[Redacted], Chad T., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2020002877 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chad T.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2020002877 Hearing No. 443-2019-00089X Agency No. 17-05-008 DECISION On February 28, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 7, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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 AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented concern whether the Agency engaged in discrimination against Complainant on the bases of race, sex, disability, age, and reprisal. 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. 2020002877 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Opportunity Specialist, GS-0360-12, at the Agency’s Office of Federal Contract Compliance Programs (OFCCP) facility in Minneapolis, Minnesota. On October 30, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and discriminated against him on the bases of race (African-American), sex (male), disability (attention deficit hyperactivity disorder), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973. He alleged a total of 32 claims in support of his complaint, including the follow incidents of disparate treatment: 3. On August 8, 2017, he was micromanaged and harassed about some of his cases, even though his fist line supervisor (S1, African American male over age 40) failed to give him feedback on them as required by his reasonable accommodation; 6. On August 21, 2017, management: a) delayed his receipt of his pay by failing to certify his timesheet and b) dismissed his findings in several cases; 10. On September 22, 2017, his military status in WebTA was changed so that he could not use military leave; 11. In October 2017, he received a rating of “Effective” on his Fiscal Year (FY) 2017 Performance Appraisal, and he received a bonus of only $400, while a comparable peer received a bonus of $1,400; 13. On October 26, 2017, S1 required him to find someone to cover his November 24, 2017, shift as Compliance Officer of the Day, even though White females had not previously been required to find people to cover their shifts and some of their shifts had not been covered; 18. On November 13, 2017, S1 approved and then reverted his leave requests multiple times; 25. On January 19, 2018, S1 violated the terms of Complainant’s reasonable accommodation when he failed to give Complainant feedback on his work; 28. On February 27, 2018, he learned that he was not selected for the position of GS-13, Equal Opportunity Specialist advertised under Vacancy Announcement No. MS-18- HRC-EEO-012; and 2020002877 3 32. In or around November 2016, he received a rating of “Effective” on his FY2016 Performance Appraisal. Complainant’s remaining 24 claims collectively alleged that he had been subjected to a hostile work environment, including, but not limited to when: his supervisor over scrutinized his work; made him look bad; repeatedly engaged in unwanted conversation with him in an effort to delay his work; harassed him for filing an EEO complaint; and made false and harassing accusations about his work performance. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Following the initial conference, the parties began the discovery process. On November 19, 2019, the Agency filed a motion to dismiss, citing Complainant’s failure to follow orders and prosecute his complaint. When Complainant failed to respond to the Agency’s motion, the AJ assigned to the matter dismissed the complaint and remanded the complaint to the Agency for the issuance of a final decision. On February 7, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In issuing the decision, the Agency initially dismissed claim 32, concerning Complainant’s FY2016 performance appraisal, due to Complainant’s failure to raise the claim within 45 days of the alleged incident. The Agency, however, still considered claim 32 as part of Complainant’s overall hostile work environment claim. With regard to the merits of the complaint, the Agency first analyzed Complainant’s denial of reasonable accommodation claim. While the Agency noted that Complainant had asserted that the feedback he received was “not really” feedback because management just asked him questions about his cases, the Agency determined that such contention was insufficient to constitute a failure to accommodate, as Complainant was not entitled to a particular form of feedback. The Agency further found that management had legitimate, nondiscriminatory actions for all the alleged actions, for which Complainant could not persuasively establish pretext. Lastly, the Agency found that none of the alleged incidents rose to the level of a hostile work environment, as they constituted ordinary tribulations in the workplace. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not file a brief in support of his appeal; however, on December 20, 2020, he filed a reply to the Agency’s opposition brief dated June 5, 2020, wherein the Agency requested affirmance of its final decision. As the Commission’s regulations do not permit an appealing party to file a response to an opposition brief as a matter of right, we decline to consider Complainant’s reply brief. See Wallace v. Dep’t of Justice, EEOC Appeal No. 01A30937 (Mar. 2, 2004). 2020002877 4 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Preliminary Matters EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Preliminary, we affirm the Agency’s dismissal of claim 32 for untimeliness, as our review of the record shows that the incident occurred in November 2016, but Complainant waited until August 9, 2017 to initiate EEO contact. As Complainant did not provide an explanation for his failure to initiate EEO contact within 45 days of the alleged incident, we concur with the Agency’s decision to dismiss the claim. We turn now to the merits of the complaint. Reasonable Accommodation We begin with claims 3 and 25, wherein Complainant alleged that management violated his reasonable accommodation, which required management to provide him with feedback about his work. 2020002877 5 Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). To establish that the Agency denied Complainant a reasonable accommodation, Complainant must show that: (1) he was an individual with a disability; (2) he was a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). Assuming arguendo that Complainant was a qualified individual with a disability during the relevant period, we find no evidence that the Agency failed to provide him with feedback. To the contrary, our review of the record shows that S1 did in fact give Complainant feedback, both orally and in writing, in the form of thought-provoking questions. However, Complainant vehemently disagreed with the manner and content of S1’s feedback. While we are mindful of Complainant’s disagreement, we nevertheless find that contention to be insufficient to establish a violation of his accommodation. Disparate Treatment We proceed now to claims 6, 10, 11, 13, 18, and 28, concerning Complainant’s allegations of disparate treatment based on his protected classes. For Complainant to prevail in a claim of disparate treatment, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged basis, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For claim 6(a), concerning the delay in paying Complainant his salary, S1 maintained that the delay was due to Complainant’s failure to timely submit his timesheet. With regard to claim 6(b), S1 asserted that he dismissed Complainant’s findings of discrimination because he disagreed with Complainant’s legal conclusions. 2020002877 6 S1 emphasized that a second supervisor reviewed Complainant’s cases and agreed with him that no discrimination had occurred in those cases. Appeal Binder at 392-397. Concerning claim 10, S1 unequivocally denied making any changes to Complainant’s military status in WebTA and maintained that he approved Complainant’s military leave slips. Complainant’s coworker added that when Complainant complained to him about being about to request military leave in WebTA, he contacted the Payroll Coordinator who advised him that even supervisors and managers, such as S1, do not have the ability to change an employee’s military status in WebTA. Appeal Binder at 402-404. With regard to claim 11, regarding Complainant’s appraisal and bonus, S1 explained that he rated Complainant as “Effective” rather than “Highly Effective” because Complainant met but did not exceed expectations in three of the four critical elements. In this regard, S1 emphasized that Complainant took too long to complete cases and had some quality issues with his work. S1 further added that he was not involved with decision to award Complainant $400 in bonus. Appeal Binder at 404-07. For claim 13, S1 denied discriminatorily asking Complainant to cover his November 24, 2017 absence. S1 emphasized that pursuant to the collective bargaining agreement, all his employees must cover their absences. Two female Compliance Officers provided statements corroborating S1’s characterization of office practice. Appeal Binder at 408-411. As for claim 18, regarding Complainant’s allegation that S1 approved and then reverted his leave requests multiple times, S1 explained that on the day in question, Complainant had submitted overlapping leave requests, which required correction. S1 maintained that when he asked Complainant to correct the error, Complainant stated that nothing was wrong. S1 explained that Complainant eventually corrected the error, and S1 was able to approve the requests in the system. S1 emphasized that he was unsure whether Complainant’s leave requests reverted multiple times, as the system did not generate multiple alerts. Appeal Binder at 418. With regard to claim 28, concerning the GS-13, EEO Specialist position, S1 maintained that Complainant was not selected for the position because he was not as qualified as the two individuals selected for the position. In this regard, S1 explained that the vacancy was located in the Agency’s EEO Office, which was a different office within the Agency. S1 asserted that the selectees had direct experience administering EEO program services, as Selectee-1 was a former EEOC Investigator and Selectee-2 had previously worked as an EEO Specialist at another agency. Appeal Binder at 438-440. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). 2020002877 7 Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In the non-selection context, pretext may be found where a complainant’s qualifications were plainly superior to those of the selectee. Hung P. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). In arguing pretext for claim 6(a), Complainant admitted that he failed to timely submit his timesheet; however, Complainant maintained that he failed to do so because S1 neglected to remind him. Furthermore, Complainant asserted that management treated younger female employees more favorably by closing their timesheets for them. Id. As for claim 6(b), concerning his allegation that management discriminatorily closed his cases, Complainant asserted that he presented evidence to management showing that a finding of discrimination was warranted; however, management disagreed with him no matter what evidence he presented. Appeal Binder at 392. For claim 10, Complainant disputed S1’s assertion that he did not have the authority to change to Complainant’s military status. In this regard, Complainant maintained that only individuals who had any issues with WebTA were individuals with prior protected EEO activity. Appeal Binder at 402-03. Concerning claim 11, Complainant maintained that he should have received a “Highly Effective” rating because he was able to write dozens of legal responses to one of the most respected attorneys in the country, which contradicted the attorney’s statements. Appeal Binder at 404. Furthermore, Complainant emphasized that he was the first employee in over a decade to get a cash settlement from a federal contractor. Id. Complainant maintained that despite these accomplishments, S1 still rated him and other Black male employees lower than Whites in his office. Id. at 405. Complainant also contended that the Agency engaged in discrimination when management awarded a White employee a $1,400 bonus, but only awarded him $400; however, Complainant conceded that his evaluation rating was lower than that individual. With regard to claim 13, Complainant explained that he was scheduled to work as the Compliance Officer of the Day on November 24, 2017; however, he had requested leave to visit relatives for Thanksgiving. Complainant maintained that when S1 learned about his leave request, he required Complainant to find someone to cover his absence on November 24, 2017. Complainant asserted that S1 had never in the past required employees to cover their shifts and only imposed that requirement after a favored female employee transferred out of the office. Appeal Binder at 408. Complainant further maintained that while S1 would normally cover for employees if they had to take leave, S1 failed to so on November 24, 2017, because he was also going on leave for Thanksgiving. Id. Complainant emphasized that since the alleged incident on November 24, 2017, S1 has allowed several female employees to not cover their shifts. Id. 2020002877 8 Complainant’s colleague (C1) averred that while he did not believe that S1 subjected Complainant on the basis of race, S1 was not as strict with female employee. Id. at 410. For claim 18, Complainant contended that the alleged changing of his leave requests was discriminatory because it occurred on the same day when he received notice of his right to file a formal complaint and was also accused of not encrypting a disc that contained personally identifiable information. Appeal Binder at 417. Finally, for claim 28, Complainant explained that he applied for the GS-13 EEO Specialist position and participated in the interview process; however, he was not selected for the position. Complainant maintained that his non-selection was discriminatory because he was highly qualified for the position. Complainant contended that race was a factor in his non-selection because he had filed a complaint about race discrimination and had several conflicts with the selecting official and her staff. Complainant also maintained that his sex and age were factors because the Agency selected two females who were both younger than him. Appeal Binder at 984-88. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are unpersuaded by Complainant’s evidence of pretext. For claim 6(a), we find no evidence demonstrating that S1 delayed Complainant’s pay or discriminatorily failed to remind Complainant to complete his timesheet. However, even assuming arguendo that S1 failed to remind him, we still find no evidence of discrimination, as Complainant has not shown how such failure was related to his protected characteristics. Furthermore, we discern no persuasive evidence showing that S1 treated Complainant less favorably than White female employees with regard to timesheets. As for claim 6(b), while we are certainly mindful that Complainant vehemently disagreed with S1’s repeated rejection of his findings of discrimination, we are unable to conclude that S1’s actions were based on anything other than a difference in legal opinion. Regarding claim 10, we find that the preponderant evidence persuasively shows that S1 had no ability to change Complainant’s military status in WebTA. While we are mindful of Complainant’s disagreement with this explanation, we find that the preponderant evidence fails to corroborate Complainant’s allegation. Likewise, in claim 11, we find that the preponderant evidence fails to persuasively show that Complainant’s FY2017 performance rating was based on anything other than Complainant’s actual performance. 2020002877 9 In this regard, our review of the record shows that Complainant received the highest rating (i.e., “Exceed”) in the element of “Quality Enforcement” because he was able to obtain a financial settlement in a case by liaising with the company’s attorney in an effective manner. Appeal File at 51. However, S1 ultimately gave Complainant an overall “Effective” rating because Complainant only met, and did not exceed, the standards for the other three critical elements. Specifically, S1 averred that Complainant was taking too long to complete cases and had some quality issues with his submitted work. Having reviewed the record, we find no causal link between Complainant’s protected classes and S1’s decision to rate him as “Effective.” As for his bonus, while we acknowledge that Complainant received a lower bonus than a White employee, we are disinclined to find discrimination, as Complainant has conceded that the White employee received a higher rating than him. Given that Complainant has not offered a suitable comparator for our consideration, we conclude that Complainant cannot prevail on this claim. For claim 13, we are disinclined to find discrimination regarding Complainant’s allegation that his supervisor discriminatorily required him to cover his shift but did not impose the same requirement on female employees. While we are mindful that C1 opined that S1 was less strict with female employees, we note that the record contains affidavits from two female employees who averred that S1 required them to cover their shifts if they wanted to go on leave. As we do not have the benefit of credibility determinations, we find that the record is in equipoise. Because Complainant cannot show that S1’s actions were more likely than not due to discrimination, we conclude that Complainant cannot prevail here. Having reviewed the record on claim 18, we find that the evidence of record fails to show that S1 reverted Complainant’s leave requests multiple times with the purpose of discriminating against Complainant. Rather, our review of the record generally supports S1’s explanation, as discussed above. Last, we considered Complainant’s contention that the Agency’s failure to select him for the GS- 13, EEO Specialist position constituted discrimination. While we find that Complainant was qualified for the position, given his collateral EEO duties, we are disinclined to find that he was plainly superior to the selectee. As discussed above, the record shows that both selectees were experienced EEO professionals who interviewed well and were highly recommended by their supervisors. Because Complainant has not persuasively shown that he was plainly superior to the selectees, we must find no discrimination on this claim. Hostile Work Environment Claim We turn now to Complainant’s hostile work environment claim. As an initial matter, we find that a finding of harassment is precluded on claims 3, 6, 10, 11, 13, 18, 25, and 28, due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). 2020002877 10 We note that Complainant’s remaining 24 claims collectively alleged that he had been subjected to a hostile work environment, including, but not limited to when: his supervisor over scrutinized his work; made him look bad; repeatedly engaged in unwanted conversation with him in an effort to delay his work; harassed him for filing an EEO complaint; and made false accusations about his work performance. To establish a claim of harassment, 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been “sufficiently severe and pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Serv., Inc., 23 U.S. 75 (1998). Having reviewed the record, we find that Complainant he has not shown that the alleged conduct occurred because of his protected classes. Instead, we find that the alleged instances of harassment were related to Complainant’s job duties or his conduct. To the extent that Complainant argues that S1 acted unprofessionally towards him, the Commission notes that anti- discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, Complainant has not shown that his supervisor’s conduct had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. We also find that the conduct at issue was not sufficient to dissuade a reasonable person from engaging in protected EEO activity. In reaching this conclusion, we carefully considered Complainant’s allegation that S1 harassed him in reprisal for his protected EEO activity; however, we note that S1 denied the allegation. See Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Given the facts in this case, we conclude that Complainant cannot prevail on his hostile work environment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2020002877 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 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). 2020002877 12 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 4, 2021 Date