 Regarding claim (4), Complainant attested that Postmaster and Supervisor were responsible for reducing his hours and requiring him to take a 3-hour lunch, starting in February 2018. He attested that, after he had worked for several hours, Supervisor would tell him that it was time for his lunch break and have a co-worker (CW1) cover these extended lunch breaks that Complainant did not request. Complainant alleged that sometimes CW1 was paid overtime simply to decrease Complainant’s regular overtime because they preferred CW1 to him. Supervisor attested that, on February 8, 2018, Complainant worked 9.47 hours between 07:01 and 16:98 and his lunch was 0.50 hours. He attested that Complainant did not take a 3-hour lunch. Postmaster attested that he did not require Complainant to take a 3-hour lunch, but Complainant was scheduled for this lunch period with CW1 in order to manage the work week total hours of employees. He explained that CW1, a PTF from another office, was brought in because this was the only time that she was available to help in the week’s scheduling. He attested that the circumstances that led to Complainant’s work hours being reduced and his being required to take a 3-hour lunch were that, when projecting the employee’s work week, his hours were high. Regarding claim (6), Complainant attested that, from April 2018 to April 2019, Postmaster and Supervisor were responsible for his being denied the opportunity to receive night differential pay. He attested that, prior to the hiring of a new PTF (CW2), he expressed an interest in working the 5 AM shift and, after she was hired, his request was refused. Complainant alleged that Supervisor said this was because he and Postmaster did not get along. He attested that he was not allowed to start working the morning shifts until after Postmaster stopped working Saturdays. Supervisor attested that the decision to assign CW2 to the early morning shift was made in consultation with Postmaster and it was based on operational needs. Supervisor attested that the early morning shift includes distribution and CW2 was given the opportunity to learn the scheme under the tutelage of Postmaster. He attested that this allowed CW2 to work the window when his experience and speed at transactions would assure good customer service. Supervisor explained that Complainant and PFTs generally were not entitled to a preferred or choice schedule. Postmaster attested that that management team confers and decides the shifts that employees work and the workload for office continuity. He attested that CW2 was assigned to the early morning shift and Complainant was not provided a reason for this, noting that it had no impact on Complainant and he was not aware that the night differential was a problem. He attested that Complainant requested the early shift through Supervisor and office stability and continuity was the reason he was not assigned to the morning shift. 2020001930 6 Regarding claim (7), Complainant attested that he applied for SL on September 12, 2018. He attested that he told Supervisor that he had a medical appointment at 11 am and would call as soon as he was done to let him know when he could report back to work, but he should be back before 3 pm. He attested that Supervisor approved the request, but Postmaster wrote on the request that he needed more information. Complainant attested that Postmaster changed his request to LWOP between September 12 and 21, 2018, so he rescheduled for an earlier appointment to avoid losing money. Complainant alleged that he was not allowed to use SL and had to move his appointment to decrease the amount of LWOP. Supervisor attested that PTF leave is not granted that would place an employee in overtime status and documentation is required for SL. He also attested that he was not aware of Complainant being charged with LWOP. Postmaster attested that he had a discussion with Supervisor regarding PTFs (part-time flexible employees) not having set schedules and Supervisor non-scheduled Complainant because, as a PTF, he does not have a set schedule. He attested that Complainant was not charged LWOP for this leave request and Complainant’s schedule was modified to give him the time off he requested. He attested that Complainant put in a leave slip and this leave was scheduled time off and a PTFs schedule is then adjusted to reflect the time requested. Regarding claim (8), Complainant attested that, at least three times prior to November 10, 2018, and in 5 pay periods since then, Supervisor and Postmaster did not process his hours, causing his pay to be delayed. These pay periods involved time when he worked at the Cheshire facility. He attested that it only happened to him until after he complained, and another employee’s pay was incorrect. Supervisor attested that he entered employees’ timecards into TACS. He explained that Cheshire is a non-EBR office and manual entries must be made into the TACS program. He explained that he was new to the TACS program and made mistakes, including missing closeout. He attested that he apologized to Complainant and told him that he was working on a process to get it right. He attested that this was his mistake and not an attempt to withhold pay for hours worked. Postmaster attested that Supervisor made a mistake with entering time into the system for Complainant. Regarding claim (9), Complainant attested that, on March 22, 2019, Postmaster told him that he did not know if he could do a salary advance and that he would get back to him but never did. He attested that, at the end of March, Supervisor told him he could wait until his next paycheck because he only messed up some of his pay. Supervisor attested that Complainant’s request for a pay advance was denied in consultation with Postmaster, and Complainant received a paycheck. Supervisor denied making the alleged statement and attested that he apologized, processed the pay adjustment, and told Complainant that he would work on a better process. 2020001930 7 Postmaster attested that Complainant did not formally request a pay advance from him. He attested that, when Complainant asked Supervisor for a pay advance, Supervisor had already done a pay adjustment so that he would receive his pay in the next paycheck. Regarding claim (10), Complainant attested that, on December 20, 2018, he told POOM that he wanted to know how many more hours CW2 was getting than him and when POOM resisted, Complainant told him that he hoped this could be handled with the post office and he would not need to file an EEO complaint. Complainant attested that POOM told him that he would get the hours going back as far as when CW2 started, but he did not do so until Complainant told him that he would file an EEO complaint. Complainant attested that, then, POOM said he would open an investigation, but he failed to do so. POOM attested that he told Complainant that he would open an investigation with HR, and this was the investigation performed by Coordinator that was about Complainant’s working in the mornings. He attested that he was not trying to dissuade Complainant but was trying to assist him. POOM further attested that Complainant emailed him about his concern that another employee was getting more hours and Complainant alleged he was being mistreated because he was gay. POOM attested that he looked into the matter and, after getting the clock rings, the result was that Complainant was getting more hours than the other employee and Complainant was working in different locations. POOM attested that he spoke to the Union President about the matter and referred Complainant to the Union. Coordinator attested that POOM talked to Complainant about the internal investigation and Postmaster and POOM told Complainant, after reviewing the clock rings, that Complainant was getting more hours that the other PTF. Regarding claim (12), Complainant attested that, on April 24, 2019, he sent an email to HR Manager and, after he complained, she responded on May 6, 2019. Complainant attested that HR Manager would not address his concerned and that it seemed she was misinformed by Coordinator and Postmaster during the investigation. HR Manager attested that she was not aware of any complaints from Complainant that she did not respond to his emails. She confirmed that she responded to Complainant’s April 24, 2019 email on May 6, 2019 and attested that his concerns in that email were addressed. Regarding claim (13), Complainant attested that POOM told him that he did not initiate an investigation into his claims of harassment. He attested that Coordinator was also involved in the conversation. POOM attested that, when Complainant reached out to him about his concerns about his hours and working the morning shift, he responded right away, reached out to HR, and they performed the internal investigation. 2020001930 8 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 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 him to discrimination as alleged. The instant appeal followed. On appeal, Complainant asserts that the Agency has not been cooperative in providing him information that would help his case and is concealing information from him. He reiterates his contentions that the Agency adjusted the clock rings to decrease his pay and did so because of his sexual orientation. He also alleges that the Agency discriminated against him in changing the rules regarding parking spots. He includes pictures of schedules and time and attendance records to show the disparity in hours. The Agency has not submitted a statement or brief in response. ANALYSIS AND FINDINGS 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”). Harassment Claim To establish a claim of hostile environment harassment, a 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 her 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020001930 9 In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, his sexual orientation. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Many of Complainant's harassment allegations reflect his disagreement with managerial decisions and/or policies, primarily about overtime, scheduling, time and attendance matters, cash reserve shortages, paycheck processing, and pay advances. Some of Complainant’s other allegations can be described as trivial slights and petty annoyances with management. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Complainant’s allegations include Supervisor’s use of a gay slur and Postmaster’s stated reluctance to hire another LGBT employee. We note that the Agency investigated these allegations and they were unsubstantiated. The management officials deny making the alleged comments and there is no witness corroboration to Complainant’s allegations. Thus, the evidence concerning these comments is, at best, in equipoise. As such, Complainant, who has the ultimate burden of proof, has not established these incidents occurred as alleged. Moreover, it is not clear that these allegations, even if proven true, would, standing alone, be sufficiently severe or pervasive to have altered the conditions of Complainant's employment in violation of Title VII. As alleged, these are two isolated incidents, asserted to have occurred approximately a year apart. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2020001930 10 The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant’s allegations in claims (6), (8), and (9) give rise to disparate treatment allegations.3 However, even assuming arguendo that Complainant were to establish a prima facie case with respect to these allegations, his claims would still fail. We find the Agency articulated legitimate, non-discriminatory reasons for its actions. Regarding his allegations in claim (6) of being denied the opportunity to work the early morning shift and receive night differential pay, the Agency explained that PFTs were not entitled to a preferred or choice of schedule and the decision to assign CW2 to the early morning shift, instead of Complainant, was based on operational needs, including giving CW2 a chance to learn certain aspects of the job from Postmaster, office stability, and continuity. Regarding his allegations in claim (8) that management did not timely process his paycheck with the hours he worked in Cheshire and caused his pay to be delayed, the Agency explained that Supervisor was new to entering timecards into TACS and he made mistakes manually entering the entries for Complainant’s work in Cheshire and there was a pay adjustment in Complainant’s next paycheck. Regarding his allegations in claim (9) that management denied his request for a pay advance, management explained a pay adjustment had already been done and Complainant would receive the differential in the next paycheck. We recognize that failing to timely and accurately pay Complainant is a managerial error. However, the record does not suggest that the Agency acted on the basis of Complainant’s sexual orientation in any of these instances. Therefore, we find he has failed to establish a claim of disparate treatment. 3 The record shows that Complainant initially contacted an EEO Counselor on April 7, 2019. Alleged discrete acts occurring more than 45 days prior to that date are untimely. See 29 C.F.R. §§ 1614.105(a)(1) and 1614.107(a)(2). 2020001930 11 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. 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. 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). 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. See 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). See 29 C.F.R. § 1614.403(g). Either party’s request and/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. 2020001930 12 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. 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 July 29, 2021 Date