[Redacted], Bernetta B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2022003415 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernetta B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003415 Hearing No. 410-2021-00537X Agency No. 4G-320-0033-21 DECISION On May 31, 2022, 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 April 27, 2022, final order 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., 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor, Level 17, at the Agency’s Thomson Post Office in Thomson, Georgia. On February 20, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), color, disability, age (48), and reprisal for prior protected EEO activity2 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. 2022003415 2 1. On September 29, 2020, the Postmaster marked Complainant’s leave as unscheduled; 2. On October 28, 2020, the Postmaster texted an ex-postal supervisor working at Complainant’s doctor’s office to find out about Complainant’s visit; 3. On October 28, 2020, the Postmaster scratched Complainant’s name off the leave calendar for the Thanksgiving holiday; 4. On November 19, 2020, Complainant was denied leave; 5. On November 27, 2020, Complainant was charged Absent-Without-Leave (AWOL) for an FMLA absence; 6. On November 27, 2020, Complainant’s access was suspended; 7. On a date to be specified in December, the Postmaster stated she issued keys to Complainant when she had not; and 8. On February 18, 2021, the Postmaster did not return Complainant’s leave slip and told Complainant she would return it when she felt like it. The foregoing claims were accepted for investigation. During the investigation, Postmaster (African-American, Black, female, y.o.b. 1967) testified she is aware that Complainant has an allergy condition, but she was not aware of any of her other medical conditions. She stated Complainant did not have any work-related restrictions. Postmaster attested she was not aware of Complainant’s OIG complaint. Manager-Post Office Operations (“Manager”) (African-American, light brown, male, y.o.b. 1972), Postmaster’s supervisor, testified he was unaware of any medical conditions Complainant might have, nor is he aware of, or involved in, Complainant’s prior EEO activity. Claim 1-Leave Marked as Unscheduled 2 Complainant later identified her color as brown, disability as “right-sided strain and spasm”, and reprisal as based on a prior complaint she filed with the Office of the Inspector General (“OIG”) in November 2020 and the instant complaint. The OIG complaint appears to reference improper work practices and failure to maintain security of Agency property. It does not appear to reference any discrimination or retaliation. 2022003415 3 Complainant alleged her leave on September 29, 2020, was marked unscheduled by Postmaster, despite the fact that she called Postmaster when her daughter was sick. She avers her leave was pre-scheduled because she exchanged text messages with Postmaster. Complainant asserted the Agency violated their 24-hour advance notice policy. Complainant identified a Caucasian, white, female employee who had unscheduled leave marked as scheduled. Postmaster explained that Postal Policy states that all call-ins through the line are considered unscheduled leave. She identified three employees who were also marked as having taken unscheduled leave on September and October 2020: an African-American male, an African- American female, and a Caucasian male. The record contains a Leave Usage Log List Report reflecting that on September 29, 2020, Complainant requested leave for September 29, 2020 and October 1, 2020. She was charged for 8 hours of leave on September 29, 2020. It is marked unscheduled, with leave type fSLDC. The record reflects that the coworker identified by Complainant was charged with unscheduled leave once in August 2020 and once in November 2020. Claim 2-Postmaster Made an Inappropriate Medical Inquiry Complainant testified that, on September 29, 2020, her former supervisor (“Former Supervisor”) sent a text message to Postmaster informing Postmaster that she had seen Complainant at the doctor’s office. According to Complainant, Postmaster is “always exploiting [Complainant’s] business on the workroom floor.” However, she also testified that Postmaster had not asked Complainant about text nor mentioned it to her. Postmaster acknowledged that Former Supervisor initiated a text exchange with her. She explained that Former Supervisor indicated she was now performing COVID screenings and provided brief updates on her retirement life. According to Postmaster, no details were exchanged. Records provided by Complainant show screen shots of text messages, purportedly from Former Supervisor to Postmaster, stating, “Hi, Stranger!!! I’ve been found out by your supervisor. MISS YOU!!!” Postmaster responded, “Ditto. What did she find out? How’s retirement?” Former Supervisor responded: “HIPAA wouldn’t allow me if I was privy… however, I’m”. The rest of the text and response, if any, were not provided. 2022003415 4 Claim 3-Name Taken Off Leave Calendar Complainant stated that she added her name to the leave calendar, to be off for the Thanksgiving holiday in 2020. She alleges, however, that on October 28, 2020, Postmaster crossed her name off the leave calendar. Postmaster attested she removed Complainant’s name because there was no corresponding approved leave slip. She avers that only approved leave is placed on the calendar and Complainant was not approved. Postal regulation ELM 512.411 specifies that except for emergencies, annual leave for all employees except postmasters must be requested on PS Form 3971 and approved in advance by the appropriate supervisor. Claim 4-Denied Leave Complainant testified she worked from 9:00 am to 11:00 am on November 19, 2020, but she was charged for 8 hours of sick leave that day. She indicated that another female employee was also denied leave, while a male employee was not. In response, Postmaster attested that no advanced leave request was made by Complainant for November 19, 2020. As for comparators, Postmaster explained that she did not approve the requests of other employees as that was Complainant’s responsibility. Postal regulation ELM 519.731 specifies that an exempt employee who plans to be absent from work for more than a half day on a workday should apply in advance for a full day of annual leave, sick leave, or leave without pay. Claim 5 - Charged Absent Without Leave (AWOL) On October 29, 2020, Complainant sent an email to Manager regarding claim 3 and asked him to find someone to cover her shifts. On November 18, 2020, he responded by reminding Complainant that the ELM requires all leave be submitted per 3971, not by writing on a calendar, and her leave was required to be approved in advance by her Postmaster. He advised Complainant to speak to Postmaster to resolve any issues. He also stated: “It is my expectation that you report for duty as Annual Leave was not submitted and you are aware that you cannot take leave during that time any unscheduled leave at this time will be considered AWOL.” (ROI, p. 205). Complainant identified a female employee who was also charged AWOL and a male employee whose AWOL, for missing work due to his car breaking down, was later changed to Emergency Annual Leave. Complainant submitted a FMLA request for the relevant time period, including November 27-30, 2020. However, the record reflects this request was not approved until December 2, 2020. The record also contains notes from Complainant’s physician, dated November 24, 2020 and November 30, 2020, but neither note provides an explanation of Complainant’s illness or injury. 2022003415 5 A Leave Usage Log List Report shows Complainant was charged 8 hours of AWOL for November 27, 2020 and 8 hours of AWOL for November 28, 2020. However, it also shows 23 hours and 59 minutes of fSL leave with an FMLA case ID beginning November 27, 2020. Postal regulations state that for absences in excess of three days, documentation is required. Acceptable documentation must provide an explanation of the nature of the employee’s illness or injury sufficient to indicate to management that the employee was (or will be) unable to perform his or her normal duties for the period of absence. Medical statements such as, “under care” are not acceptable. Failure to provide acceptable medical documentation can result in the leave being charged as AWOL. Claim 6-Access Suspended On November 24, 2020, Complainant went to another post office and, while she was able to login, she denied access certain programs. She testified that management suspended her access so she could not send them emails, communication, or 3971s for her requested leave. Complainant testified that Postmaster blamed someone else for this. In response to the claim, Postmaster denied having any knowledge of the incident. She asserted that she did not take the alleged action. The record reflects that the IT Service Desk advised Complainant that her eAccess to the Time and Attendance (“TACS”) program was suspended due to inactivity. Claim 7-Issuance of Keys Complainant alleges that Postmaster falsely claimed she had issued keys to Complainant when she had not done so. Complainant sent Postmaster a text stating that everyone was leaving and stated, “…you know I don’t have keys.” Postmaster replied that she had given Complainant keys, to which Complainant stated: “stop lying you never gave me keys.” Complainant states Postmaster issued her keys two days later. She testified that Postmaster had previously issued keys to a white female employee and a while male employee, but not to her. Complainant asserted that she was the Officer-in-Charge of the Thomson Post Office when Postmaster arrived at the office in July 2019. Complainant avers that at that time, she had keys and gave them to Postmaster. Postmaster testified she recalled issuing keys to Complainant in the past. When Complainant stated Postmaster had not done so, Postmaster reissued keys to Complainant. Postmaster further testified that the male employee identified by Complainant is the custodian and he is responsible for accessing all rooms for cleaning. She testified that the female employee identified by Complainant has a key to the exterior gate, but she does not have keys to the building. Claim 8- Leave Slip 2022003415 6 Complainant alleged that Postmaster did not return her leave slip and told Complainant she would return it when she felt like it. Complainant states that she is unsure of the date, but that Postmaster received a call, left the office, and when she returned, put the leave slip face down on Complainant’s desk. Complainant states this is because Complainant emailed Postmaster asking her to follow the rules concerning leave. Postmaster testified she was not aware of this alleged comment and this incident did not occur. Overall Harassment Claim Complainant testified Postmaster created a hostile work environment by abusing the power of her position. She alleged that on numerous occasions Postmaster tried to pit employees against her or lied for no apparent reason. Complainant believed the work environment was toxic and stated that she tried to move to a different office. Postmaster disputes Complainant’s claims and argues they are fabricated and unwarranted. She denied that Complainant’s race, sex, color, age, medical condition, or EEO activity were factors in any decisions she made regarding these claims. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 16, 2021, several days prior to the scheduled Initial Teleconference with the AJ, Complainant filed an additional formal complaint which also cited the same Postmaster. The parties agreed, and the AJ subsequently ordered, that the following allegations would be amended to the instant complaint: 9. The Postmaster encouraged other employees to file EEO complaints against Complainant; 10. The Postmaster called Complainant a “black cloud”; and 11. The Postmaster took leave such that Complainant was required to work in her absence on November 29 when Complainant need the time off to complete personal items before starting in her new position.3 Interrogatories were issued regarding these claims. The responses to the Interrogatories reflect the following: 3 Complainant corrected several dates: (1) occurred on September 28, 2020; (2) occurred on September 29, 2020; (5) charged AWOL on November 27, 28, and 30, 2020; (6) occurred on November 24, 2020; and (7) keys were issued on December 24, 2020. 2022003415 7 Claim 9 - Others Encouraged to File Complaints About Complainant Complainant asserted that Postmaster encouraged one of her subordinates, Bargaining Unit Employee, a full-time clerk to file an EEO complaint regarding how Complainant allegedly treated him when the Thomson Post Office was short of help in every craft and Postmaster was out on a detail. Complainant states that Bargaining Unit Employee admitted to her that Postmaster tried to coerce him into filing a EEO complaint about Complainant and he was instructed to get statements from other co-workers. She noted Bargaining Unit Employee is white and there is an age difference, but she states Postmaster primarily acted out of retaliatory motivation. Postmaster testified that Bargaining Unit Employee reported to her that Complainant had referred to him in derogatory terms and harassed him. Postmaster stated she advised Bargaining Unit Employee of his rights, but she did not encourage him. Ultimately, Bargaining Unit Employee did not file an EEO complaint. Claim 10 - Calling Complainant a “Black Cloud” Complainant testified Postmaster often refers to employees as “Sunshine”, but she referred to her as a “Black Cloud” in reference to Complainant’s transfer out of the Thompson Post Office. Complainant testified this was motivated by her race and color because she is darker in color and complexion than Postmaster. Postmaster confirmed that she calls people “Sunshine” and asserted that Complainant mocks her by calling others, including Postmaster, “Sunshine”. Postmaster explained that in response to Complainant calling her “Sunshine”, she made a joke that Complainant was no longer being “Sunshine”, since she was leave Thomson Post Office, and was now a “dark cloud”. According to Postmaster, it was simply a joke and they all laughed. 2022003415 8 Claim 11-Prevented from Taking Leave Complainant stated she was unable to take leave, from November 30, 2021 through December 3, 2021, because she had to train Acting Supervisor how to close the office. Complainant asserted she requested leave for November 29, 2021. She avers that the request was not denied, but Postmaster did not return her leave slip. Complainant states Postmaster took leave on November 11 (a holiday) as well as November 12, 19, 22, 23, and 26, 2021. Complainant states that Postmaster taking leave affected her ability to prepare for her new position which she started on December 6, 2021. Complainant’s TACS report Complainant’s TACS report indicates she also did not work on November 11, 2021 (a holiday). Complainant received higher level pay for the dates that Postmaster was out on leave in November 2021. Complainant took annual leave on November 29, 2021. She did not work on December 4-5, 2021. Postmaster’s TACS report reveal she did take leave on the dates cited by Complainant. She did not take leave from November 29, 2020 through December 4, 2021. After discovery, the Agency filed a motion for a decision without a hearing on March 22, 2022. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision on April 18, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that she was subjected to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends the record was not fully developed. She requests that the Commission reverse the Agency’s decision or declare the record to be incomplete and order further investigation or a hearing. In support of this, she provides additional explanatory information and points to statements within the ROI. She also asserts that a trier of fact is necessary to make credibility determinations. The Agency did not file a brief in response to the appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 2022003415 9 An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant contends that there are credibility issues which should have precluded summary judgment. Complainant does not, however, identify any material facts which are in dispute, but merely makes a generalized assertion that the Agency's reasons should not be believed. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm'n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. 2022003415 10 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In Claim 1, the Agency explained that because Complainant’s leave was requested and taken on the same day, it was marked as unscheduled. Postmaster responded to a text from Former Supervisor, but did not inquire about Complainant’s appointment (Claim 2). Regarding Claim 3, Postmaster removed Complainant’s name/leave from the calendar because Complainant did not have approved leave for those dates. In Claim 4, Complainant acknowledged she did not work a full day and postal regulations require that exempt employees who work less than half a full day must take a full day of leave. Therefore, she was charged 8 hours of sick leave. With respect to Claim 5, Complainant was advised that she needed to be at work on the dates in question or she would be marked AWOL. When Complainant did not report to work on those dates, and her FMLA request had not yet been approved, she was charged AWOL. For Claim 6, Complainant’s access to the TACS systems was suspended due to inactivity. At the time, Complainant was incapacitated and out of work. Postmaster recalled having given keys to Complainant, with respect to Claim 7. When Complainant insisted she had not, Postmaster issued keys to Complainant. Postmaster did not recall the incident described in Claim 8 and Complainant did not attest that her leave slip was not returned. Postmaster advised an employee of his right to file an EEO complaint regarding comments he alleged Complainant made to him; she denied encouraging him to file (Claim 9). Postmaster admitted calling Complainant a “black cloud”, stating it was a joke about Complainant transferring out of the Thomson Post Office. Regarding Claim 11, no leave requests were denied, Complainant received higher pay on the days she worked for Postmaster, and Complainant had to train an Acting Supervisor before she left. Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on her race, color, age, sex, disability, or prior EEO activity. The record is devoid of any evidence of discriminatory or retaliatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Complainant and Postmaster were both long-time Agency employees who appear to have differing opinions on how things should be done. 2022003415 11 Harassment and Hostile Work Environment Complainant has alleged the Agency subjected her to harassment, noting several alleged instances. To establish a claim of a hostile work environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she 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 her race, religion, sex, national origin, or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant's allegations can generally be described as relating to disagreements over how work should be done, trivial slights, personality conflicts, and/or petty annoyances between Complainant and her supervisors and/or co-workers. 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) (the 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). In the instant case, we find that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence that discriminatory or retaliatory animus played a role in any of the Agency's actions. Thus, Complainant has failed to meet her burden in establishing she was subjected to unlawful discriminatory harassment. 2022003415 12 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2022003415 13 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 October 26, 2022 Date