[Redacted], Cedrick S., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2020003661 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cedrick S.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020003661 Hearing No. 570-2017-00728X Agency No. 9N9D16013 DECISION 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 March 25, 2020, final decision 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. 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 VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a Custodial Worker (Housekeeper), NA-3566/NA-01, at the 86th Force Support Squadron (FSS), Mega Lodging Property, Ramstein Air Base (RAB), Germany. Complainant began working for the Agency in February 1997. He worked as a Housekeeper from 1997 - 1998. From 1998 - 2002 he worked as a mechanic. In 2002, he returned to working as a Housekeeper. On March 15, 2010, while working as a Housekeeper, he suffered an on-the-job injury. Between 2010 and 2013, Complainant was “on and off work.” 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. 2020003661 2 The Agency noted Complainant did not return to work after April 14, 2014. Complainant filed a Workers’ Compensation claim which was contested by the Agency. The record contains a March 14, 2016 email from Person A, Human Resource Specialist, Non- Appropriated Fund (NAF) Human Resources Office (HRO), RAB, Germany to Person B, Claims Examiner with Air Force Insurance, Workers’ Compensation Branch, Air Force Services Activity (AFSVA), Lackland Air Force Base (AFB), Texas requesting the status of Complainant’s Workers’ Compensation case. Person A noted that the Agency was trying to remove Complainant from their rolls and needed to get Workers’ Compensation approval first. In a March 17, 2016 email, Person B informed Person A that a settlement agreement was pending, but that he did not know the details. Person B stated that if they would like to remove Complainant from the employment rolls, the request could be sent to him and he would have their legal department review it. On March 29, 2016, the Department of Labor, Office of Workers’ Compensation Programs (OWCP) issued an order approving a negotiated settlement agreement between Complainant and the Agency. As a result of the agreement, Complainant received a lump sum payment and attorney’s fees as settlement of his OWCP claim. In a May 3, 2016 email, Person A sent Person B an “approval request” to remove Complainant from the rolls. In a May 4, 2016 reply, Person B asked Person A to reflect that Person C, AFSVA Attorney, Chief, NAF Personnel Law mentioned that Complainant agreed to resign during settlement proceedings. On May 4, 2016, Complainant sent Person A an email with the subject “Seeking a Part Time Position.” Complainant thanked Person A for inquiring about his future employment and stated he has been waiting for someone at HRO to inquire about his medical condition and employment possibilities with his condition. On May 9, 2016, Person A informed Person B she did not see the agreement to resign in the settlement agreement and asked if it was put into writing. Further, she inquired whether they knew Complainant’s current medical status. On May 9, 2016, Person B told Person A that she did not need to review the settlement agreement to remove Complainant from the rolls. He stated there was nothing in writing because it was discussed during settlement proceedings. Further, he stated “[h]is medical status is most likely the same as it has been over the last few years, but probably worse I would say. I do not have any updated medical information on his case.” On May 10, 2016, Person A emailed Person B and Person C regarding the matter. Person A noted the Workers’ Compensation case was closed and asked if Complainant agreed to resign. 2020003661 3 She questioned if Complainant stayed, was he disabled and were there any restrictions that applied. Person A also contacted Person D, Attorney-Advisor 86 RAB, regarding the matter. On May 10, 2016, Person D contacted Person C about the settlement agreement. Person D noted it was recommended to HRO that Complainant be removed from the rolls. Person D advised that he is not clear on the authority for the removal and asked whether there was “a disability determination, medical docs, etc…Otherwise, we would presumably call him back to work and determine whether or not he can perform the essential duties, request medical docs, determine accommodation.” On May 10, 2016, Person B emailed Complainant asking him to go to HRO to submit his resignation in accordance with the settlement agreement. On May 17, 2016, Person C informed Person A that Complainant was to resign as part of the agreement. He stated if they did not hear from Complainant within the next two weeks, to process as a verbal resignation. In a May 19, 2016 email, Person D followed up with Person C noting that HRO was informed Complainant should be removed for disability; however, they do not have “any documentation concerning a disability determination, where his physical or mental condition renders him incapable of continuing employment.” Person D noted that Person C informed that Complainant verbally agreed to resign. However, Person D stated that Complainant has contacted HRO asking to come back to work. Person D asked for a copy of the entire settlement agreement and whether there was an actual disability determination or something similar. In a May 19, 2016 response, Person C replied that Complainant “verbally agreed to resign” when the agreement was approved and that this was “not in the agreement.” Person C stated in the response that he attached an independent medical examination of Complainant which he stated showed Complainant was “physically unable to work.”2 Person C stated that he had contacted Complainant’s attorney so that the attorney could remind Complainant of the agreement to resign. Person C noted that Person D may want to tell Complainant he would have to return the settlement money if he fails to resign as promised. In a June 6, 2016 email, Person A advised Complainant that they were told by AFPC (Air Force Personnel Center) to reach out and “friendly remind” him that as part of the settlement agreement with Workers’ Compensation he agreed to resign and that failure to do so would lead to returning the settlement money. 2 The referenced attachment is not in the record. We note the only independent medical examination in the record is dated May 18, 2015, from an Orthopedist and Trauma Surgeon. 2020003661 4 On June 9, 2016, Complainant asked Person A if she was advising that he needed to resign first and then later, 86 Services Leadership and NAF HRO will find him a part time position to accommodate his disability. Complainant inquired if he had to search for part time positions only since he wants to remain in a part time status. He noted that he had searched but did not see any part time announcements. On June 13, 2016, Person A sent Complainant a response that he had committed to resign during the settlement process. She stated he had until June 18, 2016, to turn in his resignation. She further advised that, “Just to be clear and [so] no one is confused, 86 FSS is not accommodating your medical condition and we are not ‘assisting’ you to get a part time position. HRO’s responsibility in this situation is to guide you through the application process as for everyone else.” Complainant responded on June 13, 2016, informing Person A he thought she was taking steps to find him a position to accommodate his disability as she, 86 FSS, and AFPC are aware of his medical condition. He stated he was “humbly requesting assistance to find me some type of position I can do because in the past years, this agency has ignored my request to accommodate me.” In a June 27, 2016 email Person D informed Person C that Complainant contacted the base Equal Opportunity (EO) Office alleging that HRO is harassing him because they reminded him to resign. Further, Person D noted that “EO is [sic] indicated that since the resignation is not part of the settlement agreement, it is not enforceable.” Person D stated it appeared Complainant was not going to voluntarily resign. Thus, he stated that they would have to take some kind of affirmative action to terminate his employment. Person D asked whether Person C could do anything at his level. If not, Person D, stated that they would have to process as an oral resignation or as an accommodation request, and if the documentation supports, discharge per disability. In a June 27, 2016 email, Person C told Person D that he just spoke with Complainant’s attorney. Person C stated the attorney will call Complainant and inform him that a resignation was part of the settlement and that Person C will file a motion to cancel the settlement if Complainant does not “resign ASAP.” Person C advised to process as an oral resignation if Complainant does not submit his resignation by next Friday. In a July 12, 2016 email, Person E, Director, NAF HRO, Manpower & Personnel Flight (FSEH) RAB contacted Person F, Human Resources Specialist AFSVA Lackland AFB adding if they had her concurrence on issuing Complainant a letter reminding him that he agreed to resign and seeing if he would resign voluntarily. Person E noted they also received a sick slip from Complainant and were informed that he filed an informal complaint with EO. In a July 13, 2016 email, Person F informed Person E that in coordination with AFSVA, Complainant was supposed to resign as part of the settlement. Thus, Person F stated that Person E was cleared to process him as a resignation immediately. 2020003661 5 The record contains a NAFI (Non-Appropriated Fund Instrumentality) Notification of Personnel Action processing Complainant’s resignation effective July 28, 2016. The paperwork notes that Complainant verbally agreed to resign during the Workers’ Compensation settlement negotiation process. On August 8, 2016, Complainant filed an EEO complaint, which was subsequently amended. The Agency accepted and investigated the following claims: 1. Was Complainant subjected to discrimination based on age, disability, and harassment when on May 10, 2016, Person A, NAF Services Claims Examiner, sent him a threatening email advising him to resign from his position. 2. Was Complainant discriminated against on the basis of disability (lower back pain) when on June 13, 2016, Person B, FSS/NAF HRO, denied a reasonable accommodation in finding a part position by emailing Complainant, “the 86 FSS is not accommodating your medical condition and we are not assisting you to get a part time position.” 3. Was Complainant discriminated against on the bases of age, disability, and harassment when on multiple dates in June 2016, Person B sent him numerous threatening emails on behalf of the Air Force Personnel Center (AFPC) to either resign or return the money received from a settlement agreement, which was not associated to his workers’ compensation claim. 4. Was Complainant discriminated against on the bases of age, disability, and harassment when: a. On May 10, 2016, 86 FSS/FSPH (Human Resources Office) alleged in accordance with a Workers’ Compensation settlement agreement he would resign from employment, and on August 1, 2016, FSS/FSPH issued him an AF Form 2545, NAFI Notification of Personnel Action (Termination); b. On August 26, 2016, 86 FSS/FSPH denied him a rations card (alcohol, tobacco, and coffee in an overseas environment). c. Was Complainant discriminated against on the bases of age, disability, and harassment when on August 26, 2016, he was issued an out-processing checklist due to the Agency’s termination proceeding. 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). Ultimately no hearing was held and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). 2020003661 6 The Agency issued a final decision on March 25, 2020. In its decision, the Agency dismissed claims 3 and 4a for failure to state a claim.3 Specifically, the Agency stated that these claims concerning his OWCP settlement agreement constituted a collateral attack on the OWCP process. Regarding the remaining claims, the decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. With regard to Complainant’s denial of accommodation claim, the Agency determined Complainant was disabled. However, the Agency found based on the lack of any medical evidence showing that Complainant was qualified to perform the duties of his position or that there was a vacant position for which he was qualified and to which he could have been reassigned, he failed to establish that he was a qualified individual with a disability. Thus, the Agency determined he was not denied a reasonable accommodation. Regarding the claim of harassment, the Agency noted that Complainant belonged to the protected class of age. However, with regard to his disability claim, the Agency noted as explained in the reasonable accommodation claim, he was not found to be a qualified individual with a disability. Regarding the incidents alleged, the Agency stated there was no evidence that any of the actions were motivated by his age. Thus, the Agency determined his harassment claim failed. Complainant filed an appeal from the Agency’s final decision on May 7, 2020. Complainant filed a brief in support of his appeal on July 6, 2020. The Agency filed a brief in opposition to Complainant’s appeal. Initially, the Agency argues Complainant’s appeal was untimely filed. In addition, the Agency contends its actions were based on the oral settlement agreement the parties entered into whereby Complainant agreed to resign from the Agency in exchange for the Agency’s agreement to settle his workers’ compensation claim. The Agency claims the emails sent to Complainant were not threatening, but reminders of the settlement agreement which he entered into agreeing to resign. The Agency states he was rightfully issued an out-processing checklist based on his oral agreement to resign. The Agency notes that since he was no longer an employee, he was not entitled to receive a rations card. The Agency argues it correctly determined he was not a qualified individual with a disability. Further, the Agency states its dismissal of two claims for failure to state a claim was proper. 3 In its final decision, the Agency reframed the claims and consolidated the harassment claims for analysis. Thus, the harassment claim was renamed as Claim A and included previously listed claims 1, 4b, and 4c. The denial of accommodation claim previously listed as claim 2 was renamed Claim B. Previously identified claim 3 was renamed Claim C and 4a was renamed Claim D. 2020003661 7 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). At the outset, we address the Agency’s argument that Complainant’s appeal was untimely filed. The record reveals the Agency’s final decision was mailed to Complainant on March 25, 2020. Although the certificate of service indicates it was sent to Complainant via certified mail, the Agency provides no proof of when Complainant received the decision. EEOC Regulation 29 C.F.R. §1614.402(a) provides that appeals to the Commission must be filed within 30 calendar days after receipt of the Agency’s decision. Complainant admitted he received the Agency’s final decision on April 9, 2020. Complainant filed his appeal via facsimile with the Commission on May 7, 2020, which was within the applicable limitations period. Thus, we find his appeal was timely filed. We also address the timeliness of Complainant’s July 6, 2020 statement in support of his appeal. As noted above, Complainant filed his appeal on May 7, 2020. A complainant has to file any statement or brief in support of his appeal within 30 days of filing the notice of appeal. 29 C.F.R. § 1614.403(d). On June 3, 2020, Complainant requested an extension of time to file his brief. On June 4, 2020, his request for an extension was granted and he was given until June 17, 2020, to file his brief. The record reveals that Complainant subsequently received a letter from the Commission dated June 12, 2020, advising that he had until July 4, 2020, to submit a statement in support of his appeal. As Complainant did not file his brief until July 6, 2020, we find the brief was untimely filed and we decline to consider it. Further, we review the Agency’s dismissal of claims 3/Claim C and 4a/Claim D for failure to state a claim. Upon review, we find these claims were improperly dismissed as they were connected to Complainant’s other claims surrounding his denial of accommodation and harassment allegations. We note Complainant denies resigning from the Agency. Additionally, there is no evidence in the record of any written agreement in which Complainant agreed to resign. Therefore, we find Complainant did not voluntarily resign from the Agency. On remand, the Agency should process Complainant’s claim that he was subjected to discrimination when the Agency discharged him from employment. 2020003661 8 Next, we address Complainant’s claim that he was denied reasonable accommodation. An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g); Marcellus M. v. U.S. Postal Serv., EEOC Appeal No. 0120182213 (Aug. 16, 2019). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; and the operation of a major bodily function. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R.§ 1630.2(j)(1)(ii). Such limitations must be shown to be of permanent or long-term duration. We concur with the Agency’s finding that Complainant was an individual with a disability. We must now ascertain whether Complainant was a qualified individual with a disability. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120141294 (June 16, 2017) (citing 29 C.F.R. § 1630.2(m)). When asked whether he could perform the essential functions of his housekeeper position, Complainant stated that he had performed the essential functions of his position without an accommodation until his injury but following his injury he had “had difficulty.” The Agency’s final decision examines the medical information from the May 18, 2015 report from an Orthopedist and Trauma Surgeon to determine Complainant was not qualified. However, we note when Complainant requested to return to work in May/June 2016, he was not asked for any current medical documentation to support his request. The emails in the file indicate that the Agency was aware it was lacking information on Complainant’s current medical condition at the time of his 2016 request for reasonable accommodation. Specifically, in response to Person A’s inquiry into Complainant’s current medical status, Person B responded his condition was “most likely” the same or “probably worse,” noting he did “not have any updated medical information on this case.” Further, when Person D noted they did not have any documentation concerning whether his physical or mental condition renders him incapable of continuing employment, Person B provided Person D with a copy of the 2015 surgeon’s report. Thus, we find the record unclear whether there were modifications to the position that could have been enacted to enable Complainant to perform the essential functions of the housekeeper position or other duties that Complainant could have performed. The next question to address is whether Complainant was a qualified individual with a disability with respect to other positions, and as such, was eligible for reassignment to a vacant, funded position for which he could perform the essential functions. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of his current position or all other reasonable accommodations would impose an undue hardship. King W. v. U.S. Postal Serv., EEOC Appeal No. 2019001070 (Mar. 20, 2019); Zachary K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). 2020003661 9 Complainant said that he could be accommodated for his claimed impairment by being reassigned to a position that does not require bending, lifting, or standing for long periods of time. Rather than engage in the interactive process when it was clear Complainant was asking for reassignment, the Agency proceeded to pressure Complainant to resign pursuant to a purported verbal agreement the Agency claimed Complainant made during the processing of his Workers’ Compensation settlement agreement.4 The record is clear that the Agency failed to engage in the interactive process following Complainant’s request for an accommodation. Commission precedent establishes, however, that an agency cannot be held liable solely for a failure to engage in the interactive process. Mahalia P. v. U.S. Postal Serv., EEOC Appeal No. 0120181487 (Sept. 25, 2019). Liability attaches when the failure to engage in the interactive process results in the Agency’s failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den’d, EEOC Request No. 05A30114 (Jan. 9, 2013). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency’s failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, supra. In the present case, we find the record is inadequate to determine whether the Agency fulfilled its obligations under the Rehabilitation Act. The investigation should have disclosed more information (if available) about Complainant’s condition, including any restrictions he may have had at the relevant time; what duties or jobs he could have performed within those restrictions; and any potential modifications to his housekeeper position that would have enabled him to perform the essential duties of the position. The investigation also should have identified any available positions into which Complainant could have been reassigned, and the investigator should have given Complainant an opportunity to address whether he could have performed the essential functions of the vacant positions with or without reasonable accommodations. As it exists, the record is insufficient for us to determine whether the Agency satisfied its obligation to provide Complainant with a reasonable accommodation. See Mahalia P., EEOC Appeal No. 0120181487. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. See, e.g., Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see also Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period). 4 As noted earlier, Complainant denies resigning from the Agency and we note there is no evidence in the record of any written agreement in which Complainant agreed to resign. 2020003661 10 However, we note that during the interactive process, the Agency is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time and is therefore obligated to expeditiously inform Complainant about vacant positions for which he might be eligible in a reassignment. Enforcement Guidance, Question #28; Bill A. v. Dep’t of Army, EEOC Appeal No. 0120131989 (Oct. 16, 2016) (investigator must obtain relevant information about the availability of vacant, funded position). During the investigative stage of the federal administrative process, the agency has an obligation to develop an adequate investigative record. 29 C.F.R. § 1614.108. “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” Id. § 1614.108(b). The investigator must conduct a thorough investigation, “identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” EEO MD-110, Chap. 6 § V.D. Therefore, the investigator must exhaust those sources of information likely to support the positions of the complainant and the agency. Id. The investigative record in this case is inadequate. Accordingly, we remand this matter for a supplemental investigation as to whether Complainant could be accommodated in his housekeeper position through job modification or restructuring; whether any other accommodations were available; whether vacant, funded positions were available for reassignment that Complainant could perform; and any other pertinent information. We note that the Agency's obligation under the Rehabilitation Act to offer a reassignment is not limited to vacancies within a particular department, facility, or geographical area. Bill A. v. Dep't of the Army, supra. The “extent of the agency's search for a vacant position is an issue of undue hardship.” Id. Based on the foregoing, we find that the record was not adequately developed. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether a violation of the discrimination statute occurred. Therefore, the Commission will remand this matter for a supplemental investigation to examine whether the Agency denied Complainant a reasonable accommodation for his disability. Moreover, as discussed above, since we find the Agency improperly dismissed claims 3/Claim C and 4a/Claim D, the Agency should also address those claims in its final decision. As both of the dismissed claims were already investigated, we do not order a supplemental investigation on those claims. Given our decision remanding Complainant’s reasonable accommodation claim and the interrelatedness of the remaining claims, we decline to address the other claims at this time. CONCLUSION Accordingly, we VACATE the Agency’s final decision and REMAND Complainant’s complaint for further processing in accordance with the Order herein. 2020003661 11 ORDER TO SUPPLEMENT RECORD (B0617) Within 120 days of receipt of this order, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this decision. The supplemental investigation shall include, but is not limited to, whether and to what extent the Agency provided Complainant with a reasonable accommodation beginning on or around June 2016. This investigation shall encompass the following elements: whether Complainant's medical condition could be accommodated; whether any accommodations were available within his medical restrictions on or around June 2016; whether positions were available for reassignment as of June 2016; and any other pertinent information that the investigation reveals. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record. Thereafter, the Agency shall issue a new final decision on the merits of Complainant’s complaint. A copy of the additional evidence obtained pursuant to this Order and a copy of the new final decision shall be sent to the Compliance Officer as referenced herein. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §1614.403(g). Further, the report must include evidence that the directed action has been taken. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2020003661 12 The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020003661 13 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2020003661 14 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 20, 2021 Date