[Redacted], Hiroko V., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2019002317 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hiroko V.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2019002317 Hearing No. 451-2017-0036X Agency No. ARFTSAM16JAN00156 DECISION On January 3, 2019, 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 December 3, 2018, 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., 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 order. ISSUES PRESENTED The issues presented are whether Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination based on her disability and in reprisal for her protected EEO activity; and whether the Equal Employment Opportunity Commission’s Administrative Judge (AJ) erred in finding that, while Complainant was denied a reasonable accommodation, she was not entitled to compensatory damages. 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. 2019002317 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chemist, GS-09, at the Agency’s Brooke Army Medical Center in Fort Sam Houston, Texas. On January 20, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 3, 2016, and amended on August 9, 2016, Complainant filed an EEO complaint alleging the following two claims. Claim 1: The Agency discriminated against Complainant on the bases of disability (severe facial flushing) when: a) on January 25, 2016, Complainant was not selected for a GS-1320-11, Chemist position; b) on January 12, 2016, Complainant was denied the reasonable accommodation of a phone interview for a GS-1320-11 Chemist position; c) on April 10, 2015, Complainant was not selected for a GS-1320-11 Chemist position; and d) in January 2015, the Responsible Management Official (RMO) denied Complainant the reasonable accommodation of a phone interview for a GS-1320- 11 Chemist position; Claim 2: The Agency retaliated against Complainant when: a) from February 5, 2016, to present (August 9, 2016), her reasonable accommodations were not provided; and b) on July 16, 2016, Complainant was not selected for a GS-1320-11 Chemist position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on September 18, 2018, and issued a decision on October 16, 2018. Regarding claim 1(a), the AJ determined that Complainant was a highly qualified applicant, but that she could not demonstrate that her credentials were so plainly superior to the Selectee's that discrimination could be inferred. The AJ noted Complainant’s allegation that she was inappropriately denied a phone interview (claim 1(b)) that directly impacted her ability to be interviewed and possibly selected for the position in claim 1(a). 2019002317 3 The AJ found that the interview process was central to the selection process, and that the selecting officials determined that the selectee had performed very well during his interview and had the qualities they were seeking in an applicant. The AJ noted that, while Complainant did not get a chance to be interviewed by phone, she had declined to be interviewed when offered an alternative to a normal interview setting. Thus, the AJ determined that, absent direct evidence that Complainant was not selected for the position based on her disability, the preponderance of the evidence did not support the assertion that pretext existed. Regarding claim 1(b), the AJ determined that Complainant was an individual with a disability as she had a skin condition with severe facial flushing that resulted in her need to avoid heat and claustrophobic situations, such as crowds. The AJ also determined that Complainant was a qualified individual with a disability as she was able to do her job with or without a reasonable accommodation. The AJ further found that the Agency failed to provide a reasonable accommodation regarding Complainant’s request for a phone interview. Here, RMO denied Complainant’s request for a phone interview because RMO asserted that she did not understand Complainant’s phone conversation regarding the matter as a request for an accommodation for the application process. The AJ rejected RMO’s argument. The AJ found that RMO refused Complainant a phone interview solely because she thought it should not be done because management generally placed an emphasis on the in-person interview process, even though management had interviewed other applicants in the past via telephone. The AJ found RMO’s actions impeded access to the application process, and as such, Complainant had been denied a reasonable accommodation. In terms of liability for claim 1(b), the AJ found that Complainant was not entitled to compensatory damages because, even though the Agency had denied her request for a phone interview, the Agency had made a good faith effort to accommodate Complainant short of doing a telephonic interview. Specifically, RMO offered to have the interview in a larger room, perhaps with dimmer lights, and with Complainant moved farther away from the interviewers. The AJ found that RMO put forth a good faith effort to accommodate Complainant and she was therefore not entitled to compensatory damages. The AJ, however, ordered the Agency to post a notice and to provide relevant training to RMO. Regarding claim 2(a), Complainant requested alternative means of travel, other than by plane, as a reasonable accommodation for trainings she would need to participate in. The AJ determined that Complainant was not denied a reasonable accommodation. The AJ acknowledged that there was a delay in the processing of Complainant’s request for reasonable accommodation. However, the AJ found that the delay was not intentional or due to Complainant’s disability or in retaliation. Instead, the AJ found that the delay was due to the Disability Program Manager’s diagnosis with a terminal condition. The AJ also noted that, during this delayed period, Complainant could use preexisting accommodations that allowed her to travel without having to fly. 2019002317 4 Regarding claim 2(b), the AJ determined that the record adequately compared the qualifications of the selectee to Complainant’s and again found that she did not demonstrate that she was so better qualified than the selectee that discrimination could be inferred. Finally, regarding claims 1(c) and 1(d), the AJ dismissed the claims for untimely EEO Counselor contact. The AJ noted that the incidents occurred in January and April of 2015 and, because they were discrete events, Complainant was obligated to make timely EEO Counselor contact. Based on the record, the AJ found in favor of the Agency on claims 1(a), 2(a), and, 2(b). The AJ dismissed claims 1(c) and 1(d) for untimely EEO Counselor contact. The AJ found that the Agency failed to provide a reasonable accommodation to Complainant as alleged in claim 1(b), but that management had demonstrated a good faith effort to provide an alternative accommodation. Accordingly, Complainant was not entitled to compensatory damages. In connection with claim 1(b), the AJ ordered the Agency to provide RMO with a minimum of two (2) hours of Rehabilitation Act training, with a focus on reasonable accommodation processing for managers. Secondly, the AJ ordered the Agency to post a notice at its Food Analysis and Diagnostic Laboratory, for at least sixty (60) days, that stated that the Agency was found to have violated the Rehabilitation Act. On December 3, 2018, the Agency issued its final order fully implementing the AJ’s findings and order. CONTENTIONS ON APPEAL On appeal, Complainant contends, among other things, that the AJ erred in finding that claims 1(c) and 1(d) were untimely. Complainant argues that, even though she had relevant EEO training, she had no reason to suspect discrimination when the incidents occurred in 2015. Further, Complainant contends that the AJ erred regarding the non-selections. Complainant asserts that she was better qualified in both instances. For example, regarding the non-selection in claim 1(a), Complainant asserts that she had seven years seniority over the selectee; that she had a Master’s degree in life sciences, while the selectee had a Bachelor’s degree in physical sciences; that the selectee had minimal work experience; and that she was overall better qualified. Complainant also argues that her reasonable accommodation request to interview by phone was inappropriately denied and that she was entitled to compensatory damages, and that her other request, to not travel by plane, was significantly and intentionally delayed. Additionally, Complainant asserts that the investigation was poorly conducted and resulted in the AJ not finding in her favor. On January 28, 2019, the Agency submitted a detailed appellate brief wherein it requests that its final order implementing the AJ’s decision and order be affirmed. 2019002317 5 Subsequently, on August 26, 2020, the Agency requested that the Commission dismiss Complainant’s appeal as untimely.2 The Agency asserts that Complainant’s appeal was filed on August 24, 2020, making it over 20 months late. The Agency asserts that Complainant fails to provide any statements as to why her appeal should be subject to waiver, estoppel, or equitable tolling, and therefore should be dismissed as untimely. On September 10, 2020, Complainant sent an email to the Commission, refuting the Agency’s assertion that she had submitted an untimely appeal. Complainant states that she received the Agency’s final decision on December 3, 2018, and timely filed her appeal on January 3, 2019. Complainant further notes that she has a receipt for the delivery of her appeal, marking the Agency’s receipt as January 8, 2019. STANDARD OF REVIEW 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 EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Complaints Processing We note that Complainant raised concerns with the processing of her complaint. Complainant claims on appeal that the investigation was inadequate, alleging that important documents were left out of the investigation and that the claims were sometimes inaccurately referenced to during the investigation, causing unnecessary confusion. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. 2 The Agency failed to note its prior acknowledgment that Complainant’s appeal was timely submitted on January 3, 2019, as it previously did so in its January 28, 2019, response to Complainant’s timely appeal. 2019002317 6 Timeliness of Appeal As a preliminary matter, we note that this appeal was timely filed. It appears that the Agency submitted its August 26, 2020, statement without realizing it had previously submitted an appellate response on January 28, 2019, in which it had acknowledged Complainant’s appeal as timely filed. Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, in relevant part, that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in § 1614.105. Here, the AJ found that claims 1(c) and 1(d) should be dismissed because Complainant did not contact an EEO Counselor until more than 45 days after the allegedly discriminatory actions. We agree with the AJ’s determination and find that these claims are untimely as the incidents complained of occurred in January and April 2015. Yet, Complainant did not contact an EEO Counselor until January 20, 2016; this was well after the 45-day limitation period. Here, Complainant has not asserted that she was unaware of the EEO complaint process, or the necessity for contacting an Agency EEO counselor within 45-days of the allegedly discriminatory events. Instead, Complainant argues that she could not have reasonably developed suspicions at the time of the events. A review of the record demonstrates that Complainant's reasonable accommodation request was denied by RMO in January 2015 and that Complainant was aware that she was not selected for the GS-1320-11 Chemist position on April 10, 2015. In both instances, even if Complainant did not have evidence of discrimination, she had the opportunity to investigate the reason for her non-selection and to question the reasonable accommodation denial. Moreover, the record shows that Complainant had EEO training and was aware of the relevant time limitations. The Commission has adopted a “reasonable suspicion†standard (as opposed to a “supportive facts†standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, Complainant waited past reasonable suspicion to seek counseling. We therefore AFFIRM the Agency's implementation of the AJ’s order dismissing claims 1(c) and 1(d) pursuant to 29 C.F.R. §1614.105(a)(2). 2019002317 7 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, 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. Tex. 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). 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). Even if we assume, arguendo, that Complainant established a prima facie case of discrimination and reprisal, the record supports the AJ’s decision finding that the Agency has articulated legitimate, nondiscriminatory reasons for its actions with regard to claims 1(a), 2(a) and 2(b). The Agency explained that, regarding claims 1(a) and 2(b), Complainant was not selected for the chemist positions because the selectees had the qualifications the Agency was seeking, while Complainant did not. Complainant bears the ultimate responsibility to demonstrate by a preponderance of the evidence that the Agency’s reasons were pretext for discrimination. In non-selection cases such as the one now before us, Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectee. Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Here, Complainant listed her work history and other qualifications that she asserted made her a superior candidate. 2019002317 8 Complainant compared her skills and qualifications to those of the selectees and asserted that she was clearly superior in both instances. Regarding the selection processes, the Commission has long held that an employer has the discretion to choose among equally qualified candidates. Complainant v. Dept. of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). Absent proof of a demonstrably discriminatory motive, EEOC will not second-guess an agency's personnel decision. See Burdine, 450 U.S. at 259. EEOC simply has neither the authority nor the capacity to stand as the super-personnel department for the agency. Only personnel decisions that are idiosyncratic or suspect are subject to heightened scrutiny because deviations from standard procedures without explanation or justification are sufficient to support an inference of pretext. See Andre v. Dep't of Def., EEOC Appeal No. 01994562 (Feb. 22, 2002); Hovey v. Dep't of Housing and Urban Dev., EEOC Appeal No. 01973965 (Aug. 31, 2000). However, we see no such suspect action here. We agree with the AJ that Complainant did not demonstrate that the Agency’s reasons were pretext for discrimination. Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. 29 U.S.C. § 791 et seq.; see also 29 C.F.R. part 1630. During the hearing, the AJ issued his determination that Complainant was a qualified individual with a disability, that she met the initial requirements to be considered for the position, and that the Agency failed to provide a reasonable accommodation. The parties did not contest this assessment. Regarding claim 1(b), the AJ determined that Complainant was denied a reasonable accommodation with respect to her request for a telephone interview. Here, the Agency adopted the AJ’s determination. The AJ noted that evidence clearly demonstrated that the Agency had provided telephone interviews in the past, and yet, Complainant’s request was denied. The AJ acknowledged RMO’s argument that she did not believe that Complainant was asking for an accommodation when she requested a telephone interview but found it unpersuasive. The AJ also acknowledge that the selecting officials emphasized the desire for in-person interviews because they felt it would help them better gauge a suitable candidate. With that, the AJ noted that RMO provided Complainant an alternative to a normal interview setting, short of an interview by phone. Specifically, RMO offered a larger room, the possibility to dim the lights, and to sit farther away than normal from the interviewers. Considering this, we find that the record supports the AJ’s findings that while RMO had denied Complainant the reasonable accommodation of the phone interview, RMO had, in good faith, offered Complainant an alternative to the accommodation that she requested (the large room, distant seating, and darkened lights). We agree with the AJ that Complainant refused the Agency’s good faith attempt at providing her with an alternative accommodation and, therefore, although she demonstrated that she was denied a reasonable accommodation, she was not entitled to compensatory damages. 42 U.S.C. § 1981a(a)(3); Morris v. Dep’t of Def., EEOC 2019002317 9 Appeal No. 01962984 n.3 (October 1, 1998); Gunn v. U.S. Postal Serv., EEOC Appeal No. 0120053293 (June 15, 2007). Finally, regarding claim 2(a), the Agency explained that Complainant’s request for an accommodation to not travel by air was delayed because the Disability Program Manager was ill. The record demonstrated, however, that Complainant was allowed to travel by other means. Although it was not the accommodation of her choice, it was effective. Despite her disapproval, the Agency is not required to provide Complainant with the accommodation of her choice; it can select among different accommodations as long as its selection is effective. Kelley v. Soc. Sec. Admin., EEOC Appeal No. 0120080209 (May 18, 2010); 29 C.F.R. § 1630.2(o); see EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) at 17. Accordingly, we agree with the AJ that Complainant was not denied a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s Order and decision as detailed below. ORDER The Agency is ordered to take the following remedial actions regarding claim 1(b): 1. Within ninety (90) calendar days from the date this decision is issued, the Agency shall provide two (2) hours of training to RMO with a focus on reasonable accommodation processing for managers. 2. Within sixty (60) calendar days from the date this decision is issued, the Agency shall consider taking disciplinary action against RMO. The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. 3. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.†The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.†The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, and evidence that the corrective action has been implemented. 2019002317 10 POSTING ORDER (G0617) The Agency is ordered to post at its Office of Food Analysis and Diagnostic Laboratory in Fort Sam Houston, Texas, copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,†within 10 calendar days of the expiration of the posting period. The report must be in digital format, and, must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.†29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2019002317 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2019002317 12 COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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, Director Office of Federal Operations May 24, 2021 Date Copy with citationCopy as parenthetical citation