[Redacted], Earlie C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 8, 2021

Appeal No. 2020003443 (E.E.O.C. Sep. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earlie C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003443 Hearing No. 420-2019-00427X Agency No. 4G-390-0030-19 DECISION On April 24, 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 March 26, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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 order. ISSUES PRESENTED The issues presented on appeal are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly granted partial summary judgment on the bases of race, sex, and age; (2) whether Complainant established by preponderant evidence that she was subjected to discrimination based on race, sex, and/or age; and (3) whether substantial evidence supports the AJ’s post-hearing finding that Complainant did not establish by preponderant evidence that she was subjected to discrimination based on disability and/or 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. 2020003443 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a PS-07 Lead Sales & Services Associate/Clerk at the Agency’s Fairlane Station in Columbus, Mississippi. Fairlane Station was a small facility that was typically staffed by two clerks, including Complainant. No carriers were assigned to Fairlane Station, which was closed on Saturdays and Sundays. Complainant’s first-line supervisor was a Supervisor, Customer Services (S1), her second-line supervisor was the Postmaster (S2), and her third-line supervisor was the Acting Manager, Post Office Operations (S3). Complainant is a Caucasian woman who was born in 1970. Complainant had previously filed an EEO complaint, which was resolved on August 6, 2018. Complainant had foot surgery on October 30, 2018. According to Complainant, the surgery was to remove a bunion, which was not a work-related condition. Complainant’s regular days off were Saturday and Sunday. From October 27, 2018, through November 2, 2018, Complainant requested to switch her days off to Sunday and Tuesday. The change would have allowed Complainant to work eight hours on Saturday, October 27, 2018, and to have the day of her surgery, Tuesday, October 30, 2018, as her regular day off. Complainant’s request for a temporary schedule change was denied. On November 14, 2018, Complainant’s surgeon released her to work with the following restrictions: must wear post-operative boot and no lifting over five pounds. Complainant’s surgeon released her to work with no restrictions on January 28, 2019. Other than briefly clocking in on three occasions to issue stamps, Complainant did not work from October 30, 2018, until January 28, 2019. On March 29, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability (physical), age (born in 1970), and reprisal for prior protected EEO activity when: 1. On October 26, 2018, February 5, 2019, and other dates, she was spoken to in a disparaging and/or demeaning manner; 2. On October 30, 2018, her change of schedule was revoked; 3. From November 15, 2018, through January 28, 2019, her request for reasonable accommodation was denied; 4. On January 8, February 6, and February 25, 2019, Complainant’s name was removed from the distribution email access list, and her email access was revoked; 5. On January 28, 2019, she was assigned duties other than her regularly assigned duties; 6. On or about January 28, January 29, and February 5, 2019, she was subjected to investigative interviews; and 2020003443 3 7. On or about October 26, 2018 and other unspecified dates, Complainant’s Family and Medical Leave Act (FMLA) rights were violated. The Agency dismissed allegation (7) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as a collateral attack on another forum’s proceedings, noting that the Department of Labor is responsible for FMLA enforcement. At the conclusion of the investigation into the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. The Agency filed a motion for summary judgment. Over Complainant’s objection, the AJ assigned to the case granted partial summary judgment on the bases of race, sex, and age. The AJ found that the record lacked probative evidence from which a reasonable factfinder could infer that the Agency discriminated against Complainant based on race, sex, and/or age. However, the AJ found that, for the claims of discrimination based on disability and reprisal, there were genuine issues of material fact that required a hearing for resolution. The AJ held a hearing on the bases of disability and reprisal on February 18, 2020, and issued a decision on March 12, 2020. In her decision, the AJ found that none of the management officials took any actions against Complainant based on reprisal. The AJ found that Complainant was not an individual with a disability because she only had a substantially limiting impairment for approximately two weeks, from the date of her October 30, 2018, surgery through November 14, 2018. The AJ also found that management did not regard Complainant as disabled. Regarding the denial of Complainant’s request for a schedule change, the AJ found that Complainant only made a verbal request for the change and that the request was not granted by management because Fairlane Station was closed on Saturday, so there would not be eight hours of work for Complainant that day. The AJ noted that Complainant was not flexible about working at facilities other than Fairlane Station. Based on Complainant’s hearing testimony, the AJ determined that Complainant did not have a five-pound lifting restriction due to a physical impairment that limited her from lifting more than five pounds; the AJ found that the surgeon limited Complainant from lifting more than five pounds as a safety precaution to prevent Complainant from dropping something on her toe at work. The AJ concluded that, although Complainant was physically capable of performing all of her job duties after her November 14, 2018, appointment, the stated five-pound lifting restriction meant that she could not perform in her clerk position without modifications. The AJ found that neither Complainant nor the union requested light duty or any workplace modifications, and, based on her hearing testimony, the AJ determined that Complainant harbored a negative attitude about light duty assignments. The AJ determined that Complainant never communicated with S1 or S2 about any specific details about her surgery, post-surgery restrictions, or her desire for reasonable accommodations. The AJ found that, on all claims, S1 and S2 were highly credible in tone, demeanor, and substance of their hearing testimony, which was consistent with the investigative record. 2020003443 4 The AJ also found that Complainant failed to submit proper leave requests for leave starting on November 14, 2018, until after she was notified that she was in an unapproved leave status. The AJ concluded that Complainant’s communication failures were caused by her deep mistrust of management, which stemmed from a prior incident where Complainant believed that management had improperly disclosed her medical information. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting partial summary judgment because she established a prima facie case of discrimination based on race, sex, and age. Regarding her disability discrimination claims, Complainant argues that her post-surgery limitations constituted a disability and that she was clearly qualified for her position. According to Complainant, the Agency failed to engage in the interactive process, and it was possible to accommodate her medical restrictions. Complainant contends that she established that she was subjected to adverse treatment based on her protected EEO activity. Complainant maintains that she established that she was subjected to a hostile work environment based on race, sex, age, disability, and reprisal. Complainant requests that the Commission remand her race, sex, and age claims for a hearing and reverse the AJ’s post-hearing conclusion that she did not establish that she was subjected to discrimination based on disability and/or reprisal. In response to Complainant’s appeal, the Agency asks that the Commission affirm its final order implementing the AJ’s decision. After the Agency submitted its brief opposing the appeal, Complainant submitted a copy of a PS Form 3189, Request for Temporary Schedule Change for Personal Convenience, that she completed on October 24, 2018. According to Complainant’s attorney, despite due diligence, Complainant was unable to find a copy of this document until after she filed her appeal. On the form, Complainant requested that, from October 27, 2018, through November 2, 2018, her scheduled days off change from Saturday and Sunday to Sunday and Tuesday. The document appears to have been signed by S1 on October 27, 2018, who disapproved Complainant’s request, noting, “Had to deny can’t have 8 hrs Sat.” ANALYSIS AND FINDINGS Standard of Review In evaluating the AJ’s issuance of partial summary judgment, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an 2020003443 5 administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110 at Chap. 9, § VI.B. Procedural Dismissal As a preliminary matter, we consider the Agency’s procedural dismissal of allegation (7). The Agency dismissed this claim, in which Complainant alleged that the Agency violated her FMLA rights, for failure to state a claim as a collateral attack. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). 2020003443 6 A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, and state or federal litigation. See Fisher v. Dep't of Def., EEOC Request No. 05931059 (July 15, 1994). FMLA is governed by the Department of Labor and Complainant should raise any concerns that her FMLA rights were violated with the Department of Labor. See Susie K. v. U.S. Postal Serv., EEOC Appeal No. 2020003012 (June 2, 2020). Accordingly, we agree that this matter is outside the jurisdiction of the Commission and affirm the Agency’s dismissal of claim 7. Issuance of Partial Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant contends that the AJ should not have granted partial summary judgment because she could establish a prima facie case of discrimination based on race, sex, and age. However, even if Complainant could establish a prima facie case of discrimination based on race, sex, and/or age, she has identified no genuine issues of material fact. We find that the AJ appropriately granted summary judgment on Complainant’s race, sex, and age claims. Denial of Reasonable Accommodation Complainant alleged that she was denied a reasonable accommodation. In order to establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is 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, No. 915.002 (Oct. 17, 2002). 2020003443 7 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). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). We find that Complainant has not established that she was a qualified individual with a disability. Assuming for the purposes of this decision that Complainant was an individual with a disability, the preponderance of the evidence establishes that, with a five-pound lifting restriction, Complainant could not perform the essential functions of her Lead Sales & Services Associate/Clerk position, with or without accommodation. Although Complainant testified at the hearing that she could have worked at the window as long as there was another clerk at the other window who could lift any parcels that weighed more than five pounds, in a November 14, 2018, email to the Occupational Health Nurse (RN1), Complainant stated, “I basically cannot work the window.” Report of Investigation at 223. We find that substantial evidence supports the AJ’s finding that, despite multiple requests for clarification from RN1 and S3 regarding her inability to work the window, Complainant did not explain her restrictions or otherwise request modified duty. Accordingly, Complainant has not established by the preponderance of the evidence that she was denied a reasonable accommodation. Disparate Treatment and Harassment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a 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 2020003443 8 liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or 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). 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). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also Carroll, supra. Complainant alleged that she was subjected to discrimination when her request for a schedule change was denied. On appeal, she also provided new evidence in the form of a copy of the PS Form 3189 signed by S1 denying her request to change her schedule. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See EEO MD-110 at Chap. 9, § VI.A.3. Under the circumstances, we need not assess whether Complainant has established that this evidence was not reasonably available to her prior to or during the investigation or hearing process. Although the AJ found that Complainant only made a verbal request for a schedule change, the AJ also found that the Agency’s legitimate, nondiscriminatory reason for not approving the requested schedule change was that there was not eight hours of work for Complainant on a Saturday, when Fairlane Station was closed. The AJ’s determination is consistent with the note S1 wrote on the PS Form 3189. We find that Complainant has not established by preponderant evidence that the Agency’s legitimate, nondiscriminatory reason for denying the requested schedule change was a pretext for discrimination based on race, sex, age, disability, and/or reprisal. Complainant alleged that she was discriminated against when management removed her from the distribution email list and temporarily removed her email access. The Agency’s legitimate, nondiscriminatory reason for removing Complainant from the distribution email list and taking away her email access was that Complainant would not respond to management emails or provide a “read receipt” when requested. As evidence of pretext, Complainant contends that it did not make sense to take away access to digital communication to remedy the perceived issue. However, in this case, questioning the wisdom of management’s chosen method to address communication problems is insufficient to establish that the proffered legitimate, nondiscriminatory reason was pretext for discrimination, and we find that Complainant has not otherwise established pretext by the preponderance of the evidence. Complainant alleged that she was subjected to unlawful discrimination when, on January 28, 2019, she was assigned duties outside of her regularly assigned duties. The record indicates that January 28, 2019, was Complainant’s first day back at work after surgery. 2020003443 9 On January 28, 2019, Complainant was directed to complete a HAZMAT training course instead of boxing mail. The Agency’s legitimate, nondiscriminatory reason was that Complainant’s name was on a short list of employees in facilities under S3’s supervision who had not yet completed the required training. Management also sent a clerk to Fairlane Station on January 28 and 29, 2019, so that Complainant could catch up on tasks that needed to be completed by a Lead Clerk. The Agency’s legitimate, nondiscriminatory explanation was that certain work needed to be completed by a PS-07 level Lead Clerk. As evidence of pretext, Complainant asserts that a training should not have taken precedence over serving customers, and she questions why management allowed this work to accumulate during her absence. Regarding personnel actions by an agency, we have consistently recognized that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Moreover, mere assertions or suppositions by Complainant are not enough to establish pretext. Richardson v. Dep't of Agric., EEOC Petition No. 03A40016, (Dec. 11, 2003). Neither is it enough for Complainant to simply disagree with the Agency's actions. Harris v. Dep't of the Army, EEOC Appeal No. 01940486 (Sept. 6, 1994), request to reconsider denied, EEOC Request No. 05950046 (Mar. 21, 1996). We have consistently stated that pretext analysis is not concerned with whether the Agency's action was unfair or erroneous but whether it was motivated by discriminatory animus. Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). We find that Complainant has not established by preponderant evidence that the Agency assigned her work outside of her usual daily tasks based on discriminatory animus. Complainant alleged discrimination with respect to management conducting various investigative interviews. The Agency’s legitimate, nondiscriminatory reason for conducting an investigative interview on January 28, 2019, was that Complainant had not properly requested leave for her absence from November 14, 2018, through January 27, 2019. The Agency’s legitimate, nondiscriminatory reason for conducting an investigative interview on February 6, 2019, was that Complainant had failed to act on emails sent to her on January 29, 30, and 31, 2019, indicating that Fairlane Station was not in compliance with its Ready Post and EPS Cycle counts. The Agency’s legitimate, nondiscriminatory reason for conducting an investigative interview on February 8, 2019, was that Complainant had failed to box all of the mail on February 1, 2019. The Agency’s legitimate, nondiscriminatory reason for conducting an investigative interview on April 26, 2019, was that Complainant had been handing slips of paper to customers that asked them to complain about Fairlane Station management. We find that Complainant has not established that these legitimate, nondiscriminatory reasons for conducting investigative interviews were pretextual. In addition, Complainant alleged that she was subjected to discriminatory harassment, including when she was spoken to in a disparaging and/or demeaning manner on dates including October 26, 2018, and February 5, 2019. When asked to elaborate about what specifically occurred that was disparaging or demeaning, Complainant did not specify, but she generally alleged that management speaks to her condescendingly. 2020003443 10 S1 and S2 both denied speaking to Complainant in a disparaging and/or demeaning manner. We find that Complainant has not established by the preponderance of the evidence in the record that the alleged harassment occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 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). 2020003443 11 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 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 September 8, 2021 Date