[Redacted], Hulda W., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2021002418 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hulda W.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 2021002418 Hearing No. 570202001071X Agency No. MINT191521F DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a March 25, 2021 final agency decision (“FAD”), where the Agency determined that it was in compliance with the terms of a settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a Senior Advisor, GS-15, Human Capital Directorate, at the United States Mint (“the Agency” or “Mint”), in Washington, D.C. On December 30, 2019, Complainant filed a formal EEO complaint alleging she was subjected to a hostile work environment by the Agency in retaliation for her prior protected activity. Complainant explains that in 2018 and 2019, Mint leadership were sent multiple anonymous letters and emails asking them to address “a racially divisive culture within the Agency.” 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021002418 2 Complainant, whose race is African American, states that although she did not send the letters, she found, based on personal observations, that the anonymous allegations appeared credible. Complainant alleges that management believed she was responsible for the anonymous letters, and that this misperception was at least a partial basis for the alleged retaliation in her EEO complaint. The Agency investigated the complaint, provided Complainant with a copy of the report of investigation, and notice of her right to request a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a hearing. Before proceeding with the hearing, the parties agreed to participate in Alternative Dispute Resolution (“ADR”) facilitated by the AJ. Around the same time, in or about June 2020, Complainant said she felt that it was clear that Mint leadership would not properly address the anonymous allegations, so she drafted a letter to the Agency’s Secretary, which was copied to the Congressional Black Caucus. The letter thoroughly “outline[d] the concerns about racial injustice and disparate treatment at the Mint.” One of the few individuals singled out by name in the letter drafted by Complainant was the Chief of the Office of Diversity Management and Civil Rights (“DMCR”): 2 [f]orgive our cynicism, but [the DMCR Chief] has been made keenly aware of the oppressive environment at the Mint. [The DMCR Chief] has been and remains complicit in the behaviors of Mint leadership; [the DMCR Chief] knows that people of color have been subjugated to systematic racism at the Mint for many years and from our vantage point, [the DMCR Chief] has done nothing to stop it. A total of six employees, including Complainant, signed the letter, which clarified the “number of signatures below is not indicative of the number of those interested in signing; instead a reflection of the bullying and harassment that intimates and silences many.” The letter alleged that in addition to a hostile work environment for people of color, a culture of retaliation existed at the Agency, including, but not limited to, initiating Office of the Inspector General (“OIG”) investigations targeting employees of color who raised allegations of discrimination. The letter further alleged that at a minimum, Agency counsel was complacent with respect to management’s alleged perpetuation of racial discrimination and retaliation. Over the summer of 2020, per the letter’s request, Agency leadership arranged multiple listening sessions with employees, which Complainant attended, serving as the primary spokesperson for a group of five Black employees. She also led the employee listening session, which addressed what she describes as “the toxic and racially charged environment at the Mint.” Then, on September 19, 2020, the letter was published in the Wall Street Journal. 2 The DMCR Chief is also identified in the record as the EO Director, Office of Civil Rights and Diversity, and Chief of the Diversity and Civil Rights at Mint. 2021002418 3 Individual names were redacted, but Mint leadership and Agency counsel were identified as perpetrators of the hostile work environment. The story was circulated among multiple media outlets and garnered a public response from the Agency Secretary. Complainant testifies that she was not responsible for leaking the letter, however, her then-supervisors (retired) allegedly blamed Complainant for the leak, and “upped the ante” regarding harassment and retaliation. With regard to her own EEO complaint, on August 18, 2020, the parties resolved the matter through ADR, entering into a negotiated settlement Agreement (“the Agreement”). Among other things, the Agency agreed to pay Complainant $25,000, expunge a suspension from her record, and restore 150 hours of leave, while Complainant withdrew her hearing request and released the Agency from any other claims arising from her employment. At issue here is Term 5 of the Agreement, which states: NON-DISCLOSURE. The parties agree to keep the nature and terms of this Agreement confidential. The nature and terms of this Agreement may not be disclosed to any person or entity beyond: (a) the persons signing below; (b) Agency officials who have a need to know for internal Agency business, as necessary to implement the terms of this Agreement, and/or as required by law; (c) third parties as ordered by a court or administrative body of competent jurisdiction, and/or (d) Employee’s immediate family, tax advisor(s), accountant(s), and counsel. In response to inquiries from persons other than those listed in this paragraph of the Agreement, the parties may state that the matter was resolved to the mutual satisfaction of the parties. On December 7, 2020, a copy of Complainant’s settlement Agreement was sent to a number of Agency employees as an attachment to an anonymous email. The subject line of the email was: “Self-Serving Deception To Her Own Kind.” The email address originated from a private account, with the sender’s name listed as “John Doe.” Along with providing a copy of the settlement Agreement in its entirety, the email stated: [Complainant] misled a group of naïve employees to put their names on a letter putting targets on their backs. What the trusting group didn’t know was that behind the scene, [Complainant] was negotiating her own payout. Once she got paid, she stopped meeting with us and took herself out of the conversation of a Class Action Lawsuit that tricked several BLACK employees to become targets. The letter was a scare tactic on management and legal that we fell for and worked for her and only her. She took it ALL the way by even contacting the Wall Street Journal. You should let those employees know what they signed up for. I can say this in the open, since I am no longer a Mint employee. On December 11, 2020, Complainant became aware of the email, and immediately emailed an official at OIG, requesting an immediate investigation, of the anonymous email. 2021002418 4 She also emailed her supervisor (“S1”),3 requesting his assistance contacting the Agency’s Office of Information Technology (“OIT”) to quarantine the email and minimize access by individuals without a “need to know.” Complainant copied the DMCR Chief and Agency legal counsel on her email to S1. Emails in the record reflect that S1 directly contacted the Information Security Division Operations (“SDO”) Branch Chief within OIT regarding the email and attached Agreement. An email from the SDO Branch Chief states: “Team, Please locate and quarantine the email described below, and capture how it’s been distributed within Mint.” Complainant notified the SDO Branch Chief that, “OIG has also requested that we preserve all records regarding the receipt, response to or forwarding of the email and attachment within the Mint IT system as the records are relevant to the pending investigation.” It appears that the anonymous email was contained to the extent possible within hours of Complainant notifying S1. However, the record is devoid of information regarding the OIG investigation into its source. On December 14, 2020, Complainant contacted the Agency’s EEO program and alleged that the December 7, 2020 anonymous email was part of a campaign of ongoing harassment by Mint leadership. The Agency accepted the allegation as a new claim of retaliatory harassment on December 30, 2020. However, on January 29, 2021, the EEO Investigator removed the December 7, 2020 anonymous email from Complainant’s harassment claim, determining, after requesting clarification from Complainant, that it would be more properly addressed as a breach allegation. Significantly, Complainant’s January 29, 2021 clarification email claimed that the Agency either informed or made the Agreement available to other individuals who did not have a “need to know.” She also alleged breach by claiming that the Agency would not perform its obligation to expunge her suspension because it claimed a “requirement directing that I must leave the Mint in order to have the suspension removed from my record.” After conducting an inquiry into the breach claim, the Agency issued a final decision determining that while the anonymous email violated the confidentiality clause in Term 5 of the Agreement, the Agency had “complied with all negotiated terms,” and there was no evidence that the breach originated with the Agency. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). 3 S1 began working at the Agency in April 2020, after the relevant time frame for the underlying complaint. The supervisors named in Complainant’s underlying complaint had since retired. 2021002418 5 The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract’s construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the “plain meaning rule.” See Hyon O. v. United States Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). Under 29 C.F.R. 1614.504(b), after notification by a complainant of alleged noncompliance with a settlement agreement, that agency should resolve the matter and respond to the complainant. The Commission has interpreted this provision as allowing the agency the opportunity to cure any breach that may have occurred. See Covington v. United States Postal Serv., EEOC Appeal No. 01913211 (Sept. 30, 1991). In the instant case, the Agency reasoned that it cured the breach to the extent possible, citing the OIG investigation, and the efforts of OIT and Complainant’s supervisor to prevent further dissemination of the anonymous email, then further determined that there was no equitable remedy available to Complainant as there is no specific performance that would undo the harm caused by this particular breach. Where, as here, a breach is found and an order of specific performance is not possible, the only remedial relief available is reinstatement of the underlying complaint at the point where processing ceased. Id. However, upon reinstatement, the parties must be returned to the status quo ante at the time that the parties entered into the settlement agreement, which would require that the complainant return any benefits received pursuant to the settlement agreement. See, e.g. Amour v. Dep’t of Def., EEOC Appeal No. 01965593 (Jun. 24, 1997), Komiskev v. Dep’t of the Army, EEOC Appeal No. 0119955696 (Sept. 5, 1996). Complainant repeatedly states in the record that she seeks reinstatement of her underlying complaint. The record is insufficient to allow the Commission to ascertain whether a breach occurred. The Commission has held that the "agency has the burden of providing evidence and/or proof to support its final decisions." O’Malley v. United States Postal Serv., EEOC Appeal No. 0120064540 (Mar. 12, 2008) citing Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). Thus, a FAD addressing a complainant’s allegation of breach must be supported by persuasive independent evidence in the record. O’Malley. Such evidence must address, in detail, the complainant’s specific allegations, and explain why and how the agency reached its conclusion that no breach occurred. Id.; Ziton v. United States Postal Serv., EEOC Appeal No. 0120103435 (May 16, 2012) (breach claim remanded for supplemental investigation where the agency did not provide any documentary evidence to support its finding that no breach occurred and failed to address the complainant’s specific arguments). 2021002418 6 The Commission has also required an agency to submit supporting evidence with respect to how it performs its obligations under a settlement Agreement. See, e.g. Ruiz v. United States Postal Serv., EEOC Appeal No. Appeal No. 0120091682 (Jun. 9, 2010) (breach claim remanded for supplemental investigation where, among other things, the agency failed to explain why it was instructing the complainant to provide documentation before it would comply with a provision requiring it to restore the complainant’s leave). Evidence that would allow for a determination on whether a breach occurred may include, but is not limited to, affidavits from relevant personnel who can address the breach allegation in detail, and clearly explain how the agency determined that it was not in breach. Id. Here, the FAD fails to fully address the allegations of breach that Complainant raised in her January 29, 2021 email to the EEO Investigator. First, the Agency did not explain Complainant’s allegation that it placed conditions (that she leave the Mint) that were not articulated in the Agreement on the expungement of her suspension. Second, the Agency failed to respond to Complainant’s assertion that it breached Term 5, regardless of the anonymous nature of the email, by allegedly making the Agreement available to individuals who did not have a “need to know.” The record shows that neither party disputes that when applying the plain meaning rule to Term 5, the December 7, 2020 anonymous email evinces a breach of the settlement agreement. The Agency contends that it only provided access to the Agreement to “individuals who were either involved in resolving the case or implementing the terms of the Agreement.” On appeal, the Agency specified that the Chief Counsel and Deputy Chief Counsel (“DCC”) “were the attorneys in the Office of Chief Counsel with access to the Agreement,” and DCC provided a copy of the Agreement to the Chief Human Capital Officer (“CHCO”) for the purpose of authorizing payment and the re-crediting Complainant’s leave. In turn, CHCO disclosed the Agreement to employees within the Administrative Resources Center (“ARC”), the office responsible for such actions. Complainant, however, has contended that settlement agreement payments are not processed through the CHCO or ARC, but through the Office of Diversity Management and Civil Rights (“DMCR”), and the Office of the Chief Financial Officer (“CFO”) including the Lead Systems Accountant (Branch Chief for the Reporting and Control Branch), along with members of his team. Yet, the Agency failed to identify the DMCR or Office of the CFO as “need to know” individuals with access to the Agreement. Given her position within the Human Capital Directorate, we find Complainant’s argument sufficiently persuasive to indicate that the Agency’s list of individuals with access to the Agreement is incomplete. The record does not contain sufficient documentation to support that the “need to know” individuals, who were identified by the Agency as having received access to the Agreement, did not make the Agreement accessible to others. DMCR, which was responsible for responding to Complainant’s breach allegation, was informed by Complainant on or about December 11, 2020, of the individual she contacted at OIG to investigate the anonymous email, and of efforts by her supervisor and OIT to mitigate and prevent further distribution of the email. 2021002418 7 In this instance, the Agency provides copies of emails demonstrating that prompt action was taken to quarantine and remove the email from inboxes of recipients. Although it played no role in either effort, DMCR cites these actions as the Agency’s efforts to cure Complainant’s breach allegation. Upon review, the record is unclear whether or not the Agency took sufficient action to investigate Complainant’s breach allegations. Even though the identity of “John Doe” was critical to the matter of Agency liability for either a harassment complaint or a breach claim, there is no indication that DMCR attempted to obtain this information. Rather, the FAD appears to conclude that the fact that DMCR had not heard from OIG concerning the results of its investigation (if one actually occurred) is evidence that the originator of the breach is unknown, and therefore cannot be attributed to the Agency. The actual results of any investigation into this matter is relevant to the adjudication of Complainant’s breach claims. The FAD on Complainant’s breach claim was improperly issued. Pursuant to 29 C.F.R. § 1614.108(b), agencies are required to develop an impartial factual record in accordance with the instructions contained in the EEOC Management Directive for 29 C.F.R. Part 1614 (Aug. 5. 2015) (“EEO MD-110”). Therefore, agencies must develop procedures for investigating complaints in which it is perceived that the EEO office would have an actual or perceived conflict of interest. Id., see also, e.g. Rucker v. Dep’t. of the Treas., EEOC Appeal No. 0120082225 (Feb. 4, 2011) (stating that an agency “should be careful to avoid even the appearance that it is interfering with the EEO process”). It is the Agency EEO Director’s responsibility to ensure that individual complaints are properly and thoroughly investigated. EEO MD-110 Ch. XI § 3(a). The EEO Director also must ensure that there is no conflict of interest or appearance of conflict of interest in the investigation of complaints. Id. Where the responding management official in a complaint of discrimination is the EEO Director, or another supervisor in the EEO office, a real or perceived conflict may exist because the interests of the responding official would challenge the objectivity or perceived objectivity of the EEO office. EEO MD-110 Ch IV § C(2). This matter must be addressed through procedures designed to safeguard the integrity of the EEO complaint process. Id. For example, when an EEO complaint alleges that the EEO Director or a member of his/her immediate staff discriminated, the EEO Director shall recuse himself/herself and retain a third party to conduct the counseling, and investigation and draft the final agency decision for the agency head to issue. Id. The EEO Director for the Agency is the DMCR Chief. Not only did Complainant publicly criticize the DMCR Chief in scathing, unambiguous terms, the letter in which she did this was the protected EEO activity referenced in the EEO complaint that the Agreement was intended to resolve. Likewise, Agency counsel, which Complainant also lambasted in the letter, was involved in the handling of the instant complaint. Despite our well-established guidance, Complainant’s harassment and breach claims were investigated by the DMCR, reviewed by Agency Counsel, and, the DMCR Chief issued the FAD for Complainant’s breach claim. 2021002418 8 We also note that Complainant’s letter alleges that the OIG was essentially a tool used by management to disproportionately penalize employees of color, yet neither the OIG investigation, nor the DMCR inquiry, was removed to a neutral office. Confidentiality and Nondisclosure Clauses are critical to ADR and material to the Agreement. As a final matter, as the Agreement at issue is the product of ADR, we remind the Agency that confidentiality is considered one of the "Core Principles" of ADR. "Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." EEO MD-110, Ch. 3 § II.a.3 citing the Administrative Dispute Resolution Act of 1996 (“ADRA”) codified as 5 U.S.C. §574, Nakesha D. v. Dep’t of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016). Notwithstanding its failure to address Complainant’s other breach allegations, the Agency’s finding that “the disclosure was not a material breach of the settlement agreement regardless of the identity of the anonymous e-mailer,” reveals a deep misunderstanding of the significance of a nondisclosure clause with respect to confidentiality and the ADR process. Moreover, when applying the “plain meaning rule,” the Agency, as a party to the Agreement, is bound by the terms in the nondisclosure clause, as they are stated in the Agreement. In this case, given the background and basis of Complainant’s underlying EEO claim, it should be self-evident to the Agency that the nondisclosure clause was in itself a form of consideration, thereby making it a term material to the Agreement. The Agency’s alternate reasoning is essentially an assertion of its willingness to selectively apply the plain meaning rule. The Agency reasoned that because “the negotiated terms of the Agreement include substantial gain for [Complainant] and equitable gain for the Agency, and the non-disclosure clause does not appear to be a material term which goes to the essence of the contract,” it would not be “appropriate to void a good faith contract for which both parties complied with all material negotiated terms.” Assuming, arguendo, that the record was sufficiently developed to find that the Agency caused a breach of the Agreement, such logic would prevent Complainant from exercising her right to reinstate her underlying EEO complaint. Selective application of well-established rules of contract interpretation could also evince bad faith, and as a broader consequence, could chill Agency employees’ willingness to engage in ADR. CONCLUSION The Agency's determination that it did not breach the settlement agreement is VACATED. This matter is hereby REMANDED to the Agency for a supplementation of the record and further processing in accordance with this decision and the ORDER below. 2021002418 9 ORDER (C0618) 1. Within forty-five (45) calendar days of this Decision, the Agency shall supplement the record with sufficient evidence to allow for a determination on whether the Agency complied with the Term 5 of the August 18, 2020 Agreement. a. Documentary evidence shall address, in detail, Complainant’s allegations that individuals who were not “need to know” were directly or indirectly informed of and/or provided with access to the Agreement, including evidence of whether any precautionary measures were taken to prevent access by individuals without a “need to know,” b. Documentary evidence shall include sworn affidavits from individuals with access to the Agreement on or prior to December 7, 2020, a copy of the OIG investigative report, and any other documentation, such as email communications, that would address Complainant’s allegation that the December 7, 2020 anonymous email was part of a campaign of ongoing harassment by Mint Leadership, c. Documentary evidence shall also address Complainant’s January 29, 2021 allegation that the Agency breached the Agreement by adding a “requirement directing that [Complainant] must leave the Mint in order to have the suspension removed from my record,” and, d. Complainant must be provided a copy of the supplemented record and be afforded the opportunity to submit a statement and/or other evidence to be included for consideration in the supplemented record. 2. Within sixty (60) calendar days of this Decision, the Agency shall issue a new determination, based on the supplemented record, that fully explains whether it breached the August 18, 2020 Agreement. The Agency’s Decision shall provide Complainant with appeal rights to this Commission. 3. In the event that the Agency finds it breached the Agreement, the Agency shall provide Complainant with the opportunity to reinstate her complaint at the point in which processing ceased (i.e. submit the matter to the appropriate EEOC Field Office for a hearing). If her complaint is reinstated, the Agency shall assess whether Complainant has any open EEO actions, such as Agency Case No. MINT210157F, that are sufficiently like or related to warrant consolidation. Complainant may also submit a motion to consolidate to the AJ. If Complainant elects to reinstate her underlying complaint, she is advised that she will have to return to the “status quo ante” by returning any benefits she has already incurred under the terms of the Agreement. 2021002418 10 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include a copy of the Agency’s new determination and be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. 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. 2021002418 11 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint 2021002418 12 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 November 8, 2021 Date