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

Equal Employment Opportunity Commission

Aug 26, 2021

Appeal No. 2020001187 (E.E.O.C. Aug. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dayle H.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001187 Hearing Nos. 540-2017-00095X & 540-2018-00004X Agency Nos. DAL-16-0512-SSA & DAL-17-0203-SSA DECISION On November 7, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per to 29 C.F.R. § 1614.403(a), from a September 24, 2019 final Agency order on her two equal employment opportunity (EEO) complaints 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. BACKGROUND At the time of events giving rise to these two complaints, Complainant was employed by the Agency as a Social Insurance Specialist - Bilingual (Claims Technical Expert - Bilingual), GS- 105-12, at the Teleservice Center, Albuquerque Workload Support Unit in New Mexico. On July 29, 2016, Complainant filed EEO complaint DAL-16-0512-SSA (Complaint 1) alleging that the Agency: 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. 2020001187 2 1. failed beginning on February 12, 2016, to reasonably accommodate her disability (ankylosing spondylitis and arthritis throughout her body causing chronic pain and visible walking problems); and 2. subjected her to harassment based on her age (61 & 62), sex (female), national origin (Hispanic), disability and reprisal for EEO activity (requesting reasonable accommodation on February 12, 2016). She also alleged that the Agency discriminated against her on the bases of her age, sex, national origin, disability and reprisal when: 3. on April 16, 2016, management did not extend her collective bargaining agreement (CBA) Article 39 “Work by Home By Exception”; and 4. on July 26, 2016, the Operations Supervisor for Complainant’s unit, also her first-line supervisor (“S1”) (U.S. Hispanic or Latino, male, age 35 & 36), gave her negative written feedback in her mid-year fiscal year (FY) 2016 performance “discussion.” On March 18, 2017, Complainant filed EEO complaint DAL-17-0203-SSA (Complaint 2) alleging that she was discriminated against based on disability and reprisal for EEO activity (for filing Complaint 1) when: 5. on October 31, 2016, S1 gave her ratings on her annual FY ’16 appraisal of “Successful Contribution” on three performance elements and overall, lower than her prior annual appraisal. The Agency investigated the two complaints and issued separate reports of investigation (ROI). In summary, the investigations produced the following evidence concerning Complainant’s claims. Issues 1 and 3 - Failure to reasonably accommodate and not extending Complainant’s Article 39 work at home by exception. On February 11, 2016, Complainant made a written request to the Section Manager for her unit, also her second-line supervisor (“S2”) (Caucasian, female, age 44 & 45), for an Article 39 work at home by exception. This is for employees who for medical reasons have difficulty commuting to work but can do their duties at home. She related she was scheduled for spinal fusion surgery on March 2, 2016, to treat her spondylolisthesis and lumber spinal stenosis, and sought to resume working on March 21, 2016, but from home. Article 39 requests must be supported by medical documentation, which Complainant included - a February 9, 2016 letter by her neurological surgeon. The letter also stated that because of the magnitude of the surgery and need for postoperative pain management, Complainant could not drive for about three months after surgery. 2020001187 3 On February 12, 2016, Complainant requested reasonable accommodation via online “Reasonable Accommodation Wizard” of the Agency Personnel Center for Disability Services. This request mirrored the Article 39 request. On February 12, 2016, it was forwarded to S1 to recommend approval or denial. Prior to Complainant making the above two requests, S2 advised her to make both of them. The Director of the Teleservice Center, also Complainant’s third-line supervisor (“S3”) (American, female, age 71), stated the Teleservice Center does not approve work at home as a reasonable accommodation, the only avenue is Article 39. Id., Ex. 10 (S3 affidavit) at 4 - 5, Bates Nos. 132 - 133. This was communicated to S2 and S1. S2 advised Complainant that she needed to withdraw her reasonable accommodation request and they would then proceed via Article 39. Complainant then withdrew her accommodation request on February 29, 2016. Id., Ex. 9 (S2 affidavit) at 8, Bates No. 126; Ex. 18 (email exchange between S1 and Complainant) at 9, Bates No. 185. After Complainant’s surgery on March 2, 2016, Agency management got her surgeon’s March 18, 2016 letter releasing her to work from home part-time from March 21 - 23, 2016, then increase to 6-8 hours daily as tolerated, with re-evaluation on April 8, 2016. Management forwarded this to the Agency’s Medical Officer, who the record suggests recommended work at home was justified. S1 approved the Article 39 request. S2 stated it was approved on March 18, 2016, until Complainant’s re-evaluation on April 8, 2016. On April 8, 2016, Complainant’s surgeon wrote a letter recommending she continue to work at home 6 - 8½ hours daily as tolerated until July 5, 2016. It is unclear whether management got this letter. Complainant stated that S1, by telephone on April 11, 2016, advised her that based on her medical documentation, the Medical Officer said she could come to work. She countered she could not drive to work, probed him on what he needed to allow her to continue working from home, and he got quiet and said she could use leave. Later on the same day, she called S3 to say she was medically unable to work in the office. In response to S3’s question on how she could work at home, Complainant explained she could lie down throughout the day for short periods and alternately sit and stand and had a soft recliner. S3 advised she submit a doctor’s letter stating this. On April 12, 2016, S2 received a letter by Complainant’s surgeon indicating that she could work at home 6-8 hours as tolerated, that homework allows her to frequently change positions as needed, including laying down and standing short periods and to also sit in a soft recliner, all of which is for comfort and to avoid muscle strain and facilitate healing. He wrote Complainant’s recovery and work restrictions would be reevaluated on July 8, 2016. The EEO counselor wrote that S2 said that the surgeon’s April 12, 2016 letter was forwarded to the Medical Officer who wrote (on April 13, 2016) that Complainant’s need to sit or stand could be accommodated the office. S2 stated Complainant had a sit/stand workstation. 2020001187 4 S3 stated management got a letter by Complainant’s physician that stated she was capable of working 8½ hours daily and did not specify she needed to work from home, so she was directed to return to work. S3 stated Complainant was asked to provide additional documentation to support working at home and she chose to take leave instead. In stating this, is not clear whether S3 had the April 8, 2016 or April 12, 2016 letter mind. S1 notified Complainant on April 13, 2016, that her Article 39 exception was discontinued effective April 14, 2016. Complainant stated that when S1 said they needed her Agency laptop back, she told them to pick it up because she was still not allowed to drive. S2 did so on April 14, 2016. The EEO counselor wrote that S3 said the inability to drive a vehicle is not a reason to allow someone to work at home, albeit she later stated in her investigative affidavit it can play a part, depending on the circumstances. ROI, Ex. 2 (counselor’s report) at 8, Bates No. 43. Complainant asked for a copy of the April 13, 2016 Medical Officer’s letter referred to by S1, S2, and S3. The EEO counselor wrote S3 said management was not authorized to release any record by the Medical Officer. Complainant was never given the letter. The EEO investigator made a document request which covered it, but the letter was not provided. Issues 4 and 5 - FY 2016 mid-year performance discussion and annual appraisal In S1’s performance discussion on Complainant’s performance elements of Interpersonal Skills and Participation, S1 wrote the areas he wanted her to improve were communication with peers and supporting them, and “encourage[d]” her to build positive and productive working relationships with her team and assist her peers when requested. In response to the EEO investigator’s question on whether the remarks meant she did not do these things in the past, S1 stated he was not inferring this, was looking to the future, and the discussion was not negative. ID., Ex. 8 (S1 affidavit) at 3, Bates No. 105. Complainant stated S1 told her regarding the Participation performance element that she did not work her fair share of late shift rotations for Technical Experts. S3 separately related there is about a one-hour difference between the early and late technical expert shifts, which ends at 5 PM. Complainant’s second complaint regarded her FY 2016 annual appraisal. In response to the EEO investigator’s request to S1 to explain the ratings he gave, for the performance elements of Interpersonal Skills and Participation S1 stated that when a subordinate is “encouraged” to work toward certain standards, that means they are not sustaining meeting them, he challenged Complainant, and she reached the rating of Successful Contribution by the end of the FY. ROI 2, Ex. 6 at 2 - 3, Bates Nos. 73 - 74. Complainant stated she questioned S1 about her annual appraisal ratings, he said if she had not been out after her back surgery, she would have gotten a higher rating, and she did not cover her share of late shifts for Technical Experts. Id., Ex. 5 at 3, ¶ 11, Bates No. 67. Regarding late shifts, Complainant stated she pointed out her physical therapy schedule, and S1 stated she needed to do her part. According to Complainant, S1 repeatedly asked her to provide notes from physical therapy and refused to accept documentation that was not on physical therapy letterhead. 2020001187 5 Issue 2 - Harassment Complainant stated this claim regarded: (a) S2 on April 14, 2016, retrieving and placing in S2’s office Complainant’s laptop where it did not receive updates until a few days before Complainant returned to the office on June 27, 2016; (b) on June 9, 2016, S1 asking her to submit medical documentation supporting staying on leave beginning June 13, 2016 - which he retracted about 40 minutes later; and (c) S1 assigning her the late shift frequently in July and August 2016. According to Complainant, S1 told her she needed to do her fair share since the rotation schedule started in May 2016, while she was out. On appeal, Complainant wrote she pulled up the rotation schedule and could see she was assigned more rotations than other Technical Experts. S2 stated she assigned Technical Experts to their rotations, and Complainant was placed on rotation like everyone else. Following the investigation into her claims, Complainant requested a hearing on each complaint before an EEOC Administrative Judge (AJ), who consolidated them. The Agency then filed a motion for summary judgment. In its motion for summary judgment, the Agency argued that Complainant failed to establish a prima facie case of discrimination. It asserted that she did not show she was disparately treated as all Complainant’s peers were also assigned to the late shift rotation. It also argued the FY 2016 mid-year discussion and appraisal were not adverse employment actions because the discussion was not negative, and her annual appraisal ratings were Successful Contribution. The Agency also asserted that Complainant’s laptop being picked up by S2 and kept in S2’s office until a few days before Complainant returned was not harassment. Complainant did not show the relevant management officials were aware of her EEO activity. Even assuming Complainant made out prima facie cases of discrimination, the Agency asserted management witnesses articulated legitimate, non-discriminatory reasons for their actions. Complainant withdrew her request for reasonable accommodation under the reasonable accommodation procedure and instead was allowed to work at home under Article 39. Her work at home was not continued because the Agency’s Medical Officer, based on the medical documentation Complainant submitted determined she no longer needed to work at home since she could work in the office with a sit/stand option. The Agency argued the FY 2016 mid-year performance discussion and annual appraisal ratings were done for the reasons S1 gave. Complainant was assigned late shift rotations after she returned to work in accordance with the regular rotation schedule all other Technical Experts were on. Complainant, who was represented by a non-attorney, did not respond. The AJ granted the Agency’s motion for summary judgment for the reasons advanced by the Agency. The final Agency order adopted the AJ’s decision finding no discrimination on all claims. The instant appeal followed. On appeal, Complainant argues that the AJ erred in granting summary judgment because there are genuine issues of material fact and asks for her case be remanded for a hearing. In reply to the appeal, the Agency argues its final order should be affirmed. 2020001187 6 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross- examination and summary judgment on such evidence is improper." Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24, 1995). Issues 1, 3, 4 and 5 As an initial matter, we disagree with the Agency’s argument before the AJ that management was unaware of Complainant’s prior EEO activity. A request for reasonable accommodation is protected EEO activity, and S1, S2, and S3 were all aware of this on the day or within a week or two of when she made her request for work at home as a reasonable accommodation via the online wizard on February 12, 2016. The EEO counselor interviewed S1 about Complainant’s Complaint 1 claims on June 16, 2016, before he signed Complainant’s FY 2016 annual performance appraisal on October 31, 2016 (the subject of Complaint 2), and on the same day he completed his Complaint 1 affidavit. The Agency contends it discontinued Complainant’s Article 39 work from home because its Medical Officer, based on her medical documentation determined she no longer needed to work at home since she could sit/stand in the office. The record is not adequately developed for summary disposition on this issue. Despite requests for the Agency to do so, it never provided the Medical Officer’s letter it allegedly relied on. 2020001187 7 At the time the Agency stopped approving Complainant’s work from home effective April 14, 2016, her medical documentation was that she could work at home 6-8 hours as tolerated, that work from home allowed her to frequently change positions as needed, including laying down and standing for short periods, and to sit in a soft recliner, all for pain avoidance and to avoid muscle strain and facilitate healing. The letter also indicated her recovery and work restrictions would be reevaluated at her next visit on July 8, 2016. There is a genuine issue of material fact on whether the sit/stand option alone would meet Complainant’s restrictions. Complainant asserts the office could not meet her need to lay down and sit in a soft recliner, and on appeal submits notes of her rhetorically asking S1 on April 13, 2016, if a place to lay down and sit in a soft recliner were available, and he said no. Also, Complainant stated she told S1 she still could not drive for medical reasons, which is supported by a February 9, 2016 letter by her surgeon, and the record does not show she had other ways to get to work within her medical limitations. S3 stated that work from home was not an option under the reasonable accommodation procedure. This was relayed to S2 and S1. This runs counter to the requirements of the Rehabilitation Act. See, e.g., Jona R. v. State, EEOC Appeal No. 0120182063 (Jan 23, 2020) (the complainant, who had diabetes and other medical conditions causing episodic symptoms of dizziness, fainting, nausea and vomiting requested as a reasonable accommodation flexible telework that would allow her to determine each day if she was able to drive into the office to work. The Commission found that the agency violated the Rehabilitation Act when it did not provide telework on a situational basis to reasonably accommodate her disability); Blocher v. Veterans Affairs, EEOC Appeal No, 0120111937 (Apr. 17, 2013) (the complainant, who was born with congenital hip dysplasia that severely impaired her ability to walk, had hip replacement surgery. The Commission found that the agency violated the Rehabilitation Act by disapproving the complainant’s request to telework while she recovered from hip surgery). Complainant only withdrew her request for reasonable accommodation after being advised by management that the only way it would approve her request to work from home was under Article 39, and she needed to withdraw her reasonable accommodation request and they would then proceed via Article 39. Because of this, we decline to recognize the withdrawal. To the extent the inability to get to work need not be considered in determining whether to approve work at home under Article 39, this is not so under the Rehabilitation Act. See e.g., Jona R. Further, when Complainant started to work from home, S1 emailed her that from that point forward she would be assigned an iClaims workload. ID., Ex. 17, at 5, Bates No. 172. In the notes she submitted on appeal, Complainant wrote S2 told her she could only work on iClaims from home. Complainant stated the President of AFGE Local 4041 told her that S3 said to him that working iClaims was beneath Complainant. Id., Ex. 7 (Complainant’s affidavit) at 18, Bates No. 100. In her appeal notes, Complainant wrote on that March 22, 2016, she told S2 that in Auburn Technical Experts were allowed to do their technical expert workload while teleworking, and S2 countered it was a pilot program not applicable to Complainant’s region. 2020001187 8 While perhaps only assigning iClaims work to those working at home is permissible under Article 39, this could constitute a violation of the Rehabilitation Act to the extent it caused the Agency to cut off work from home as a reasonable accommodation, depending on the specific circumstances. The record is not adequately developed for summary disposition on these matters. We also find that there are genuine issues of material fact regarding the FY 2016 mid-year discussion and annual appraisal. In S1’s first EEO investigative affidavit provided for Complaint 1, he stated his mid-year written discussion with Complainant encouraging her to do certain things under her Interpersonal Skills and Participation performance elements did not infer she did not do so in the past, he was looking to the future, and the discussion was not negative. But in his later affidavit provided for Complaint 2, S1 explained that when a subordinate is encouraged to work toward certain standards, that means they are not sustaining meeting them, so he challenged her and she ended up reaching the rating of Successful Contribution on these performance elements by the end of the FY. This contradiction goes to S1’s credibility on this issue, creating a genuine issue of material fact. We disagree with the Agency that receiving a rating of Successful Contribution fails to state a claim because it is not an adverse action. Illiana S. v. EEOC, EEOC Appeal No. 0120123242 (Jul. 11, 2016) (the complainant’s claim that she received a Fully Successful annual performance evaluation rating, which was lower than her prior annual ratings of Outstanding, constituted an adverse action and stated a claim of disability and reprisal discrimination, and further stated a claim of reprisal because it would likely deter a reasonable employee from engaging in protected EEO activity in the future). Complainant stated when she questioned S1 about her FY 2016 annual appraisal ratings, he said if she had not been out after her back surgery, she would have gotten a higher rating. This creates a genuine issue of material fact regarding whether Complainant was penalized for seeking and obtaining a reasonable accommodation. The hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials, co-workers, and Complainant, himself. Therefore, judgment as a matter of law for the Agency should not have been granted as to issues 1, 3, 4 and 5. 2020001187 9 Issue 2 - Harassment On the other hand, we find that the AJ properly found that Complainant’s harassment claim was suitable for summary judgment. On this claim the record is adequately developed and there are no disputes of material fact. To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. We find that S2 on April 14, 2016, retrieving and placing in S2’s office Complainant’s laptop, after her approval to work at home under Article 39 was discontinued until a few days before Complainant returned to the office in no way altered the conditions of her employment or was intimidating, hostile, offensive, or abusive in nature. Assuming it was unnecessary, while S1 asking Complainant on June 9, 2016, to support her continued absence on leave could be fairly viewed as an incident contributing to a hostile work environment, this was largely undermined by the fact that S1 withdrew the request about 40 minutes later. On being disparately assigned the late shift after returning to work on June 27, 2016, Complainant stated she was given late shift rotations for the weeks of July 4, 2016 and July 11, 2016, immediately went to the union and was taken off the second week shift, was not assigned the late shift for July 8, 2016, because she had a follow-up appointment with her surgeon, was assigned to the late shift for July 29, 2016, and to the late shift weekly rotations starting on August 1, 2016, August 12, 2016, and August 29, 2016. While Complainant stated she pointed out her physical therapy schedule to S1, she did not contend she had to miss appointments, including in the detailed notes she submits on appeal. Her main thrust was the unfairness of being disparately treated. 2020001187 10 Assuming without finding that Complainant was assigned more late shifts than other Technical Experts and this was disparate treatment based on her protected groups, we find that this, taken together with S1’s request for medical documentation he retracted about 40 minutes later does not rise to the level of actionable harassment. The difference between the early and late shifts was an hour, with the late shift ending at 5 PM, the late shift matter occurred over about two months, Complainant did not work the late shift more than one consecutive week in a row nor required to work the late shift when it conflicted with her follow up appointment with her surgeon one day. Complainant does not contend that working the late shift was disruptive of her life in any way. Likewise, regarding Complainant’s reprisal claim, we find that the above would not reasonably likely deter EEO activity. CONCLUSION The Agency’s final order on issue 2 is AFFIRMED. The Agency’s final order on issues 1, 3, 4 and 5 is REVERSED because the AJ erred in issuing a decision by summary judgment. The complaint is being REMANDED to the Agency for compliance with the following Order. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency is directed to submit a renewed hearing request of Complainant’s behalf to the EEOC’s Denver, Colorado Hearings Unit, as well as the complete complaint file and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall process issues 1, 3, 4, and 5 in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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). 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). 2020001187 11 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. 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). 2020001187 12 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020001187 13 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 26, 2021 Date