[Redacted], Buffy L., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2020001709 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Buffy L.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2020001709 Hearing No. 570-2017-00259X Agency No. NCN-16-HQ-00016 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 25, 2019, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director, Workforce Systems and Account Division at the Agency’s Office of Human Capital 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. 2020001709 2 Management (OHCM) in Washington, D.C. Complainant stated that in October 2014, the Assistant Administrator (AA1) required her to take two weeks of leave, believing that it was important for her be at home to take care of a personal matter. Complainant Deposition at 58-59. In July 2015, AA1 retired and another Assistant Administrator (AA2) (age 38, female) became Complainant’s second-line supervisor.2 Report of Investigation (ROI) at 51. On November 6, 2015, Complainant received her annual performance rating of “Level 2,” and she immediately requested a higher-level review. ROI at 203. On December 9, 2015, Complainant was informed that the Performance Review Board (PRB) determined that Complainant’s overall performance rating should remain “minimally successful.” ROI at 137. Complainant stated that on December 16, 2015, her first-line supervisor (S1) (age 63, female) and AA2 gave her a small magnetic stone with the inscription, “I am focused.” Complainant Deposition at 643. Complainant was reassigned to a position as a Special Assistant, with an effective date of November 29, 2015. ROI at 158. On March 25, 2016, Complainant filed an EEO complaint alleging that the Agency: 1. subjected her to a hostile work environment on the bases of sex (female) and age (45), and in reprisal for prior protected EEO activity when: a. since 2014, Complainant was excluded from work-related meetings; b. in October 2014, Complainant was required to take two-weeks annual leave because of her parental status;3 c. since 2013, unfavorable comments were made about Complainant’s appearance; and d. on December 16, 2015, management gave Complainant an offensive gift inscribed with the phrase, “I am focused!” and 2. discriminated against her based on her sex and age, and in reprisal for prior protected EEO activity when: a. in November 2015, the Agency issued Complainant an unfairly low performance rating of “2,” and negative comments were placed in her Standard Performance Appraisal Communication Environment interim performance plan for the 2015- 2016 rating period; 2 The EEO investigator did not obtain a statement from AA1 for this complaint. 3 Complainant’s counsel stated that Complainant did not include parental status as a basis for discrimination in her complaint. ROI at 35. 2020001709 3 b. on or about December 13, 2015, Complainant’s request to reconsider her 2015- 2016 performance rating was denied; and c. on or about December 4, 2015, Complainant was reassigned from her position as Director, Workforce Systems and Account Division, to a Special Assistant position, which significantly curtailed her duties and responsibilities. On September 21, 2016, the Agency accepted Complainant’s claims for investigation, except the retaliation claim.4 ROI at 33-34. Beginning on November 18, 2016, the EEO investigator contacted Complainant’s attorney regarding Complainant’s participation in the investigation, but Complainant did not provide an affidavit or rebuttal statement for the investigation. ROI at 45. On November 29, 2016, Complainant requested a hearing with the EEOC because the Agency had not completed the investigation within 180 days. Over Complainant’s objections, the EEOC Administrative Judge (AJ) assigned to the case granted the Agency’s May 20, 2019, motion for a decision without a hearing and issued a decision without a hearing on October 31, 2019. The AJ found that, even taking Complainant’s statement of facts as true, she failed to demonstrate that a genuine issue existed that her age and sex motivated the Agency’s actions. For example, the AJ noted that the comment included in Complainant’s performance appraisal, “Complainant did engage in executive coaching, but no evidence of her involvement or progress was evident to the OHCM management,” and the comments that Complainant’s manner of dressing was “conservative” were not sufficient to create a genuine issue that Complainant’s age and sex were the motivation of any of the Agency’s actions. The AJ also found that the Agency gave legitimate reasons for rating Complainant’s performance at a “minimally successful” level; namely, Complainant needed to improve her leadership of her subordinates. The AJ determined that Complainant did not show that the Agency subjected her to unlawful harassment because she failed to show that the complained of incidents were motivated by sex or age, and that they were normal workplace tribulations and typical comments between a supervisor and subordinate. The AJ also found that there was no evidence that the incidents were sufficiently severe or pervasive to alter the terms or conditions of Complainant’s employment. The AJ concluded that summary judgment was appropriate for Complainant’s complaint. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 4 Complainant alleged retaliation for “exercising a reconsideration process or other avenues to try and get other senior officials at the Agency to arbitrate an honest, unbiased view of the situation.” Complainant Deposition at 11. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s dismissal of her reprisal claim; as such, we will not address it in the instant decision. 2020001709 4 Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that summary judgment was not appropriate because there are material facts in dispute and credibility issues. Complainant contends that the AJ’s decision was less than five pages and contained “scant legal reasoning,” with unsupported conclusions of fact and law, and that the AJ drew inferences in favor of the non-moving party. Complainant asserts that the AJ adopted the Agency’s Statement of Undisputed Facts and failed to acknowledge her argument that the Agency’s statement of facts was “severely truncated and incomplete.” Complainant states that she provided a more complete statement of facts and included her sworn deposition, and that there are material facts in genuine dispute. For example, she argues that there are genuine factual disputes regarding whether Complainant’s 2015 performance evaluation was justified, and the narrative comments were motivated by her age or sex; whether Complainant was the only one who received a stone in 2015; and whether S1 and AA2 were aware of Complainant’s age. Complainant states that, when the AJ concluded that Complainant failed to demonstrate that age or sex motivated the Agency’s actions, she did not address Complainant’s sworn testimony when she stated that she was “criticized and ridiculed for not participating in changing to fit in more with the younger culture” and because she wore business suits and pants. Complainant asserts that, if she did not participate in office dance parties and “dress like a pirate day,” she was harassed. Complainant also states that management would call her a “fossil” because she preferred to use a paper notebook instead of a tablet or computer. Complainant argues that she presented evidence that management’s actions altered the terms and conditions of her employment, such as being excluded from senior leadership meetings and being required to use annual leave after a domestic incident and check in every day when she was on leave. Regarding her performance evaluation, Complainant states that the comments about her not balancing change and continuity was evidence of age discrimination. Complainant notes that while S1 and AA2 stated that everyone got a stone, she asked her coworkers and they informed her that they did not receive stones. Complainant asserts that the AJ’s decision did not detail why this evidence did not justify a hearing, and that it did not appear as if the AJ drew inferences in the non-moving party’s favor. Complainant also argues that the AJ did not address the Agency’s arguments that her testimony was self-serving and “theories and speculation,” which gives credence to the conclusion that the AJ improperly weighed the evidence in favor of the moving party. 2020001709 5 Complainant argues that a hearing is needed for the AJ to determine if Complainant was credible in her assertions that management officials subjected her to harassment, scrutiny, and criticisms motivated by her age and sex. Complainant requests that the Commission vacate the Agency’s final order and remand her complaint for a hearing. Agency’s Contentions The Agency opposes Complainant’s appeal and asserts that the AJ’s decision is supported by conclusions of law and facts. As an initial matter, the Agency states that while Complainant took issue with the AJ’s decision totaling less than five pages and containing “boilerplate language,” she did not identify how many pages she believed the decision should contain, or which sections were “boilerplate.” The Agency asserts that Complainant fails to appreciate the legal reasoning contained in the AJ’s decision. The Agency states that the AJ properly issued a decision without a hearing after correctly finding that the investigative record was complete, the parties had an opportunity to engage in discovery, and there were no genuine disputes of material facts. The Agency notes that the AJ made it clear that she viewed the evidence in the light most favorable to Complainant and that the AJ stated that, even accepting Complainant’s facts as true, they were insufficient to create any genuine issues that the Agency’s actions were motivated by her age or sex. The Agency argues that, while Complainant disagreed with the AJ’s conclusions, her allegations that the AJ did not engage in analysis or explanation were untrue. The Agency asserts that Complainant lumps multiple incidents together and links them all to age and sex, even though her argument was contradicted by the evidence. For example, Complainant argued that comments related to her participation in the dance parties were linked to her age because people allegedly called her a “fossil.” The Agency notes that Complainant’s testimony related to being called a “fossil” was in the context of her preferring a notebook to a computer, and that there is no evidence that Complainant was called a “fossil” regarding her participation in dance parties. In addition, the Agency notes that Complainant testified that there were other reasons for the Agency’s actions. For example, Complainant stated that she was excluded from meetings because her managers “didn’t care for [her] leadership style.” The Agency also asserts that Complainant failed to articulate how the incidents fall outside the scope of “simple teasing.” The Agency argues that Complainant ignored the AJ’s statement that she assumed Complainant’s statement of facts and that there is no need for a hearing for the AJ to determine if Complainant was credible in her assertions. The Agency also notes that Complainant misstates its earlier argument about Complainant’s “theories and speculation” because its argument is that there is no evidence that the complained of comments and incidents were motivated by discriminatory animus, and it was not related to Complainant’s credibility. The Agency requests that the Commission affirm its final order adopting the AJ’s decision. 2020001709 6 ANALYSIS AND FINDINGS Standard of Review In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Decision without a hearing We 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. See 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. 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 argued that a decision without a hearing was not appropriate because there are genuine disputes of material facts and a need for a credibility determination. 2020001709 7 Complainant argued that there are genuine disputes of material facts, for example, whether Complainant’s 2015 performance evaluation was justified, and the narrative comments were motivated by her age or sex; whether Complainant was the only one who received a stone in 2015; and whether S1 and AA2 were aware of Complainant’s age. However, we find that Complainant did not establish any genuine disputes. Regarding Complainant’s performance evaluation, Complainant argued that the comments about her not balancing change and continuity was evidence of age discrimination, but she did not provide any evidence that these comments were tied to her age. We note 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 Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001)). Complainant also argued that she was the only one who received a stone and cited to her sworn testimony that two coworkers informed her that they did not receive stones. However, Complainant conceded that they may have stated that they did not receive stones because they saw how upset Complainant was and did not want to continue the conversation. Complainant Deposition at 247. In addition, Complainant stated that she was aware of another employee who also received a stone, defeating her own argument. Complainant Deposition at 91-92. In support of her assertion that S1 and AA2 were aware of her age, Complainant cited to emails regarding the upcoming birthdays of staff members. While Complainant argued that this showed that S1 and AA2 were untruthful when they stated that they were not aware of her age, we find that the provided evidence does not support Complainant’s assertion because the emails only note staff members’ birthdates, without any reference to their ages or their birth years. Complainant also argued that a hearing is needed for the AJ to determine if Complainant was credible in her assertions that management officials subjected her to harassment, scrutiny, and criticisms motivated by her age and sex. However, we note that the AJ considered Complainant’s facts as true, and there is no need for a hearing to make credibility determinations. As such, we find that the AJ properly issued a decision without a hearing. Harassment Harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2020001709 8 We find that Complainant belongs to statutorily protected classes based on her age and sex, and that she was subjected to unwelcome verbal conduct. However, Complainant did not show that incidents 1a, 1b, or 1d were due to her protected categories. Regarding Complainant’s allegation that she was excluded from meetings, S1 stated that, in July 2015, Complainant was detailed to a position in the Office of the Chief Financial Officer and later reassigned to her position as a Special Assistant, and that Complainant was not included in leadership meetings because she was no longer in a supervisory position. ROI at 49. In addition, Complainant stated that she believed that she was excluded from meetings because her managers “didn’t care for [her] management style or how [she] conducted business.” Complainant Deposition at 56. For the two-week leave, S1 stated that Complainant frequently discussed her home situation with her supervisors and coworkers, and that S1 and AA1 both suggested that Complainant take leave to work on the issues, rest, and spend time with her children. S1 stated that AA1’s suggestion to take leave was not punitive and was done out of sincere concern for Complainant’s well-being. ROI at 49. Complainant added that AA1 “honestly felt [Complainant] didn’t grasp the magnitude of what happened.” Complainant Deposition at 64. Regarding the “I am focused” stone, S1 stated that she and AA2 purchased the stone magnets to give to the staff during the holiday season as a token of appreciation. S1 stated that they purchased six different types and randomly gave them out, and that there was no deliberate decision on who received what message. ROI at 50. AA2 corroborated that the stones were randomly distributed. ROI at 57. While Complainant alleged that she was deliberately given the “I am focused” message, we find that there is no evidence that Complainant received that stone due to her age or sex. In addition, there is no evidence that any comments related to Complainant’s reluctance to participate in office dance parties, or to dress like a pirate, were connected to her age or sex. Even crediting Complainant’s assertions that the comments related to her clothing were based on her sex, and that the “fossil” comments were due to her age, we find that they were not sufficiently severe or pervasive to rise to the level of unlawful harassment. Complainant testified that the management officials would make comments about her clothing and “casually joke it off”; that others would comment “in a caring, jokingly” manner; and that management officials would “crack the joke” that Complainant was a “fossil” for using a notebook. Complainant Deposition at 69-70, 161-62. Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” Battle v. U.S. Postal Serv., EEOC Appeal No. 0120083387 (Feb. 4, 2010); Kozak v. U.S. Postal Serv., EEOC Appeal No. 01A63021 (Aug. 23, 2006). While Complainant asserted that the terms and conditions of her employment were affected, we previously noted that there was no evidence that Complainant’s exclusion from any meetings or the requirement to take leave were due to her age or sex. Accordingly, we find that Complainant did not establish that the Agency harassed her based on her age or sex. 2020001709 9 Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-16 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for her 2015 performance evaluation and reassignment to a Special Assistant position. Regarding Complainant’s performance evaluation, AA2 stated that she gave Complainant an overall Minimally Successful rating due to her performance in the elements of Leading Change, Leading People, and Results Driven. For example, AA2 stated that the Enterprise Architecture project had to be reassigned from Complainant because the team was not functioning well under her leadership and the project was not progressing. AA2 added that she served on the PRB but recused herself from Complainant’s reconsideration request, which was ultimately denied. AA2 stated that she was not aware of any interim performance plan. ROI at 57-58. For Complainant’s reassignment, S1 stated that their office reorganized from three divisions to two, and that they created the Special Assignment position for Complainant, following her return from her detail assignment. S1 stated that Complainant seemed positive about the new role because it would utilize her budget and information technology experience. ROI at 52. We note that the record shows that Complainant met with S1 and AA2 to discuss the duties for this newly created position, and that following their discussions, Complainant informed them that she was “encouraged by this opportunity to contribute.” ROI at 148. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2020001709 10 On appeal, Complainant did not offer any arguments or evidence to show pretext for discrimination. Complainant made only bare assertions that management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s decisions related to Complainant’s 2015 performance evaluation or reassignment to a Special Assistant position. As such, we find that Complainant did not establish that the Agency discriminated against her based on her age or sex. 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 without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age or sex. 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 2020001709 11 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. 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. 2020001709 12 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 June 17, 2021 Date