[Redacted], Buck H., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 23, 2021

Appeal No. 2019001811 (E.E.O.C. Mar. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buck H.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019001811 Hearing No. 480-2015-00306X Agency No. SF-14-0305-SSA DECISION Complainant timely 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 February 1, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are whether: 1) summary judgment was appropriate; and, 2) whether the Agency subjected Complainant to a hostile work environment and discrimination on the bases of disability, sex, parental status, and in reprisal for prior protected EEO activity. 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. 2019001811 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Case Technician at the Agency’s Office of Disability of Adjudication and Review (ODAR) Hearing Office in Santa Barbara, California. On June 27, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the basis of disability2 (mental and physical), sex (sexual orientation)3, parental status4 (caring for his parents), and reprisal for prior protected EEO activity when: 1. since February 2013, management has subjected Complainant to repeated investigatory and disciplinary Weingarten meetings without valid cause; criticism of his work performance; threats of disciplinary action, including termination; and, management failed to investigate Complainant's allegations of harassment by another coworker; 2. on February 20, 2014, Complainant was issued a Decision to Suspend for two (2) calendar days; and, 3. on June 19, 2014, Complainant was issued a Decision to Suspend for seven (7) calendar days; and, 4. during February, March, and June of 2014, management forced Complainant to use 35 hours of advanced annual leave rather than 35 hours of sick leave. 2 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 3 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 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). 4 We note that in general, parental status is not a protected class covered by the statutes enforced in the Federal EEO process. See 29 C.F.R. § 1614.101. 2019001811 3 The investigative record reflects the following pertinent matters relating to the subject claims. Claims 1 - 3 On February 12, 2013, Complainant and his coworkers were talking about a serial killer reported in the recent news. One of the coworkers mentioned that the serial killer was targeting Asians and lesbians and that their coworker, CW1, would be a target. Complainant then stated that the lead case technician, CW2, who was present, would also be on the serial killer’s list. On February 13, 2013, CW2 complained to Complainant’s first-line supervisor, the Group Supervisor (Responsible Management Official 1, RMO1) about Complainant’s comment. Specifically, CW2 stated that Complainant’s comments revealed her sexuality as a lesbian, a matter that she had kept private until that point. RMO1 obtained statements from witnesses present and the statements corroborated CW2’s allegation that Complainant had stated she (CW2) would be on the serial killer’s list. On February 14, 2013, Complainant countered CW2’s complaint and noted that in January 2013, CW2 had loudly asked him if his HIV medications “kicked his butt.” He noted that it made him uncomfortable as he did not want the office to know of his HIV status. On February 20, 2013, RMO1 and another Group Supervisor (RMO2) conducted Weingarten investigations of Complainant and CW2’s allegations against each other. Management collected statements and conducted thorough investigations regarding both incidents. On March 29, 2013, RMO1 notified Complainant that management did not find any corroboration of Complainant’s complaint about CW2, and that the investigation would be closed. On July 23, 2013, RMO1 had to take medical leave for approximately four months. On September 5, 2013, Complainant wrote an email regarding scheduling and wrote sentences in all capital letters. On September 9, 2013, Complainant wrote an email to his union representative complaining about RMO2 telling Complainant that "utilizing capital letters in an official email or memo is the same as shouting at the person who is the recipient of that email". On December 16, 2013, RMO1 issued Complainant a proposed notice of suspension of two calendar days for Conduct Unbecoming a Federal Employee, specifically for speaking to CW2 in an improper manner on February 12, 2013. RMO1 asserted that Complainant was afforded the opportunity in the notice to make an oral or a written reply to the deciding official, which was his second-line supervisor, the Hearing Office Director (RMO3). On December 17, 2013, Complainant faxed a statement with an Agency fax coversheet with the Agency logo to a former employee (CW3) during the work day. Complainant requested that CW3 sign the attached statement stating that she (CW3) had not heard Complainant say anything about lesbians to CW2 on February 12, 2013. 2019001811 4 On that same day, Complainant also texted CW3 about the statement and asked her to sign. CW3 refused to sign the statement. Following CW3’s refusal, Complainant sent her a negative text message. On January 2, 2014, Complainant submitted both an oral and a written reply regarding the December 16, 2013, notice of suspension. On February 20, 2014, RMO3 affirmed the decision to suspend Complainant for two calendar days. On April 25, 2014, RMO1 issued Complainant a proposed seven-day suspension. RMO1 charged Complainant with Conduct Unbecoming of a Federal Employee. The charges stemmed from Complainant sending a fax on Agency letterhead and sending an inappropriate text message to CW3. In addition, RMO1 stated that Complainant was also charged with misconduct because of a confrontation between the two of them on February 3, 2014, in which she asserted that Complainant had entered her office, closed the door, and spoke to her in a very threatening tone. The Regional Attorney-Advisor (RMO4) advised on the process of issuing the seven-calendar day suspension letter to Complainant. RMO4 stated that there were three specifications on which the misconduct charge was based: 1) Complainant used an official Agency fax coversheet to send a personal letter to CW3; 2) Complainant sent an inappropriate text message to CW3 while on duty; and, 3) on February 3, 2014, Complainant was unprofessional and discourteous to RMO1. On June 19, 2014, RMO3 issued Complainant a Decision to Suspend for seven calendar days based on RMO1’s proposed suspension charge. Claim 4 Complainant testified that RMO3 forced him to use 35 hours of advanced annual leave during February, March, and June of 2014 rather than sick leave. Complainant noted that he was the primary caregiver for his aging parents and had requested advanced leave based on family issues. Complainant noted that he had submitted FMLA requests to care for his parents. RMO1 and RMO3 denied forcing Complainant to take advanced annual leave and noted that SF-71 leave requests submitted by Complainant requested advanced annual, not sick, leave. Upon Complainant’s request, management amended his leave slips to reflect 35 hours of advanced sick leave. The record demonstrated that leave requests submitted during the relevant time were marked as a mix of advanced annual leave and as advanced sick leave. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 5, 2015, motion for a decision without a hearing and issued a decision without a hearing on the Agency’s favor on December 21, 2018. 2019001811 5 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant asserted that the AJ entered a favorable decision for the Agency but seemingly dismissed evidence that would have supported a decision in his favor. Specifically, Complainant found it suspicious that no credibility was seemingly given to an administrative judge who worked in his (Complainant’s) office. Complainant noted that the administrative judge that he worked with provided credible testimony that Complainant was subjected to a hostile work environment. Complainant argued that summary judgment was clearly inappropriate, and that he had demonstrated that there were disputed issues of material fact regarding his claims that make a hearing necessary. The Agency asserted that the AJ thoroughly evaluated the allegations, which was consistent with Commission case law. The Agency asserted that the AJ properly found that Complainant failed to establish discriminatory intent of Complainant’s managers in their actions at issue, and that Complainant could not rebut the Agency’s proffered legitimate and non-discriminatory reasons for its actions. The Agency also noted that Complainant failed to raise any new evidence, or issues, in his appeal that would undermine the AJ’s findings. Accordingly, the Agency requests that the Commission affirms its decision implementing the AJ’s findings of no discrimination. ANALYSIS AND FINDINGS Standard of Review We first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 2019001811 6 To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserted that the AJ inappropriately entered a favorable decision for the Agency and seemingly dismissed evidence that would have supported a decision in his favor. Specifically, Complainant found it suspicious that no credibility was given to an administrative judge who worked in his office, who had attested on his behalf. Complainant argued that lack of acknowledgement towards that witness statement demonstrated that there were disputed issues of material fact regarding his claims making a hearing necessary. We have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on his pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Based on the record, we find that summary judgment was appropriate, and that the Agency was entitled to a grant of summary judgment as a matter of law. We have considered Complainant's arguments in his opposition to the motion for summary judgment and on appeal. Specifically, Complainant argued that the AJ’s apparent exclusion of one of his witness statements was suspicious. However, in this matter, the witness statement was clearly included in the record. The witness’s statement does not create a genuine issue of material fact with respect to events alleged in the instant complaint. Although the witness suggested that Complainant had been mistreated, the witness did not directly attribute the treatment to Complainant’s protected bases. In addition, Complainant had ample opportunity and time, and did in fact, respond to the Agency’s Motion for Summary Judgment. The AJ’s lack of discussion of this particular witness is insufficient, alone, to find that summary judgment was inappropriate. We conclude that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. 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). 2019001811 7 For a complainant to prevail, he 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, n. 13; 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. 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. 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 the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Unlawful Harassment Complainant also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, 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 his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). 2019001811 8 With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Reprisal Complainant also alleges that the Agency retaliated against him. In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). ANALYSIS Disparate Treatment With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claims 1 and 2, the incidents described were connected to the February 12, 2013 incident. In these claims, internal Weingarten investigations were conducted based on CW2’s and Complainant’s allegations against each other. Statements gathered corroborated CW2’s allegations against Complainant, but not of Complainant’s allegations against CW2. On December 16, 2013, RMO1 issued Complainant a proposed notice of suspension of two calendar days for Conduct Unbecoming a Federal Employee, specifically for speaking to CW2 in an improper manner on February 12, 2013. On February 20, 2014, RMO3 issued a Decision to Suspend for two calendar days based on the February 12, 2013 incident. The AJ found, and the Commission agrees, that there is no evidence that the responsible management officials were “motivated by anything other than an interest in investigating various misconduct brought to their attention,” “an interest in imposing tailored discipline,” and an interest in improving Complainant’s work by providing constructive feedback. Finally, the AJ found that there was no evidence supporting Complainant’s complaint that management failed to properly investigate his allegations of harassment by a co-worker, because management did investigate the matter and found no corroboration for his claims. Based on the record, the decision to conduct the investigations, and to suspend Complainant was based on Complainant’s actions, and not upon his protected classes or in retaliation. 2019001811 9 Regarding claim 3, on June 19, 2014, Complainant was issued a Decision to Suspend for seven calendar days. This decision was also connected to the February 12, 2013 incident. Here, Complainant acknowledged that he utilized Agency materials while on duty in an attempt to get CW3 to attest on his behalf. Complainant also acknowledged that when he did not receive the response he desired that he sent a negative text to CW3. The seven-day suspension also considered Complainant’s unprofessionalism towards RMO1. There is no indication that the suspension was issued based on anything other than Complainant’s own acknowledged conduct. Regarding claim 4, the AJ noted that Complainant admitted that he was not “forced” to take annual leave as he alleged. Moreover, we note that during the relevant time period, several of the leave request forms submitted by Complainant were marked as advance annual leave requests, with notations that he was caring for a sick parent. Furthermore, once RMO1 was contacted regarding the matter, the 35 hours of advance annual leave was corrected to reflect advance sick leave. There is no evidence of discriminatory animus on the basis of his protected classes or reprisal based on this claim. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for its actions for which Complainant has failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. 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. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. Hostile Work Environment Complainant alleged that he was subjected to a hostile work environment based on his sexual orientation, disability, and reprisal. As an initial matter, Complainant has established parts 1 and 2 of a prima facie case of harassment. To establish part 3 of his prima facie case of harassment, Complainant argued that he was treated differently based on his protected classes and in retaliation for engaging in EEO activity. Here, Complainant asserted that he was subjected to repeated investigatory and disciplinary Weingarten meetings, threats of and actual disciplinary actions, unfair criticism of his work, failure of management to take his concerns seriously against CW2 and failure by management to investigate his claims against her. Additionally, Complainant asserted that management forced him to take advanced annual leave instead of the advanced sick leave he had requested. 2019001811 10 We now turn to part 4 of the prima face case of harassment. Complainant argued that management’s actions created a hostile work environment for him. However, analyzing the record as a whole, we find that the record demonstrates that the incidents do not demonstrate that Complainant was subjected to a hostile work environment, or discrimination. In sum, the evidence does not support a finding of discrimination on any basis, the presence of discriminatory animus, or the existence of a hostile work environment. The Commission notes that a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Parental Status & FMLA Lastly, the Commission has no jurisdiction over claims of parental status discrimination. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. §1614.103, 106(a). Thus, a claim of discrimination based on parental status fails to state a claim. Moran v. Dep't of Veterans Affairs, 01A10499 (Oct. 8, 2002). To the extent that Complainant claims the Agency violated his FMLA rights, we note that the FMLA falls under the regulatory ambit of the Department of Labor, not the Commission. Therefore, the Commission has no jurisdiction over this type of claim. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012). Here, as detailed by the record and in the AJ’s well-reasoned decision, the record supports the AJ’s determination that the Agency’s proffered reasons were legitimate and non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s actions were pretext for discrimination or unlawful retaliation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we therefore AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. 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. 2019001811 11 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. 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. 2019001811 12 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, Director Office of Federal Operations March 23, 2021 Date