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

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2020000997 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elayne C.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000997 Hearing No. 541201600103X Agency Nos. DEN140758SSA, DEN150087SSA DECISION On November 4, 2019, Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 3, 2019 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Attorney Advisor, GS-905-13, Office of Disability Adjudication and Review ("ODAR"), Denver Hearing Office, in Denver, Colorado. On November 2014, Complainant filed two EEO complaints, which were consolidated during the investigation stage. After investigating the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. 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. 2020000997 2 Following an Initial Conference with the parties, the AJ identified three claims of alleged discrimination on the bases of race (African-American), sex (female), disability (mental and physical), age (49), and reprisal (prior protected EEO activity): 1. Whether the Agency subjected Complainant to a hostile work environment/ harassment when: a. On July 28, 2014, Complainant received a response from her group supervisor (“S1”), indicating that S1 had several problems with Complainant’s “production numbers” and issues with Complainant meeting “benchmarks.” b. [Withdrawn].2 c. From October 7, 2014 through present, Complainant has been subjected to a higher level of scrutiny and criticism compared to her co-workers. d. On October 10, 2014, the “create dates” on three of Complainant’s assigned cases were changed, causing her to miss the benchmark date of these cases. 2. Whether the Agency subjected Complainant to discrimination when: a. During September 2014 and October 2014, Management delayed responding to Complainant’s request for reasonable accommodation, and required additional information regarding her reasonable accommodation request. b. On October 22, 2014, Complainant was required to come to the office for a mandatory training which was outside her medical restrictions as it was available on video on demand. c. October 30, 2014, Complainant was required to submit a leave slip for the time it took to commute to and from the office on October 22, 2014. 3. Whether the Agency subjected Complainant to disparate treatment and a hostile work environment/harassment when: on October 22, 2014, she was charged 3 hours Absent Without Official Leave (“AWOL”). Once the parties further developed the record through discovery, the Agency submitted a Motion for Summary Judgment. Complainant responded to the Agency’s Motion, and the Agency replied. On September 24, 2019, the AJ issued a decision without a hearing, incorporating the Agency’s Motion by reference, and adopting it in its entirety. 2 Complainant withdrew Claim 1(b) in her Response to the Agency’s Motion for Summary Judgement, dated December 13, 2017. 2020000997 3 The evidence developed during the investigation and through discovery includes, but is not limited to, the following undisputed facts.3 Complainant’s first level supervisor (“S1” mixed race (Asian and Caucasian), female, 33, prior EEO activity) was a Supervisory Attorney (Group Supervisor), and her second level supervisor (“S2” white, female, 56, prior EEO activity) was the Denver Hearing Office Director. Complainant directly supported the Administrative Law Judges in the Agency’s Denver Hearing Office, including the Chief ALJ (male, other bases not specified). According to the position description, the primary duties of an ODAR Senior Attorney Advisor (also referred to as a “decision writer”) involve analyzing, researching, and developing cases and drafting decisions. Complainant testified that in addition to decision-writing, she was “doing whatever was asked of me to do.” Specifically, she identifies instances on unspecified dates where she was assigned to review cases for on-the-record decisions and conduct pre-trial hearings. Both activities necessarily impacted her ability to meet the benchmarks used to track performance of decision writers. Benchmark Requirements All ODAR decision writers are held to a national 7-day benchmark and assigned cases with estimated completion times that will allow them to meet the 7 day benchmark. For example, the Denver Hearing Office, which based its estimated completion times on the ODAR Decision Writer Statistical Index and the Electronic Business Process's "Benchmarks for Quality Case Processing," lists the estimated completion time for a partially unfavorable decision as 8 writing hours. If an employee exceeds the benchmark, they are asked by their supervisor to provide an explanation and an estimated date of completion. Likewise, if an employee believes that they won’t meet a benchmark for other reasons, such as a case missing necessary evidence for a decision, they can discuss the case with their supervisor, who may recategorize the case or change the benchmark. At the Denver Hearing Office, S2 oversaw benchmarks for all workloads and employees, and ran reports for decision writers, as a way to track whether benchmarks were being met. As Supervisor, S1 provided all feedback on writing and assignments for the decision writers who reported to her. If S2 ran a report and found that one of S1’s decision writers exceeded or was at risk of exceeding a benchmark, she notified S1, so that S1 could discuss the case with the decision writer. S2 acknowledged that “a myriad of factors” can impact the estimated time of completion of a case, thus “not meeting a benchmark leads to a discussion about the case, but not to any kind of sanction against any employee.” 3 In addition to the facts in the Agency’s Motion, adopted by the AJ, we have considered additional facts from Complainant’s Response, which the Agency did not challenge in its Reply. 2020000997 4 On July 28, 2014, in an email exchange with Complainant, S1 identified several open cases assigned to Complainant that were well beyond the benchmark date. S1 offered to provide Complainant with guidance to prevent getting “bogged down” with a case file and asked Complainant to meet with her the following Thursday to discuss her workload. Complainant responded, copying both the Chief ALJ and S2 on the email, explaining why the particular cases S1 identified were not yet complete, and, among other things, requesting that S1 provide her with specific details on what was expected of her with respect to “numbers” and “benchmarks.” Complainant concluded that the Thursday meeting with S1 “need not occur. I am convinced that it is a waste of my time…. as I indicated in a prior email, if I am not meeting management's expectations, I am confident that management knows what to do and so do I.” S1 responded by acknowledging Complainant’s points, as every case is different, while citing several instances where Complainant’s work hours did not align with her assignment completion, such as an instance where Complainant did not complete any cases over a period of 8 days. S1 stated, “I think it's important that we meet Thursday morning so we can discuss the concerns you brought up.” Complainant replied, “I no longer desire to meet with you on Thursday.” S1 responded that she would keep the time open in case Complainant changed her mind. On September 26, 2014, S1 issued a Letter of Reprimand to Complainant regarding both performance and conduct matters mostly outside the scope of the instant complaint, which Complainant references as an additional fact in her Response to the Agency’s Motion. Among other things, the letter charges Complainant with “treating others in a manner that lacks courtesy, consideration, professionalism, and/or civility.” The July 28, 2014 email exchange is referenced as an example, as S1 states, “[o]n July 28, 2014, I sent you the online referral link to the Employee Assistance Program ("EAP") because you had told me repeatedly that you were under stress. In response, you stated, "You know, EAP is also a great resource for young managers, like yourself as well." Significantly, the Letter is devoid of any reference to the exceeded benchmarks that were also discussed in the July 28, 2014 emails. There is no evidence that Complainant was subject to an adverse action as a result of the exceeded benchmarks. On October 10, 2014, Complainant saw three of the “create dates” on her assigned cases had been changed. As the “create date” on a case starts the time frame for a benchmark, the consequences of the change would be missing benchmarks for these cases. However, Complainant never followed up with Management regarding the changed dates. S2 testified that she was unaware of this incident, but “[i]n a case where the dates are incorrect, missing the benchmark would not even be a topic for discussion.” She further clarifies that benchmarks are “general guidelines.” Ultimately, Complainant did not experience an adverse action, such as discipline, when she exceeded the benchmark for these cases. 2020000997 5 Reasonable Accommodation From August 15, 2014 through September 15, 2014, Complainant took a leave of absence to obtain treatment related to her disability. On September 12, 2014, prior to returning to work, Complainant notified S1 by email that she required a reasonable accommodation for a disability. She provided a September 9, 2014 letter from her doctor, which did not identify the nature of Complainant’s impairment, but stated: [Complainant] is to avoid anxiety-provoking interpersonal interactions with coworkers and supervisors, including emails, phone conversations and in-person interactions. If stressful work interactions do inadvertently occur, [Complainant] should be allowed a 30-minute break to remove herself from the stressful situation. If a potentially stressful meeting is necessary between [Complainant] and her supervisor or a coworker, she should be given advanced notice and allowed to obtain a representative of her choice in order to mitigate the stressfulness of the interaction. S1 immediately forwarded Complainant’s request and the letter to the Denver Regional Attorney and the Regional Reasonable Accommodation Coordinator to determine the next steps. On September 22, 2014, Complainant followed up with S1, providing another letter from her doctor and requesting telework as an additional accommodation. The letter explained that Complainant had been prescribed medications that made it unsafe for her to commute. S1 responded within an hour, that she would grant the telework request temporarily while she continued to review Complainant’s reasonable accommodation request. On September 25, 2014, S1 issued a formal letter and Memorandum to Complainant requesting additional information to support her reasonable accommodation request. She provided Complainant with a copy of her position description to assist her and her doctor when identifying a reasonable accommodation. On October 9, 2014, S1 emailed Complainant inquiring about the additional medical documentation she requested. Complainant responded that her attorney addressed the matter in a fax sent earlier that morning and explicitly asked that going forward, S1 direct communications about her reasonable accommodation to her attorney. The attorney notified the agency that Complainant’s doctor required additional time to submit the revised accommodation request. On October 10, 2014, S1 followed up, asking if Complainant required additional time to submit medical documentation, and again, Complainant asked S1 to contact her attorney. On October 16, 2014, Complainant provided additional medical documents from her doctor reflecting her diagnosis of several chronic disorders that manifested as severe anxiety. The doctor specified, “[Complainant] is physically and cognitively able to perform all duties of this job. 2020000997 6 Her recent difficulties (and the associated request for accommodations) are in two areas: 1) exacerbations of anxiety hindering her ability to focus on work and, 2) medications which make commuting to work unsafe.” In addition to the accommodations Complainant initially requested, the doctor recommended that Complainant work from home full time, “with the exception of mandatory training or meetings that cannot be conducted via telephone or videoconferencing.” Complainant’s doctor also indicated that Complainant’s symptoms were episodic and would be under control within three to six months. S1 granted Complainant’s that her request to work from home full time as a reasonable accommodation on October 21, 2014. On November 6, 2014, Complainant received formal notice that her reasonable accommodation request was formally approved in part, including permitting her to telework 5 days a week, take a 30-minute break following an anxiety-provoking interpersonal interaction with a supervisor or coworker, and receive a written agenda in advance of any formal meeting with S1. On December 16, 2014, Complainant’s attorney confirmed, via email, that the reasonable accommodation granted by the Agency were acceptable and agreed to provide additional medical documentation should Complainant seek to extend the accommodation. AWOL On October 21, 2014, Complainant informed S1 that she would be unable to attend the mandatory October 22, 2014 ODAR Continuing Education Program (“OCEP”) training and wrap up discussion. S1 explained that the presentation and wrap up discussion were conducted in person and requiring Complainant to attend was not in violation of her reasonable accommodation. Complainant then informed S1, “you are putting me in an unsafe situation. I will have to medicate, if not over medicate, to get through this presentation. Additionally, after the training is over, I am not attending the wrap up discussion. I will immediately attempt to commute home, if not too sedated and physically able.” S1 reminded Complainant both the training and the wrap-up discussion were required. She also told Complainant that because of the mandatory training, telework for employees had been canceled, so if she left early, she would have to use leave to cover the rest of the workday. On October 22, 2014, Complainant attended the mandatory OCEP training and wrap-up discussion, remaining on duty for an additional hour and a half before signing out without requesting leave. After commuting home without incident, Complainant resumed telework. S1 notified Complainant that she would be charged with AWOL for the remaining hours of the day. Complainant then asserted that as part of her reasonable accommodation, she would complete her workday from home. The record reveals that S1’s understanding of the Agency’s policy for telework employees on canceled telework days accurate, with the exception of employees whose telework was a reasonable accommodation. 2020000997 7 Leave Required for Commute Time On October 30, 2014, Complainant was scheduled to meet with S1 regarding her annual performance appraisal at 10:00 am. She arrived a half hour early and spent a half hour in a nearby coffee shop, which she mentioned to S1. After their meeting, S1 instructed Complainant to request leave “cover any gap between when she arrived in the area and when she actually came in the office.” In addition, S1 told Complainant that she could split her day between work and home because telework had not been canceled that day. Regardless, Complainant submitted a leave request for two hours to cover her commute on October 30, 2014. S1 disapproved the request and after Complainant expressed confusion and frustration, S1 told Complainant that she was asking her to submit a leave slip to cover the time she spent at a local coffee shop prior to their performance discussion. There is no indication in the record that Complainant was ever instructed to submit a leave request for her commute. The AJ issued a decision by summary judgment in favor of the Agency finding that Complainant failed to prove discrimination as alleged. The Agency issued a final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). No AJ Error The AJ has full responsibility for the adjudication of the complaint. 29 C.F.R. § 1614.109(e), EEO MD-110, Chap. 7, § III(D). This responsibility gives the AJ wide latitude in directing the terms, conduct, or course of EEOC Administrative hearings. See Andy B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120131912 (Oct. 28, 2015) (other citations omitted). However, 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). In the instant case, the AJ adopted the Agency’s statement of facts, reasoning that the Motion properly identified the “undisputed facts, applicable legal standards, and grounds upon which this case should be decided without a hearing.” 2020000997 8 As the record is adequately developed, and supports the Agency’s statement of facts, we find that the AJ did not err, but acted within her discretion when she opted to adopt the Agency’s Motion in its entirety. Complainant contends that by adopting the Agency’s statement of facts, the AJ committed a legal error warranting reversal of summary judgment.4 Among other things, Complainant argues that the facts are not “undisputed” and cites her Response brief. We have previously reversed summary judgment decisions where the AJ erroneously failed to view the evidence in the light most favorable to the complainant, the non-moving party, such as relying on testimony based on an improper credibility finding. See, e.g. Whitney G. v. Dep't of Homeland Sec., EEOC Appeal No. 0120162460 (May 9, 2018). Here, however, Complainant offers assertions, but no evidence refuting the material facts, as summarized in the Agency’s Motion. Moreover, we carefully reviewed Complainant’s submissions in response to the AJ’s Motion and considered the facts as she provided them. Complainant’s statement of facts appeared to augment the record rather than create a dispute of material fact warranting a hearing. On appeal, the Agency contends that because Complainant’s appellate argument was focused on the legality of the AJ’s summary judgment decision, as opposed to the merits, Complainant forfeited her right to appeal the Agency’s Final Decision on the merits. We disagree, and remind the Agency that all summary judgment decisions appealed with this Commission are subject to a de novo standard of review. EEO-MD-110 at Chap. 9, § VI.B. Reasonable Accommodation The Commission's regulations require an agency to make reasonable accommodation for the known physical and mental limitations of a qualified individual with a disability unless it can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. See Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015), citing EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002 (“EEOC Guidance No. 915.002”), Question 1 (Oct. 17, 2002). After receiving a request for reasonable accommodation, the employer should engage in the “interactive process,” which is an informal process with the requesting individual to clarify their needs and identify the appropriate reasonable accommodation. See EEOC Guidance No. 915.002, see also, Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). We note that protected individuals are entitled to reasonable accommodations, but they are not necessarily entitled to their accommodation of choice. Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). 4 Complainant also repeatedly contends on appeal that the AJ’s dismissal was a legal error in violation of the Administrative Procedures Act (“APA”). As the Commission does not enforce the APA, this allegation is outside the scope of our jurisdiction and will not be further addressed. 2020000997 9 When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. EEOC Guidance No. 915.002 at Q. 6. The employer is entitled to know that the individual has a covered disability for which she needs a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. It is undisputed that Complainant is a “qualified individual with a disability.” However, Complainant’s disability related impairments were not obvious, and her initial September 12, 2014 request for accommodations was insufficient, as it was essentially a list of accommodations without specifics on her functional limitations and impairments. The Agency’s request for additional information did not constitute harassment, as alleged by Complainant, but was proper because it sought reasonable documentation to obtain the information necessary to engage in the interactive process. The record reflects that upon receiving the requested reasonable documentation, the Agency engaged in the interactive process and provided Complainant with temporary accommodations prior to formally offering reasonable accommodations. Assuming, arguendo, Complainant provided evidence that a question of fact existed over whether the Agency delayed providing her with reasonable accommodations by prolonging or failing to engage in the interactive process, it is undisputed that Complainant ultimately received effective reasonable accommodations. Liability for a failure to engage in the interactive process occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Id. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 2020000997 10 This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. den. EEOC Request No. 0520120603 (Jan. 31. 2013). Claim 2(a) was already addressed in the reasonable accommodation section, and Claim 2(c) is not supported by the evidence. Complainant’s remaining disparate treatment allegations, Claim 2(b) and Claim 3 both concern the events of October 22, 2014, and both are matters that fall within S1’s business judgment. Specifically, whether or not an in-person version of training is mandatory over video training, and how to implement the Agency’s AWOL policy fall within the Agency’s business discretion. Complainant has not provided evidence that a question of material fact exists for her disparate treatment claims to warrant a hearing. Harassment/Hostile Work Environment 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 her prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). The allegations in Claim 1 and Claims 2(b) and Claim 3 all involve routine work assignments, instructions, and admonishments, which are all “common workplace occurrences” that do not rise to the level of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. 2020000997 11 To the extent Complainant alleges that she was singled out by S1, and subjected to higher scrutiny than her peers, with respect to benchmarks, we have previously found similar claims, while unpleasant, are also “common workplace occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (finding the complainant’s allegation that her supervisor monitored her work duties and time in and out of the office more closely than her coworkers amounted to a common workplace occurrence.). Likewise, it is well established that instances of a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 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. 2020000997 12 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020000997 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 18, 2021 Date