[Redacted], Jayna A., 1 Complainant,v.Gary Gensler, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2020003576 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayna A.,1 Complainant, v. Gary Gensler, Chair, Securities and Exchange Commission, Agency. Appeal No. 2020003576 Hearing No. 570-2019-00305X Agency No. SEC-00005-2018 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 30, 2020, 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 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 order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency discriminated against her based on her age, national origin, or sex when it did not select her for a General Attorney position. 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. 2020003576 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Counsel (SK-14) at the Agency’s Office of General Counsel in Washington, D.C. On August 25, 2017, the Agency opened a vacancy for a General Attorney (SK-16) position in the General Litigation Group, under vacancy announcement number 17-IN-10037966-CMH. Report of Investigation (ROI) at 88-102. Complainant stated that no interviews were conducted, and four applicants were selected. ROI at 73, 75. Complainant stated that on October 26, 2017, the Deputy General Counsel (DGC) sent an email announcing the four selectees, three of the four selectees were much younger than Complainant and none of the selectees were Hispanic or Latina women. ROI at 78-80, 103. The selectees were: Selectee 1 (S1) (age 36, female, White); Selectee 2 (S2) (age 56, male, Black); Selectee 3 (S3) (age 44, female, White); and Selectee 4 (S4) (age 40, male, White). ROI at 594. On February 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), and age (57) when it failed to select her for an SK-16 General Attorney position in the Office of General Counsel’s Litigation and Administrative Practice Group pursuant to vacancy announcement number 17-IN-10037966-CMH on October 26, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s February 12, 2020 motion for a decision without a hearing. On March 24, 2020, the AJ issued a decision finding no discrimination. As an initial matter, the AJ found that the Agency accurately recounted the relevant facts in this case. To the extent that Complainant disputed these facts, the AJ determined that the record did not reflect any disputed issues of fact that were material to the outcome of the case. Consequently, the AJ adopted the Agency’s facts. The AJ noted that it was undisputed that eight internal candidates were deemed qualified, and that the selecting officials charged the Assistant General Counsels (AGCs) with recommending four attorneys for promotion. The AGCs conferred and unanimously recommended four applicants. The AJ found that the Agency asserted specific, performance-based reasons for its choices, which were well-supported by the testimonial evidence in the record and the performance appraisals of the respective candidates. While Complainant argued pretext for discrimination due to her superior qualifications, highlighting her impressive educational credentials and more than thirty years of legal practice, the AJ found that these attributes did not necessarily make her better suited for the promotion at issue. The AJ noted that the candidates’ resumes were not evaluated in the abstract; rather, the selections were based on the AGCs’ experiences working with the eight internal candidates, which were more favorable with the selectees. 2020003576 3 The AJ determined that, beyond her impressive credentials and her personal disagreement with the ways in which the AGCs evaluated her performance, Complainant offered no evidence to suggest that considerations of national origin, sex, and/or age played a role in the selections. The AJ concluded that Complainant failed to establish a disputed issue of material fact and granted the Agency’s Motion for Summary Judgment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that there are material facts in dispute and, when viewed in the light most favorable to Complainant, the facts should have resulted in the denial of the Agency’s Motion for Summary Judgment. Complainant asserts that the AJ erred when she credited the Agency’s evidence and failed to acknowledge Complainant’s undisputed evidence that the Agency: a) failed to document the criteria by which they evaluated the eligible candidates; b) failed to document the application of any objective criteria to any of the candidates; c) failed to interview any of the candidates; and d) admitted that the panel members could not articulate why any of the recommended (and ultimately selected) candidates were considered superior to Complainant. Complainant argues that, in the absence of interviews, the candidates’ resumes should have been the basis for the Agency’s decisions, thereby properly documenting the Agency’s claim that the selectees were objectively better qualified. Instead, asserts Complainant, the recommending and selecting officials relied on their subjective, prior knowledge of the candidates, which does not meet the Agency’s production burden, citing to Howard v. Veterans Admin., EEOC Appeal No. 01881099 (Jan. 9, 1989). Further, Complainant contends that the Agency’s failure to conduct interviews for this position violated its own policy (Policy Memorandum PM-2016-001), which mandates the screening and interviewing of candidates in a “standardized manner,” which “increases the likelihood of selecting the most qualified candidate(s) for the position.” As for the AJ crediting the Agency’s assertion that the selections were based on the candidates’ performance evaluations, Complainant argues that evaluations were not required nor requested as part of the job announcement. In Complainant’s view, the AJ failed to give sufficient weight to the evidence of her objectively superior qualifications. While the AJ recognized her “impressive credentials and years of practice,” the AJ erred in discounting her qualifications to conclude that they did not make her “better suited to the promotion at issue.” 2020003576 4 Complainant states that she has over 30 years of legal experience and, since joining the Agency in 2005, she has litigated numerous complex matters. In comparison, three of the selectees had only three to six years of Agency experience, with work that was significantly less varied and robust than Complainant’s work. Moreover, none of them had any experience supervising employees. Complainant argues that the AJ committed reversible error when she erroneously stated that Complainant was required to present direct evidence of discrimination in order to establish a prima facie case of discrimination. Rather, asserts Complainant, to prevail in a circumstantial disparate treatment case a complainant need only satisfy the three-part evidentiary scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which she has done. Complainant also asserts that the AJ failed to properly consider her prior non-selections for an SK-16 position as evidence of discrimination. She requests that the Commission reverse the AJ’s decision and remand the complaint for a hearing. Agency Contentions The Agency asserts that the AJ correctly concluded that the record had been fully developed, leaving no genuine issues of material fact in dispute, and that Complainant failed to establish that the Agency’s articulated reasons for competitively promoting four other individuals constituted a pretext to conceal a discriminatory motive. The Agency argues that Complainant identified no evidence that would allow a factfinder to disbelieve management or to suggest that a prohibited basis lay beneath the promotion decisions. As for facts highlighted by Complainant in an effort to undermine the Agency’s decisions, including her “plainly superior qualifications” and the allegedly improper consideration of past performance evaluations, the Agency argues that Complainant’s arguments do not constitute disputes of fact, but rather, arguments about how undisputed facts should be interpreted under the law that governs this case. The Agency reiterates that: a) the Job Announcement set forth the criteria on which the candidates were evaluated; b) one AGC documented the recommendations of the AGCs; c) interviews were not required for the promotions at issue; and d) the fact that one of the AGCs could not articulate why any of the recommended candidates were superior to Complainant did not undermine the collective judgment of the AGCs regarding which candidates to recommend. Regarding Complainant’s argument that the lack of interviews violated Agency policy, and therefore, supported a finding of pretext, the Agency notes that the policy required interviews of all candidates if any candidate was offered an interview. That is, to require that all applicants be evaluated in the same way. Moreover, states the Agency, the policy applied to hiring decisions, not internal promotion decisions. 2020003576 5 The Agency states that the management officials provided specific reasons for their selections. For example, four AGCs who had worked directly with Complainant testified that, as measured against the selectees, Complainant’s written work required more editing; Complainant expended time and energy on tangential matters; and Complainant was less adept at working with peers and clients. The Agency notes that these statements are neither vague nor generalized, but are specific recollections of managers who had worked with Complainant and reviewed her work. In addition, the Agency asserts that the recommendations of the four selectees were not based upon an assessment of their performance evaluations. Rather, the performance evaluations demonstrated that the reasons articulated by management conformed with previously documented evaluations of the respective candidates’ performance. The Agency believes the AJ correctly concluded that Complainant’s qualifications did not automatically make her the best candidate and that she would have to demonstrate that “the disparities in qualifications were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen [the selectees] over [Complainant] for the job in question.” Cyrus A. v. Vilsack, EEOC Appeal No. 0120150117 (Oct. 18, 2016). The Agency asserts that Complainant has not met that burden. While three of the selectees had fewer years of experience, they all were experienced attorneys with records of stronger performance than Complainant. As for Complainant’s contention that the AJ committed reversible error in finding that she offered no direct evidence of bias, the Agency argues that the AJ’s ruling was not based upon the absence of direct evidence alone. Rather, notes the Agency, the AJ also correctly applied the burden-shifting test first set out in McDonnell Douglas, supra, and concluded that Complainant failed to meet her ultimate burden of proving that the reasons articulated by the Agency were a pretext for discrimination. The Agency requests that the Commission affirm its final order. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions 2020003576 6 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Decision without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that there are disputed material facts, and the Agency counters that Complainant’s arguments do not constitute disputes of fact, but rather, arguments about how undisputed facts should be interpreted under the law that governs this case. We find that Complainant has not identified any disputed material facts on appeal, and we agree with the Agency that Complainant’s proffered disputed facts are her arguments, which we will address below. As such, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, supra. Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 2020003576 7 Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show 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); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on age, national origin, and sex, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. DGC stated that the Associate General Counsel was the selecting official, but they jointly made the decision. DGC stated that he considered the recommendations from the AGCs and his own observations of the candidates. DGC stated that his direct experience working with Complainant was not as positive as his experiences with the other candidates. Specifically, DGC stated that when Complainant worked on a matter, the Regional Director asked for a different attorney because he was not happy with Complainant’s work.2 To compare, DGC stated that he received “substantial positive feedback” regarding the selectees. ROI at 191-2, 195. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). In this case, Complainant disagrees with the Agency’s selections, but she has not shown that the proffered reasons were unworthy of belief. On appeal, Complainant argues that the Agency failed to document the criteria used to evaluate the eligible candidates and the application of such objective criteria. However, the vacancy announcement showed that the criteria for evaluation included specialized experience in producing concise, accurate and persuasive memoranda, legal documents, letters and reports; conducting investigations; presenting oral arguments; and conducting evidentiary hearings. ROI at 93-4. The record shows that the AGCs met on September 25, 2017, to discuss the candidates, and they confirmed that the applicants were considered based on criteria outlined in the vacancy announcement. ROI at 322, 268-70, 283-5, 295-8, 327, 591. Complainant argues that, in the absence of interviews, the candidates’ resumes should have been the basis for the selection decisions. 2 During the hearing stage, the Regional Attorney provided a declaration and confirmed that he asked DGC to remove Complainant from a case and DGC assigned a different attorney. 2020003576 8 Complainant states that in the absence of documented interviews with uniform questions, the recommending and selecting officials reliance on their subjective prior knowledge of the candidates with whom they were familiar does not meet the Agency’s burden, as in Howard v. Veterans Admin., supra. However, we find that the instant case is distinguishable. In Howard, no agency official had any recollection of the selection in question, and no one with knowledge of the criteria employed in the selection gave evidence regarding the basis for distinguishing between the complainant and the selectee. Here, the responsible management officials provided testimony in response to Complainant’s allegation of discrimination for her non-selection. While Complainant argues that the Agency should have interviewed the candidates; made its decisions based on the candidates’ resumes; and provided detailed notes to support their decisions, her opinions on how the Agency should have made the selections is not evidence of pretext. To the extent that the Agency did not provide notes in support of their decisions, an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretext for discrimination. See Complainant v. Dep’t of Homeland Security, EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Social Security Admin., EEOC Request No. 05980011 (Apr. 26, 2001). Complainant argues that the Agency only offered “vague and generalized assessments” of the candidates’ work and performance. However, the record reflects that the AGCs provided detailed and specific reasons for their recommendations. For example, an AGC (AGC1), who was Complainant’s first-line supervisor, also supervised S2 and S4. AGC1 stated that, as compared to S2 and S4, Complainant’s writing was not as strong; Complainant had a lower level of productivity; and Complainant did not interact as effectively with others. AGC1 also stated that S2 and S4 better managed their investigations and litigation. ROI at 296. Complainant asserts that one of the AGCs (AGC2) was not familiar with her work. However, AGC2 stated that he did not offer his opinion about Complainant, but he confirmed that the group discussion focused on the candidates’ merits and abilities, and Complainant’s work was determined to be not as good as the other candidates’ work. ROI at 591. The other AGCS specified that each selectee demonstrated “significantly better legal skills and judgment”, whereas Complainant’s legal skills and judgment were not at an SK-16 level. In particular, the other AGCS noted that all four selectees were better than Complainant at identifying important issues, identifying strategies, writing, and effectively communicating with others. Complainant needed considerable supervision to make sure she was focusing on key issues and writing in a direct and persuasive manner. While Complainant’s work on a district court case was acceptable, the matter was not complex. In comparison, S1 and S3 were superior candidates due to their abilities to handle complex and/or highly sensitive matters with a great deal of independence. ROI at 268, 283, 325. Complainant also argues that the Agency’s failure to conduct interviews for this position violated the Agency’s own policy. 2020003576 9 As noted above, the Agency stated that the policy only required that all applicants be evaluated in the same manner and that the policy cited did not apply to internal promotion decisions. We note that Complainant did not provide any evidence to dispute these statements. In addition, Policy Memorandum PM-2016-001 outlines the processes for screening resumes to narrow the applicant pool to a manageable number and for interviewing applicants, and the policy stipulates that it applies to “vacancies that include a screening process.” ROI at 254-6. However, the vacancy at issue did not include a screening process. As such, we find that the Agency did not violate its internal policy. Complainant argues that the AJ erred in relying on the Agency’s claim that it chose the four candidates over Complainant because of their assessment of the candidates’ performance evaluations. However, there is no evidence that the Agency used the candidates’ performance evaluations when making the selections. Rather, AGC1 stated that they based their decisions on the criteria listed in the job posting, and he added that Complainant had the lowest performance ratings of any of the applicants that he supervised, in response to a request for any additional relevant information. ROI at 298. Complainant also argues that the AJ erroneously claimed that Complainant was required to present direct evidence of discrimination in order to establish a prima facie case of discrimination, but a review of the AJ’s decision shows that the AJ did not require direct evidence of discrimination. The AJ stated that, absent direct evidence of discrimination, to prevail in a disparate treatment claim, a complainant generally must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell-Douglas. The AJ then specifically found that the Agency articulated nondiscriminatory reasons for its selections, and that Complainant did not prove that the reasons were pretextual, masking discriminatory intent. While Complainant asserts that evidence of her prior non-selections constitutes indirect evidence of discrimination, she presented no legal authority to consider any prior non-selections as indirect evidence of discrimination. We note that disparate treatment claims are fact-specific, and each non-selection requires relevant evidence to support any discrimination claim. In addition, in a non-selection case, pretext may be found where the complainant's qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant argues that she has superior qualifications as shown by over 30 years of legal experience, including experience litigating numerous complex matters for the Agency, while the selectees had fewer years of significantly less varied and robust experience and no supervisory experience. However, the Commission has found that number of years of experience does not establish an applicant’s qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011). We also note that the position was not designated as supervisory, and the minimum qualifications did not include prior supervisory experience. ROI at 91-4. We find that Complainant did not demonstrate that her qualifications were plainly superior such that the disparities in her qualifications and those of the selectees were of such weight and significance that no reasonable person could have chosen them over her. See Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). 2020003576 10 We further note that the Commission has previously found that an agency has the discretion to choose among candidates whose qualifications are relatively equal as long as the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC Appeal No. 0120110338 (March 23, 2011), citing Texas Dep’t of Community Affairs, 450 U.S. at 248, 252- 259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v. Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency’s assessment of the candidates’ qualifications. Texas Dep’t of Community Affairs, 450 U.S. at 259. Here, even assuming that the candidates were equally qualified, there is no evidence of any unlawful discrimination in the Agency’s selections. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, national origin, or sex when it did not select her for an SK-16 General Attorney position, advertised under vacancy announcement number 17-IN- 10037966-CMH. 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 order adopting the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 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 2020003576 11 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 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. 2020003576 12 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 October 4, 2021 Date