[Redacted], Foster M., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2020004266 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Foster M.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020004266 Agency No. DOI-OS-19-0580 DECISION On July 21, 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 June 26, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a GS-0342-13 Support Services Specialist (Facilities Specialist) in the Agency’s Office of Inspector General (OIG), Office of Management, Facilities and Operations Services Division in Lakewood, Colorado. Complainant was the only Facilities and Operations Services Division employee based in Lakewood. Complainant stated that he dealt with all issues related to facilities in Lakewood and acted as a liaison between Agency employees and building management. He characterized Lakewood-based employees as his customers. His first-line supervisor, the Facilities and Operations Services Division Director (S1), and his second-line supervisor, the Deputy Assistant Inspector General for Management (S2), were both based in Herndon, Virginia. Report of Investigation (ROI) at Ex. F2, F3. 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. 2020004266 2 According to Complainant, he has post-traumatic stress disorder (PTSD). Complainant stated that, because of his PTSD, he does not react well to stress and experiences insomnia, anxiety, and heart palpitations. Complainant averred that he first engaged in protected EEO activity when he contacted an EEO counselor to initiate the instant EEO complaint. ROI at Ex. F2. The Agency was planning to close its OIG office in Rapid City, South Dakota in February 2019. Complainant was tasked with assisting with the closing and, in November 2018, he began coordinating with the Lakewood-based Assistant Special Agent in Charge (ASAC)2. According to Complainant, in December 2018, he needed to make a list of items in the office and take photos so others could determine where the property should go. Complainant averred that he would return to Rapid City at a later date to coordinate pick up of items and ensure the space was in good condition to be returned to the landlord. Complainant and the ASAC both planned to drive from Lakewood to Rapid City on December 19, 2018. While Complainant originally planned to return to Lakewood on December 20, 2018, S1 suggested that he stay a second night in Rapid City and return on December 21 instead. Complainant stated that, because the office in Rapid City was small, he did not think a second night would be necessary. S1 stated that he advised Complainant to stay an additional night in Rapid City, so that he could get as much done in December as possible and minimize the work to be accomplished during the next trip. ROI at Ex. F2, F3. On December 19, 2018, Complainant picked up a rental car, drove to Rapid City with his wife, and checked into the hotel before arriving at the Rapid City office. Once at the office, Complainant stated that he coordinated with the ASAC, made a list of the inventory in the office, and took photos. The next day, explained Complainant, he briefly went to the Rapid City office. Complainant stated that he had completed his work taking inventory of the four-room office. According to Complainant, as he left the Rapid City office, he told the Special Agent (SA) that, if he or the ASAC needed anything, they could email or call Complainant. Contrastingly, the ASAC stated that plenty of work remained for Complainant to do in Rapid City when he left, on December 20, 2018. According to the ASAC, she tagged all the items herself and completed other tasks, such as looking in cabinets and desk drawers, because Complainant was not there. Further, the ASAC averred that she asked the SA to take photos of the items in the Rapid City office because Complainant did not share any of the photos he had taken. ROI at Ex. F2, F2f, F4. After leaving the Rapid City office on December 20, 2018, Complainant drove with his wife in the rental car to Theodore Roosevelt National Park in North Dakota. According to Complainant, he teleworked for the remainder of his workday because he had his government cell phone with him and monitored his calls and emails. Complainant and his wife returned to Rapid City and spent the night of December 20 in the hotel. Complainant reasoned that the government did not incur any additional expenses because the hotel and the rental car had already been paid for through December 21, 2018. ROI at Ex. F2, F2f. 2 The Lakewood ASAC was not in Complainant’s supervisory chain. 2020004266 3 On February 22, 2019, the ASAC submitted a memorandum to her supervisor detailing concerns about Complainant, his work ethic, and possible fraud, particularly in relation to the December 2018 Rapid City trip. As background, the ASAC also described issues with Complainant dating back to 2016. ASAC noted that she was not involved in the decision to investigate the matter, rather, senior leadership made the referral. According to S2, when he saw the ASAC’s memorandum, regarding Complainant’s conduct during the December 2018 trip to Rapid City, he forwarded it to the OIG Program of Integrity Division (PID) to see if an investigation was warranted. Complainant averred that the ASAC made a number of false statements that led to the investigation. Complainant alleged that his disability was a factor in the ASAC’s decision to report him. Specifically, Complainant noted that when he had disclosed his PTSD to the ASAC several years earlier, when they were in Albuquerque, New Mexico, the ASAC made a comment that reflected that she did not think PTSD was real. The ASAC denied both that Complainant shared with her that he had PTSD and making a remark about the condition. ROI at Ex. F2, F2f, F4, F5, F10b1. On May 15, 2019, the Acting PID Director issued the report of investigation into the allegation of misuse of government time and resources by Complainant to S2. According to the Acting PID Director, the investigation found that Complainant misused his position and government resources when he engaged in personal sightseeing travel with a government-paid rental car during official duty hours, for which he was paid, when he was supposed to be helping prepare the Rapid City office for closure. On June 6, 2019, S1 issued Complainant a proposed five-day suspension based on the findings that Complainant was AWOL, used a rental car paid for by the government, and traveled to an unauthorized location during working hours. According to S1, until he was interviewed as part of the OIG investigation, he was unaware that Complainant had traveled to Theodore Roosevelt National Park in North Dakota with his wife on December 20, 2018. S1 averred that, as far as he knew, the Rapid City office closing had gone well, so Complainant was issued a cash award. While S1 noted that it was not a problem for Complainant to bring his wife to Rapid City if no additional expenses were incurred, he stated that Complainant used government time and resources to travel to the national park with his wife. According to S1, if Complainant did not have any additional work on December 20, 2018, he should have contacted S1 and either returned to Lakewood that day or requested leave for the remainder of the day. ROI at Ex. F3, F10a, F11a. Complainant asserted that, prior to his proposed suspension, he had a great working relationship with S1. Further, he described receiving various awards from S1, including a cash award for his efforts closing the Rapid City office. After the ASAC complained about him, alleged Complainant, the ASAC’s supervisor, the Deputy Assistant Inspector General for Inspections (DAIGI) started harassing him in the office. According to Complainant, the DAIGI frequently walked by his cubicle to ensure he was not taking an extended lunch break or leaving the office early. The DAIGI acknowledged that she periodically got up and walked a loop around the office, but she denied walking past Complainant’s cubicle to check on him. 2020004266 4 The DAIGI noted that, although she is not in Complainant’s supervisory chain and has no control over his schedule, as the most senior person at the Lakewood office, she would sometimes mention facilities issues to S2. ROI at Ex. F2, F7. S1 stated that, even before the investigation into Complainant’s December 2018 trip, he had received complaints that Complainant was not available when needed because he would leave at 2:30 p.m. According to S1, the DAIGI told him that Lakewood employees would have to drop everything to handle facilities issues when Complainant was unavailable. S1 added that, when Complainant was teleworking, it was difficult to reach him. According to S1, none of his subordinates worked a flexible schedule and Complainant’s coworkers were more communicative when teleworking. S2 stated that the DAIGI raised several issues related to Complainant, including Complainant teleworking without his laptop, other Lakewood employees having to address facilities issues after Complainant had left for the day, and concerns with the offices not being cleaned. S1 averred that he told Complainant he needed to be at the office and available during core hours. On June 6, 2019, S1 emailed Complainant and instructed him to telework the remainder of the day to review the documents related to his suspension. Further, S1 stated that Complainant would need to return to the office the next day and that, starting the following Monday, he needed to work an 8 a.m. to 4:30 p.m. schedule from the office. ROI at Ex. F3, F5, F11b. The next day, on June 7, 2019, Complainant requested flexible hours and the ability to telework as a reasonable accommodation for his PTSD. On July 16, 2019, S1 offered Complainant an alternate accommodation consisting of a gliding schedule. The gliding schedule provided the ability to arrive between 7:30 a.m. and 9 a.m. and work core hours from 9 a.m. to 4 p.m. Complainant asserted that he requested a reasonable accommodation when S1 told him that he had to work a set schedule, from 8 a.m. to 4:30 p.m., and could not telework. Believing the new requirements were punitive, Complainant noted that he was informed of these changes at the same time he was issued the proposed suspension. According to Complainant, he does not sleep well at night due to his PTSD, so he becomes fatigued in the afternoon. Complainant averred that he had previously worked a flexible schedule, from 6 a.m. to 2:30 p.m., and that all other Lakewood employees are able to work a flexible schedule and telework. Complainant stated that he asked to maintain his 6 a.m. to 2:30 p.m. schedule as a reasonable accommodation. According to Complainant, the gliding schedule does not address his afternoon fatigue. Complainant argued that he was able to perform all his work duties between 6 a.m. and 2:30 p.m. and noted that it was helpful for him to be the first person in the building so he could ensure the lights were on and the heat was working. S1 stated that Complainant accepted the offered accommodation of the gliding schedule. S1’s July 16, 2019, notice to Complainant stated that the reasonable accommodation would be revisited in six months and as needed. ROI at Ex. F2, F3, F11c, F12a, F12d. On June 27, 2019, S2 issued a decision upholding the five-day suspension. S2 found that the charges of AWOL and misuse of government time and travel were sustained. According to S2, the investigation showed that Complainant committed time and attendance fraud when he worked only one or two hours on December 20, 2018, but was paid for a full day of work. S2 added that Complainant openly admitted to his actions. 2020004266 5 S2 stated that he was unaware of other employees who had engaged in similar misconduct and that the penalty of a five-day suspension was appropriate. To minimize the impact of lost pay, S2 split Complainant’s suspension between two pay periods. Complainant would be suspended from duty and pay from July 3-5, 2019, and July 8-9, 2019. Complainant filed an administrative grievance. On July 17, 2019, the OIG General Counsel found that the five-day suspension decision was reasonable and appropriate. ROI at Ex. F5, F11e, F11f. Complainant stated that he was shocked by the suspension and did not think it was justified. According to Complainant, he did not think that teleworking without permission on December 20, 2018, was a problem because employees at Lakewood did it all the time. Complainant averred that the Lakewood office had a reputation as the “Country Club of IGs” with a permissive culture that meant, as long as work was completed, employees could come and go as they pleased during working hours. ROI at 157. Complainant stated that he later reported several Lakewood employees for waste, fraud, and abuse to the Agency’s OIG, citing extra-long lunch breaks, traveling without using the available GOVs, and wasting taxpayer dollars by prompting an investigation of him. According to Complainant, nothing came of his reports. ROI at Ex. F2, F2b, F2c, F2d. On October 23, 2019, S1 issued Complainant his performance evaluation for FY 2019. He received a rating of “3” in each critical element and an overall “3” rating. Noting that he received a 3.8 and a 4.4 rating, in FY 2018 and FY 2017 respectively, Complainant argued that S1 failed to provide justification for the significantly lower FY 2019 rating. Since his duties had not changed and S1 had not notified him of any reduction in his performance, citing S1’s midyear review that he was meeting expectations, Complainant believed he deserved the same or higher rating as in prior years. Contrastingly, S1 asserted that Complainant’s performance had fallen and his customer service results were poor. For example, according to S1, Complainant was supposed to create a ticket for every action, but he did not have many for FY 2019. S1 averred that, on one occasion, Complainant did not order furniture on time. Also, while it was one of his responsibilities, S1 noted that Complainant indicated that he lacked access or the ability to issue access code to employees. Finally, S1 averred that Complainant left Rapid City early in December 2018, leaving the ASAC and the SA to complete the work. Complainant averred that the door code issue was pretextual. ROI at Ex. F2, F2f, F3, F3a, F13a, F13b, F13c, F13d. On September 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (mental) when: 1. On or about February 22, 2019, he became the subject of an investigation based on false statements; 2. On June 27, 2019, he was suspended for five days without pay; and 3. On July 16, 2019, he was granted a gliding schedule as a reasonable accommodation. 2020004266 6 On October 30, 2019, Complainant requested an amendment to his complaint alleging that the Agency subjected him to discrimination based on reprisal for prior protected EEO activity when: 4. On October 23, 2019, he received a significantly lower FY 2019 annual performance rating. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that he was subjected to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the ASAC’s various statements about the December 2018 trip to Rapid City were inconsistent and that the ASAC, S1, and S2 all lied during the EEO investigation. Complainant notes that he extended the length of his trip to Rapid City as directed by his supervisor. Complainant argues that he did everything asked of him regarding the Rapid City office closure and was even given an award for doing a good job, so a suspension for his conduct during the trip does not make sense. Instead, asserts Complainant, the ASAC acted out of disdain for him because of his disability and that he was subsequently retaliated against by the Agency. In response, the Agency contends that Complainant’s allegations that the ASAC, S1, and S2 lied are not supported by the evidence. The Agency requests that its final decision finding no discrimination be affirmed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment 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). 2020004266 7 He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco 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). 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. In the instant case, Complainant alleges he was subjected to discrimination based on disability when he was suspended for five days. The Agency’s legitimate, nondiscriminatory reason the suspension was that the OIG PID investigation found that Complainant was AWOL and used government time and funds for personal travel in December 2018. As evidence of pretext, Complainant contends that the ASAC had previously questioned whether PTSD was real and acted on disability-based animus when she reported his conduct. However, even if the ASAC made the comment about PTSD as alleged, there is no evidence in the record connecting the ASAC’s alleged comment to Complainant’s suspension. Complainant states that he extended his trip to Rapid City at the direction of S1. However, this is insufficient to establish pretext because S1 did not direct Complainant to leave the Rapid City office and travel to a national park in a government rental car for personal sightseeing during working hours. Complainant also argues that he should not be suspended because he received an award for his work closing the Rapid City office and because other Lakewood employees engaged in similar conduct but were not disciplined. However, the record reflects that Complainant received the award before PID investigated the matter and S1 became aware of the December 2018 misconduct. Regarding other Agency employees, Complainant was the only employee working out of Lakewood who was supervised by S1 and S2. Moreover, he has not established by preponderant evidence that other Lakewood-based employees engaged in similar conduct but were not disciplined by their respective supervisors. Accordingly, Complainant has not established that the Agency’s legitimate, nondiscriminatory reasons for issuing him a five-day suspension were pretextual. Complainant alleged that he was retaliated against with respect to his FY 2019 performance evaluation. The Agency’s legitimate, nondiscriminatory explanation for the FY 2019 rating is that Complainant’s performance was not as good as in prior years. 2020004266 8 Specifically, S1 stated that during FY 2019, Complainant failed to order new furniture on time, had an issue with distributing access codes to employees, did not complete closure-related work in Rapid City, and failed to properly document his work by creating tickets. Complainant generally asserts that the reference to door access codes is pretextual, but he does not explain or provide evidence establishing pretext. Therefore, we find that Complainant has not established that the proffered reason was a pretext by preponderant evidence. Harassment To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the 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). Complainant alleges he was subjected to a hostile work environment based on disability when the ASAC made purportedly false statements and reported his conduct, leading to the OIG PID investigation. We find that Complainant has not established that the alleged harassment was based on his disability. Complainant contends that the ASAC was motivated by disability-based animus because, when Complainant disclosed his PTSD to the ASAC several years earlier, she made a comment questioning the legitimacy of PTSD. However, the ASAC denied that Complainant disclosed his PTSD diagnosis and providing the alleged response. Moreover, the ASAC explained that she reported Complainant’s conduct because of concerns about his work ethic and potential fraud. Accordingly, we find that Complainant has not established, by a preponderance of the evidence, that the ASAC was aware of Complainant’s disability, made the alleged comment questioning his disability, or engaged in harassment based on Complainant’s protected classes. Denial of Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he 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). 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). 2020004266 9 “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). Complainant alleged that he was denied a reasonable accommodation when he was not permitted to work a flexible schedule or telework. The Agency’s final decision found that Complainant established the first two prongs of a prima facie case. Accordingly, we will consider whether Complainant established that he was denied a reasonable accommodation. Until June 2019, Complainant teleworked and worked a flexible schedule, generally arriving at 6:00 a.m. and leaving at 2:30 p.m. However, S1 and S2 heard complaints that Complainant was not available to address facilities issues in the afternoon and that he was difficult to reach when he was teleworking. Consequently, on June 6, 2019, S1 directed Complainant to work a set schedule in the office from 8:00 a.m. to 4:30 p.m. On July 16, 2019, the Agency offered Complainant a gliding schedule as a reasonable accommodation, which allowed him to arrive between 7:30 and 8:30 a.m. and depart between 4:00 and 5:00 p.m., as well as take leave when he was unable to work the core hours (8:30 a.m. and 4 p.m.). While Complainant clearly preferred an earlier flexible schedule, arguing that the gliding schedule did not address his afternoon fatigue and his early arrival ensured that the lights and heat were on, the Agency did offer him a reasonable accommodation. The gliding schedule with the option to take leave during core hours was an effective accommodation because it enabled Complainant to complete the essential functions of his position. While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Lynette B. v. Dep’t. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Upon review, Complainant has not established that he was denied a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision 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. 2020004266 10 If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 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. 2020004266 11 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 December 8, 2021 Date