[Redacted], Ken M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2021002219 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2021002219 Hearing No. 570-2018-00821X Agency No. NGAE-0027-2017 DECISION On November 18, 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 October 16, 2019, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a summary judgment decision; and (2) whether the preponderance of the evidence establishes that Complainant was subjected to discrimination based on sexual orientation and/or disability. 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. 2021002219 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an IA-0000-05 Lead Program Officer/Technical Executive in the Agency’s Human Development (HD) Directorate in Springfield, Virginia. Complainant’s first-line supervisor was the HD Chief of Staff (S1), his second-line supervisor was the HD Deputy Director (S2), and his third-line supervisor was the HD Director (S3). Complainant began working for the Agency on February 10, 2002. Complainant is gay. Complainant stated that he is HIV positive and has depression and vertigo. Complainant averred that the medications he took for HIV caused trouble concentrating, difficulty expressing himself, irrational thought processes, and insomnia. According to Complainant, his depression got worse after his sister died in 2013. Complainant stated that, since she became his supervisor in November 2015, S1 was aware that he had called in sick numerous times because of illness and depression and that he was dealing with work-related stress. In fiscal year (FY) 2016, the Agency’s Office of Inspector General (OIG) Forensic Analysis Smart Team (FAST) launched an investigation into the text messages sent by Complainant using his government Blackberry and smartphone from July 1, 2014, through June 30, 2015. FAST determined that 653 text messages, which was 95.2 percent of the texts, were personal in nature. FAST also determined that 147 text messages contained sexually explicit content and/or were potentially harassing and indecent. During the 2016 investigation into Complainant’s misuse of the Blackberry and smartphone, the OIG FAST also discovered that Complainant had failed to report his April 2015 foreign travel. The OIG FAST also found evidence of time and attendance fraud and opened a separate investigation. The OIG FAST investigation into Complainant’s time and attendance showed that, from October 5, 2014, through July 30, 2016, there were 768.15 hours that Complainant had claimed to have worked in his time and attendance records when he was not present or working in any Agency facility, he was not performing official duties outside of an Agency facility, and he was not in an approved leave status. OIG calculated that Complainant had been compensated $58,608.52 for these hours. The OIG report indicated that Complainant’s behavior could fall under two federal criminal offenses, 18 U.S.C. § 287 (False, Fictitious, or Fraudulent Claims) and 18 U.S.C. § 1001(a) (Fraud and False Statements). On February 13, 2017, S2 issued Complainant a Notice of Proposed Removal for 66 instances of Misuse of Government Property related to the personal text messages on his government cell phone; one instance of Failure to Follow Procedures for failing to report his April 2015 trip to London, England; 13 instances of Falsification for being short more than 20 hours per pay period, totaling 392.97 hours; 33 instances of Absence Without Leave (AWOL) for being AWOL from the workplace for five hours or more on 33 occasions totaling 234.9 hours; and 12 instances of Conduct Unbecoming a Federal Employee for when he was not at his duty station or other authorized location, which accounted for 317 hours in addition to the occasions when he was AWOL. 2021002219 3 S2 considered as an aggravating factor that, in November 2005, Complainant had been suspended for 14 days for watching pornography on his government computer. S2 averred that, when she issued the proposed removal, she was aware of Complainant’s sexual orientation from the explicit text messages referenced in the OIG Report, but she was unaware that Complainant had any mental or physical impairments. S2 denied that Complainant’s sexual orientation was a factor in the proposal, stating that the charge associated with the explicit text messages was Misuse of Government Property. S2 stated that all employees are responsible for documenting their hours accurately in the time and attendance system. According to S2, in the five years before Complainant was removed, there were two comparable cases of Misuse of Government Property and five comparable cases of Conduct Unbecoming a Federal Employee that related to time and attendance. S2 stated that all seven comparable cases resulted in the employee’s removal. Complainant requested an oral reply to the deciding official, S3, but he did not submit a written reply. During his February 15, 2017, oral reply, Complainant informed S3 that he was gay, that he was HIV positive, and that he had been dealing with depression since his sister’s death. Complainant also provided S3 with a letter from his primary care physician discussing Complainant’s HIV status and the side effects of his medication. According to S3, she was unaware of Complainant’s sexual orientation or that he had a disability before the oral reply. Complainant characterized the text messages as “sexual text messages and disagreement between me and my significant other and platonic and horse play text messages with friends during non- business hours on the government issued cell phone.” Report of Investigation (ROI) at 105-06. Complainant stated that the unreported foreign travel related to a short trip to London with his family. According to Complainant, because the United Kingdom is part of the Intelligence Alliance, he forgot to report the travel. According to Complainant, most of the 768 hours in question were occasions when he needed unscheduled leave due to his illness and depression. Complainant averred that, on these dates, he called in and told supervisory or administrative support personnel that he would be out sick. Complainant alleged that, because his time and attendance was certified and approved by administrative staff and his supervisor or an alternate, he thought it was accurate. Complainant added that, until his time and attendance was scrutinized, he was unaware that he had to update his schedule in the time and attendance system in order to receive flexible meal hours. Complainant stated that, when he was terminated, he had 1089 hours of sick leave and approximately 200 hours of annual leave. Complainant averred that, during his oral reply, he asked S3 to subtract 216 hours of flexible meal hours from the 768 hours in question and retroactively apply his sick leave to the remainder. Complainant stated that he was under the impression that he could not reconcile, correct, or retract the time and attendance discrepancies until after the final OIG report was delivered to management and addressed with Complainant. On February 27, 2017, S3 issued a Notice of Decision Regarding Proposed Removal, which upheld the removal, effective March 18, 2017. S3 found that all specifications of the five charges in the proposed removal were sustained. 2021002219 4 According to S3, she considered that Complainant said he experienced family problems, including after the death of his sister. However, S3 averred that, given the extended period of the misconduct, she did not feel that his personal circumstances justified, mitigated, or excused his actions. Complainant alleged that his sexual orientation was a factor in his removal because the text messages were sexual in nature and explicit. Complainant also alleged that his disability was a factor because the absences were attributable to his medical conditions and because he had sufficient sick leave to retroactively cover the hours. According to Complainant, S3 should have offered him a reasonable accommodation when she learned about his disability or at least considered it as a mitigating factor. Complainant stated that he never requested a reasonable accommodation for his disabilities. However, Complainant averred that he expected S1 and S3 to offer him reasonable accommodations after learning about his illness and depression. According to Complainant, S2 was the first person he told at the Agency about his HIV status because of the stigma. Complainant alleged that, instead of helping him after learning about his disability, S3 fired him. S2 and S3 stated that Complainant received an “Excellent” on his most recent performance appraisal and that they were unaware that he needed a reasonable accommodation to perform the essential functions of his position. Between April 29, 2017, and May 13, 2017, Complainant received five letters from the Defense Finance and Accounting Service (DFAS) requesting repayment of $54,941.66 for hours for which he had been compensated but had not been working or in an approved leave status. S2 stated that, when an employee is found to have been compensated for hours reported as worked in official time and attendance records when the employee was not working, performing official duties, or in an approved leave status, DFAS recoups the money on behalf of the federal government. According to Complainant, in June 2017, a prospective employer told him that he could not be hired because there was negative information in the Joint Personnel Adjudication System (JPAS), a personnel security clearance database management system. On April 11, 2017, the Agency updated Complainant’s JPAS information to reflect loss of jurisdiction over his security clearance when Complainant was terminated and noted that the implicated adjudicative guidelines were Sexual Behavior, Personal Conduct, Criminal Conduct, and Use of Information Technology Systems. Complainant had a Top Secret/Sensitive Compartmented Information (SCI) security clearance while working for the Agency, and he stated that he never would have been hired by the Agency or cleared to work around SCI if he had a criminal background. Complainant stated that he has never been charged with or convicted of a felony, a misdemeanor, a DUI, a drug-related offense, domestic violence, or any other offense that could lead to the revocation of his security clearance. Complainant stated that, in the JPAS report, the Agency indicated that he had been terminated for cause by the Agency prior to an adjudicative decision. Complainant added that he had excellent credit, had no outstanding debt, and completed the financial disclosure form every year. 2021002219 5 Complainant alleged that the Agency also referenced sexual behavior, which, according to Complainant, makes it sound as if he has been charged with sexually harassing or assaulting someone in the workplace rather than sending text messages to his significant other and friends during non-business hours. Complainant averred that the Agency listed sexual behavior because of his sexual orientation and would not have done so if he were heterosexual. On June 1, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation)2 and disability (physical and mental) when: 1. Sometime in 2016 and/or 2017, the Agency failed to reasonably accommodate Complainant after learning of his disabilities; 2. On February 27, 2017, Complainant received a Notice of Decision Regarding Proposed Removal that upheld the proposed removal, effective March 18, 2017. The removal decision refused to consider Complainant’s disabilities as mitigating factors; 3. Between April 2017 and May 2017, the Agency demanded payment of $54,941.66 from Complainant after improperly converting his medical absences to AWOL in February 2017; and 4. In or around May 2017, the Agency added negative information regarding his termination in JPAS, compromising Complainant’s ability to obtain employment requiring a security clearance. Complainant believes that the results of an OIG investigation, for which he was not informed that the final report had been completed, led to his termination. Complainant alleges that the Agency noted “criminal conduct” in JPAS, even though he has never been convicted of a crime nor accused of any criminal conduct. Complainant further alleges that the Agency failed to debrief upon termination of his employment. On May 2, 2018, Complainant requested a hearing before an EEOC AJ pursuant to 29 C.F.R. § 1614.108(g). On June 6, 2018, Complainant filed a Request for Sanctions based on the Agency’s failure to timely initiate and complete the investigation of his complaint. Complainant requested that the AJ either: (1) issue a default judgment against the Agency; or (2) draw an adverse inference that the information the Agency did not provide during the investigation would have reflected unfavorably on the Agency, order the Agency to conduct a full and fair investigation, and award Complainant attorney’s fees and costs incurred during discovery and in preparing the Request for Sanctions. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2021002219 6 In response to Complainant’s Request for Sanctions, the Agency argued that part of the delay in completing the investigation was attributable to Complainant’s multiple attempts to clarify the accepted issues. The Agency issued its Second Corrected Notice of Acceptance of Discrimination Complaint on April 30, 2018. The EEO Investigator certified the completion of the Report of Investigation on August 27, 2018. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on August 15, 2019. The AJ found that there were no genuine issues of material fact or credibility disputes. The AJ concluded that, even viewing the evidence in the light most favorable to Complainant, he could not establish that the Agency’s actions were based on his membership in any protected class. In the decision, the AJ considered Complainant’s request for sanctions, finding that there was no evidence of contumacious conduct or bad faith by the Agency and no evidence of prejudice to Complainant. However, the AJ found that the Agency’s delay in completing the investigation was significant and ordered the Agency to pay Complainant’s attorney’s fees and costs related to drafting and filing the Request for Sanctions within 60 days of the Agency’s final action. The Agency subsequently issued a final order fully implementing both the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged and the imposition of the sanction.3 Based on a submission from Complainant’s legal representative, the Agency stated that it would pay $1,503.70 in attorney’s fees and costs within 60 days of issuing the final order. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ failed to view the evidence in the light most favorable to Complainant and ignored genuine issues of material fact. According to Complainant, the AJ ignored ample evidence that Complainant was removed because of his sexual orientation and disability. Complainant argues that there is no evidence that other employees were removed for misuse of government property consisting of consensual text messages with a partner, for time and attendance inaccuracies similar to Complainant’s, or for failing to report personal travel. Complainant suggests that three heterosexual employees who were charged with similar or worse sexual misconduct were not terminated. Complainant further contends that he was disadvantaged by not being able to engage in discovery. Complainant requests that the Commission remand the case for discovery and a hearing on the merits. The Agency did not submit a statement or brief in response to Complainant’s appeal. 3 On appeal, neither party raises the appropriateness of the sanction imposed against the Agency by the AJ. The Commission exercises its discretion to address only those issues specifically raised on appeal and will not address the sanction in this decision. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chap. 9, § IV.A (Aug. 5, 2015). 2021002219 7 ANALYSIS AND FINDINGS 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 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 Chapter 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 of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We 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). Complainant contends that the record requires further development because S1 was not interviewed and to develop detailed comparator data. Although S1 left federal employment before Complainant filed his EEO complaint and did not respond to requests from the EEO investigator, the record contains S1’s January 12, 2017, response to the OIG FAST investigations concerning misuse of government property, failure to report foreign travel, and fraudulent time and attendance. We carefully reviewed the record and find that it is adequately developed. 2021002219 8 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 has not done so. For example, Complainant contended that there was a genuine issue of material fact regarding whether he requested a reasonable accommodation because, around October 2016, “without discussing in detail the type of illness I am battling, while passing by” the office of the National Geospatial Intelligence Agency College (NGC) Deputy Director, “I stuck my head in his office and told him I am sick and asked if he could have his technical staff assist me with some of the travel to NGC remote sites.” ROI at 97. Complainant also characterizes general conversations about the difficulties he experienced after his sister’s death as requests for accommodation. We agree with the AJ that no reasonable finder of fact would find that these brief discussions amounted to requests for reasonable accommodation. Denial of Reasonable Accommodation Complainant alleges that he was denied a reasonable accommodation. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), No. 915.002 (Oct. 17, 2002). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). “The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m). Prior to disclosing his HIV status to S3 during his oral reply, Complainant did not have any known physical or mental impairments. Complainant may have mentioned to various individuals that he was experiencing a hard time after his sister’s death or that he was sick on occasion, but this does not establish that the Agency knew that Complainant had a disability and/or that he needed reasonable accommodation to complete the essential functions of his position. Moreover, the need for a reasonable accommodation does not excuse past misconduct. See Enforcement Guidance on Reasonable Accommodation at Question 36 (“An employer must make reasonable accommodation to enable an otherwise qualified employee with a disability to meet such a conduct standard in the future, barring undue hardship, except where the punishment for the violation is termination”). Moreover, “an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.” Id. Complainant had already engaged in the misconduct that led to his termination by the time he raised his disability. The Agency was not required to excuse the conduct or to mitigate the penalty as a form of reasonable accommodation, even if the past misconduct was based on his disability. Id. 2021002219 9 At that point, the Agency was also under no obligation to initiate the interactive process with Complainant regarding the precise limitations resulting from his disability and potential reasonable accommodations that could overcome those limitations. Under the circumstances of this case, we find that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that he was discriminated against when he was removed. The Agency’s legitimate, nondiscriminatory reason for removing Complainant was that two OIG investigations revealed that he engaged in misconduct by sending sexually explicit text messages using his government cell phones, failing to report foreign travel, and claiming to have worked and receiving compensation for hours during which he was not working or in an approved leave status. As evidence of pretext, Complainant contends that the text messages were consensual and some were with his then-boyfriend. However, whether the text messages were consensual or nonconsensual was not at issue, and Complainant does not contest that he sent the text messages using a government device or that some of the messages were sexually explicit. Complainant also alleges that his disability was the real reason for his termination, but Complainant did not disclose his HIV status or the nature of his disability until he was responding to his proposed removal. Complainant further suggests that others who engaged in similar or worse conduct were not removed. Having considered all of Complainant's arguments, we find that Complainant has not established by preponderant evidence that the Agency’s proffered legitimate, nondiscriminatory reason was a pretext designed to mask discriminatory animus. Complainant also alleged that he was subjected to discrimination when DFAS sought repayment of $54,941.66. The Agency’s legitimate, nondiscriminatory reason is that DFAS recoups compensation paid for hours claimed as worked when it is found that the employee was not working or in an approved leave status. Although Complainant argues that he had extensive sick leave that could have covered the hours in question, the record reflects that he did not ask to use his sick leave for these hours until after he was issued the proposed removal. 2021002219 10 We find that Complainant has not established by preponderant evidence that this legitimate, nondiscriminatory reason was a pretext for discrimination based on sexual orientation and/or disability. Finally, Complainant alleged discrimination with respect to the notations placed in JPAS. The Agency’s legitimate, nondiscriminatory explanation was that it updated JPAS to reflect a loss of jurisdiction over Complainant’s security clearance after his removal and noted that his removal related to four of the adjudicative guidelines, Sexual Behavior, Personal Conduct, Criminal Conduct, and Use of Information Technology Systems. As evidence of pretext, Complainant contends that he was never charged with or convicted of a crime. Complainant also argues that the phrasing of Sexual Behavior suggests that he engaged in workplace sexual harassment or sexual assault. Since some of Complainant’s misconduct did implicate criminal statutes and consisted of sexually explicit messages, we find that this is insufficient to establish pretext. Complainant has not established by the preponderance of the evidence that the Agency’s legitimate, nondiscriminatory reason was pretextual. 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 fully implementing the AJ’s decision finding no discrimination and imposing a sanction against the Agency. We REMAND the matter to the Agency for further action in accordance with the ORDER below. ORDER To the extent that it has not already done so, the Agency is ORDERED to pay Complainant $1,503.70 in attorney’s fees and costs within 60 calendar days of the date this decision is issued. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2021002219 11 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. 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. 2021002219 12 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. 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. 2021002219 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 September 2, 2021 Date