U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janay K.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2019005579 Hearing No. 520-2018-00301X Agency No. HS-TSA-01595-2017 DECISION On August 14, 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 July 18, 2019, final decision 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED Whether the Final Agency Decision (FAD) correctly determined that Complainant was not discriminated against and subjected to harassment based on sex (female), age (47), and reprisal (prior EEO activity) regarding a non-disciplinary suspension, reprimand, and alleged involuntary reassignment. 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. 2019005579 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector (TSI), SV-1801-H Band at the Agency’s Buffalo Niagara International Airport (BUF) in Buffalo, New York. On September 8, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (47), and reprisal (prior EEO activity) as evidenced by the nine events that form the basis of Complainant’s complaint. Record evidence indicated that Complainant’s prior EEO activity was initiated in 2011, about five to six years before the incidents alleged in the instant complaint. The record also indicated that the responsible Management Officials (RMOs) in this complaint had no knowledge of Complainant’s prior protected activity. Claim 1: On or about December 15, 2016, Complainant was suspended from conducting all inspections. Complainant alleged that the Supervisory Transportation Security Inspector (STSI) told her she might be suspended from Corporation X inspections; and that she was subsequently suspended. Complainant stated her belief that STSI's statement was based on her protected classes because the Assistant Federal Security Director-Inspections (AFSD-I), a 58 year-old female, was aware of Complainant’s prior EEO activity and commented that the job did not suit Complainant. Complainant did not explain how AFSD-I's knowledge of Complainant’s prior protected activity and alleged comment influenced the statement made by STSI or Complainant’s subsequent suspension. STSI indicated that Complainant had been informed about the alleged suspension in December 2016, but she was not suspended at the time. AFSD-I asserted that STSI and the SAA decided to suspend Complainant from Corporation X inspections out of an abundance of caution to avoid the appearance of a financial conflict of interest. AFSD-I explained that in mid-2016, Complainant reported that her husband received a promotion, and the SAA tried to determine whether Complainant’s husband’s new pay structure would include bonuses based on company profitability. AFSD-I explained that Complainant received approval to conduct Corporation X inspections despite her husband working there but that Complainant was told she would have to report any changes in her husband’s job status. AFSD-I stated that Complainant could not answer the SAA's questions; hence the action taken by STSI. Included in the record is a letter issued to Complainant in May 2015, which corroborated AFSD- I's statement that Complainant was advised to report any changes in her husband’s job status. In rebuttal, Complainant acknowledged that she was not suspended in December 2016, and that AFSD-I commented that it was only an inquiry. 2019005579 3 Claim 2: On or about January 24, 2017, AFSD-I told Complainant that she would be a better fit in the Human Resources (HR) office. Complainant indicated that the comment attributed to AFSD-I in Claim 1 that the job as Surface Inspector did not suit Complainant was made during a private lunch. Complainant alleged that AFSD-I also alluded to her looks and age. Complainant did not describe how or in what context AFSD-I alluded to her protected classes. She only stated that she did not know why AFSD-I made the comment. AFSD-I denied making the alleged comments and allusions. She asserted that Complainant expressed an interest in becoming an AFSD in HR. AFSD-I explained that she had discussions with each of the TSIs to assess the work environment and discuss where they saw themselves in two years. AFSD-I asserted that during her discussion with Complainant, she noted that Complainant had an impressive background and had many career options; and that Complainant thanked her for their discussion. A Lead Transportation Security Inspector (LTSI1) provided witness testimony, stating that Complainant told him about the alleged comments; and that Complainant informed him that she felt harassed. Claim 3: On or about February 22, 2017, Complainant was suspended from conducting inspections. Complainant alleged that she was suspended after the legal department made the determination that her husband's employment was a conflict of interest, and that she should not be involved with Corporation X inspections. Complainant asserted that she disagreed and stated that her interests were not conflicted. Complainant acknowledged that she was allowed to continue conducting Corporation Y inspections but argued that she remained suspended from Corporation X inspections even though she had been divorced since June 2017, and reassigned to Aviation. Complainant stated her belief that her suspension was based on discriminatory factors because AFSD-I did not want an attractive female over 40 who caused problems to be in Surface. Complainant argued that her husband was promoted in March 2016, stating that management waited to take action in order to affect her promotion potential. Complainant also stated that she had discussions with management regarding the change in December 2016 and January 2017. STSI, affirmed by AFSD-I, explained that he suspended Complainant from conducting Corporation X inspections while AFSD-I and the SAA resolved their concerns in order to avoid the appearance of impartiality or a financial ethics violation. STSI stated that Complainant reported that her husband, who worked for Corporation X, had been promoted; however, management could not determine Complainant’s husband’s role or bonus entitlement. The Federal Security Director (FSD) asserted that he concurred with management’s decision. 2019005579 4 The May 2015 letter issued to Complainant reflected that Complainant had been previously authorized to conduct Corporation X inspections notwithstanding her husband's employment with Corporation X; however, the letter noted that if a particular matter arose which could impact Corporation X's ability and willingness to pay her husband's salary, Complainant had to recuse herself and contact an ethics official. The record did not contain any evidence reflecting that Complainant informed management of the change prior to December 2016. Claim 4: On or about March 22, 2017, Transportation Security Inspector-1 (TSI-1) physically moved Complainant's desk back several inches crushing her belongings. Complainant alleged that TSI-1 intentionally moved her belongings about one foot, crushing her hard hat, trash can, and other items in order to make more room for himself. Complainant noted that it was not the first time that TSI-1 had acted in the alleged manner. Complainant asserted that she objected but TSI-1 had no consideration of her personal space or belongings; and that he did not listen or respond. Complainant stated her belief that the incident was intentional harassment because TSI-1 did not want an "old woman" in his area and made sexual comments towards her. STSI stated that he was aware that Complainant alleged TSI-1 harassed her; however, he had no knowledge regarding her specific allegation or of TSI-1 making any vulgar or sexual comments. STSI stated that he attempted to obtain a statement from Complainant but she did not submit a statement and later retracted her allegations. LTSI-1 provided witness testimony, stating that he heard about this incident from Complainant but did not recall whether she mentioned that she felt harassed. The record includes documentary evidence that Complainant reported that she felt harassed by STSI on March 22, 2017; however, the document made no mention of any altercation with TSI-1. Complainant also acknowledged that she declined to write a statement. Claim 5: On or around March 30, 2017, AFSD-I stated, "I do not know why Complainant would be with someone like that," referencing Complainant's husband. Complainant stated that AFSD-I made the alleged comment in the presence of four Transportation Security Inspectors (TSI-1, TSI-2, TSI-3 and TSI-4). Complainant alleged that she expressed to AFSD-I that she felt harassed by the comment. Complainant then recalled that she had simply stated to AFSD-I that she did not understand AFSD-I's remark. Complainant stated her belief that the alleged comment was based on her protected classes because AFSD-I did not want her as a Surface TSI as Complainant was an attractive female over 40. AFSD-I denied making the comments at issue. TSI-3 asserted that he was present when AFSD-I made the comment at issue; however, he did not remember the exact wording of the comment. He stated that Complainant later mentioned that she felt harassed. LTSI-1 stated that he heard about the comments from Complainant but did not recall whether she stated she felt harassed. The other identified witnesses denied awareness of the alleged comments. 2019005579 5 Claim 6: On or about March 30, 2017, AFSD-I told Complainant, "If this job is not cut out for Complainant, then she should consider HR or aviation. There will be an opening in Elmira, Ithaca, and Horseheads." Complainant asserted that there were no witnesses present when AFSD-I made the alleged comment; she stated, however, that AFSD-I previously made the same comment in front of a Transportation Security Inspector (TSI-5) sometime in March 2016. Complainant stated her belief that the alleged comment was an attempt by AFSD-I to remove her from the Surface program because she was causing trouble as a whistleblower; and because AFSD-I did not believe Complainant was cut out for the work as Complainant was an attractive woman over 40. Complainant also asserted that AFSD-I eventually succeeded in involuntarily reassigning her to Aviation Inspections. AFSD-I denied making the comments at issue, stating that on or about March 30, 2017, Complainant informed AFSD-I that Complainant was getting a divorce and expressed an interest in an assignment closer to her family in Rochester, as well as an interest in HR. AFSD-I stated that she told Complainant that there were vacancies in Elmira, Ithaca, and Horseheads but not in Rochester. AFSD-I did not agree with Complainant’s allegation that AFSD-I no longer wanted Complainant to work in Surface Inspections. Lead Transportation Security Inspector-2 (LTSI-2) stated that Complainant told him of her allegations. In rebuttal to Claims 2 through 6, Complainant reiterated her allegations. Claim 7: On or about April 13, 2017, the Supervisory STSI issued Complainant a Letter of Reprimand (LOR). Complainant alleged that STSI issued her the LOR for misconduct due to Complainant’s failure to make notification of a false reporting entry into the Performance and Results Information System (PARIS) by LTSI-1 on December 5, 2016.2 Complainant stated that AFSD-I should have been aware of the entry when AFSD-I approved the entry in the PARIS on December 20, 2016. Complainant stated that she was unaware of the entry until January 24, 2017, because she had no ability to see it before the entry was submitted, maintaining that it was not customary to check the entries of another Inspector unless they were being trained. Complainant argued that she reported the entry to AFSD-I as soon as she became aware; however, she was still held accountable for LTSI-1’s negligent actions. Complainant alleged that TSI-1 was treated more favorably due to his sex and age because he did not receive a reprimand when he left work early and fell asleep on the job. 2 While not entirely clear, Complainant indicated that a “false reporting entry†means inaccurately reflecting inspection activities conducted by LTSIs. 2019005579 6 STSI stated that he issued Complainant the reprimand because she had knowledge of LTSI-1’s failure to accurately reflect the inspection activities he conducted, and she failed to report the violation. He noted that Complainant had had knowledge of the violation since December 5, 2016, but did not report the matter to AFSD-I until January 24, 2017. STSI asserted that TSI-1 received a three-day suspension for negligent performance of duties. He added that he issued LTSI-1 a proposed removal for making the false entry. STSI also stated that he previously issued TSI-2 a reprimand for negligent performance of duties and failure to report a suspected policy violation. AFSD-I provided supporting testimony, stating that she discussed the evidence that supported the misconduct with the STSI and recommended the reprimand. AFSD-I and FSD affirmed that TSI- 1 received a suspension for his actions. AFSD-I also stated that she previously issued a reprimand to TSI-2 for failing to report a violation; and noted that four TSIs, including Complainant, received a reprimand for failing to report the inaccurate PARIS entry. Included in the record is the LOR which indicated that Complainant's actions violated the requirements of TSA Management Directive (MD) 1100.73-5, Section 6.A, because she compromised the integrity of PARIS. In rebuttal, Complainant alleged that management raised false allegations against her, stating that she recorded the incidents in a notebook on December 1, 2016, in anticipation of the need to write a statement. Complainant reiterated that management should have been aware of the error themselves. Claim 8: On or about April 18, 2017, STSI issued Complainant a letter instructing her to refrain from conducting inspections. Complainant reiterated her disagreement with management's perceived conflict of interest regarding her husband’s employment status with Corporation X, stating that management was aware of her marriage in 2012; however, no concerns regarding a conflict of interest were brought to her attention until she applied for a job opening in 2014. Complainant maintained that she complied with the applicable MD in that matter. Complainant alleged that the 2017 letter was a continuation of a pattern of harassment in order to take work opportunities away from her due to her age and sex. Complainant also stated that TSI-2's husband was a manager for an airline; and that TSI-3’s wife worked for another airline but they were not issued similar letters. STSI stated that he issued the letter to Complainant instructing Complainant to refrain from conducting inspections due to the potential conflict of interest with her husband's change in employment position at Corporation X. He stated that management issued the letter following consultation with the SAA because they lacked clarity on Corporation X's bonus structure. 2019005579 7 STSI, affirmed by FSD, reiterated that he issued the letter to Complainant based on the potential conflict of interest; and that he informed Complainant of the potential consequences for violating government ethics rules. STSI asserted that the letter issued to Complainant was consistent with applicable guidance regarding Standards of Ethical Conduct for Employees in the Executive Branch. STSI stated that he had no knowledge of TSI-3's situation and pointed out that TSI-2 served as a Surface Inspector and had no involvement with an airline. AFSD-I provided supporting testimony, stating her agreement with the decision to suspend Complainant from performing inspections. AFSD-I also affirmed that TSI-3 inspected cargo for companies and did not work with passenger airlines. Included in the record is the guidance cited in the letter issued to Complainant which indicated that, per 18 U.S.C. § 208, it is a crime for federal employees to take official action in matters, such as inspections, in which the employee has a direct or imputed financial interest. The guidance elaborated that financial interests are imputed when a spouse currently works for or receives a salary or related benefits from a regulated entity. The record reflected that Complainant acknowledged receipt and understanding of the guidance on December 2, 2016. In rebuttal, Complainant acknowledged that her husband had recently changed positions; however, she reiterated that her husband did not present a conflict of interest because he did not receive a bonus from Corporation X, and there was no need to clarify the bonus structure. Complainant argued that she informed management of the change; and that she was filing for divorce prior to the issuance of the letter. Claim 9: On or about August 4, 2017, STSI involuntarily reassigned complainant from TSI - Surface to TSI-Aviation, resulting in a significant change in duties. Complainant alleged that management announced that she would be moved to aviation effective August 6, 2017. She acknowledged that there had been several conversations with STSI regarding a voluntary transfer; however, Complainant stated, she had declined to switch to Aviation and did not discuss the issue further prior to the reassignment. Complainant stated that she was unaware of why management decided to reassign her but stated her belief that AFSD-I was trying to get her out of Surface due to her protected classes. STSI denied that Complainant received an involuntary reassignment, stating that Complainant volunteered to trade with TSI-4; and asserting that he facilitated the trade. STSI noted that Complainant initially did not want an Aviation Mode-only position but later clarified her concerns and proceeded with the trade. STSI asserted that Complainant agreed to the reassignment and even helped TSI-4 with his paperwork so that he could qualify for the trade. AFSD-I provided supporting testimony, stating that Complainant requested a reassignment and participated in trading assignments with TSI-4. She stated that she concurred with the voluntary trade, affirming that STSI facilitated the trade. 2019005579 8 AFSD-I maintained that the reassignment was not involuntary, affirming that Complainant did express reluctance in an Aviation assignment based on inaccurate information Complainant received but subsequently made the decision to trade assignments. She added that Complainant remained dual mode for Aviation and Surface; and that Complainant thanked her for the clarification. FSD asserted that Complainant’s reassignment was not involuntary, stating his belief that Complainant and TSI-4 made the decision on the assignment. FSD maintained that Complainant concurred with the reassignment and was involved in the process. He stated that he was consulted; and that he also concurred. Contained in the record is an email from Complainant stating that, after consideration, she no longer wanted to pursue a voluntary transfer to an Aviation Mode only position. The record also includes an email which showed that AFSD-I inquired with Complainant on August 22, 2017, regarding the move; and that Complainant reported she enjoyed meeting new people. The email did not mention any concerns of discrimination or harassment. In rebuttal, Complainant reiterated that the transfer was involuntary. 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Letter, Complainant reiterates her allegations, asking that the FAD be reversed because the decision is inconsistent with established case law and ignores relevant facts that would require a reasonable fact finder to conclude that unlawful discrimination occurred. In its Appeal Brief, the Agency reiterates its FAD explanations, asserting that Complainant failed to prove that she was discriminated against or harassed; and asking that the Commission affirm its FAD. STANDARD OF REVIEW 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 2019005579 9 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 lawâ€). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on sex, age, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. First, we address the discreet acts alleged by Complainant in Claims 7, 8, and 9. Regarding Claim 7, STSI stated that Complainant was issued the reprimand for failure to report a violation by a coworker of which Complainant was aware. Complainant argued that AFSD-I should have noticed the violation almost a month prior to when Complainant reported the matter. However, AFSD-I’s failure to notice the violation does not excuse Complainant’s own failure to report it. Therefore, Complainant’s misconduct, not discriminatory animus based on Complainant’s protected classes, motivated STSI’s issuance of the LOR to Complainant. Regarding Claim 8, STSI stated that he issued the letter to Complainant instructing her to refrain from conducting inspections due to the potential conflict of interest with her husband's change in employment position at Corporation X. Complainant argued that management was aware of her marriage in 2012 but did not see a conflict until 2014 when she sought promotion. However, Complainant herself admitted that she did not notify management of her husband’s position status at Corporation X in 2016. Therefore, the evidence shows that potential ethics violations, not discriminatory animus more likely motivated STSI’s issuance of the letter. Moreover, Complainant indicated her agreement and understanding of the guidance on which the letter was based with her signature. Regarding Claim 9, STSI, affirmed by upper management, asserted that Complainant’s transfer was voluntary; and that she had traded positions with a coworker, assisting with the needed paperwork to complete the trade. Complainant contradicted management’s assertions, stating that the transfer was discriminatory because management did not want an older female service inspector. 2019005579 10 However, the Commission has posited that employers generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority, absent evidence of unlawful discriminatory motivation. Burdine, 450 U.S. at 248; Schnake v. Department of Agriculture, EEOC Appeal No. 01965915 (1998). Here, even if Complainant’s transfer was involuntary, she presented no evidence to indicate that her reassignment was motivated by discriminatory animus due to her protected classes. If anything, it appears there may have been some confusion as to whether or not Complainant was agreeable to the transfer. Given that Complainant did not describe any ageist or sexist statements made by any of her supervisors that would suggest that age or sex were considered factors, we are inclined to find that the transfer, whether voluntary or involuntary, was not the result of discrimination In an effort to show pretext, Complainant asserted that male employees received more favorable treatment. However, with regards to Claim 7, management explained that TSI-1 received a three- day suspension for negligent performance of duties; and that other male employees previously received reprimands for similar infractions. Complainant also identified comparators, arguing that two coworkers did not receive letters to refrain from inspections even though their spouses worked for other airlines with respect to Claim 8. However, both coworkers were improper comparators because they were not similarly situated to Complainant as they performed duties different from those performed by Complainant. Employees are considered "similarly situated" when all relevant aspects of their respective work situations were identical or nearly identical in regard to the alleged discriminatory action(s). "Complainant" v. Dep't of Homeland Sec., 0120130896 (Mar. 4, 2015); Ferrell v. U.S. Postal Serv., EEOC Appeal No. 0120064642 (Jun. 17, 2008), citing Anderson v. Dep't of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003). Because Complainant failed to refute management’s explanations with any direct evidence, and because Complainant failed to identify similarly situated employees outside her protected classes who received more favorable treatment under similar circumstances, Complainant failed to show pretext and her allegations fail. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). Regarding Complainant’s harassment allegations in Claims 1 through 8, AFSD-I denied making the comments about why Complainant remained with her husband. All RMOs, including Complainant’s own witnesses, asserted that the remaining alleged incidents did not occur or that they did not occur as Complainant described them. We find that while Complainant may dispute management’s actions, and while she may have preferred to remain in Inspection services, she has failed to describe any verbal or physical management conduct that meets the requisite level of severity or pervasiveness to constitute actionable harassment. Instead, Complainant’s allegations involve routine work assignments, instructions, and admonishments that do not rise to the level of discriminatory harassment. See DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Dep’t of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). 2019005579 11 Likewise, even if AFSD-I was aware of Complainant’s prior protected activity, Complainant’s reprisal allegations fail because that activity occurred in 2011, and lacks temporal proximity to the instant complaint. The Supreme Court has held that the temporal proximity between an employer's knowledge of protected activity and the adverse employment action must be “very close.†See Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (citing with approval Circuit Court of Appeals decisions holding that time gaps of three to four months between an individual's prior EEO activity and the current adverse employment action were too attenuated to suggest an inference of retaliation).3 Because Complainant withdrew her hearing request, she failed to avail herself of the discovery process which would have allowed for an examination of the credibility or lack thereof of management’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that discrimination or retaliation occurred; and that the Agency subjected her to harassment. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 3 The EEOC has followed suit and rendered decisions establishing much shorter time frames to establish the requisite temporal proximity. See e.g. Heads v. U.S. Postal Serv., EEOC Appeal No. 01A51547 (June 2, 2005); Archibald v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 01A54280 (Sept. 22, 2005); and Lynch v. U.S. Postal Serv., EEOC Appeal No. 01A24705 (Aug. 14, 2003). 2019005579 12 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, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2019005579 13 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 14, 2020 Date
