[Redacted], Kimber L., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2021003548 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimber L.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003548 Hearing No. 470-2019-00088X Agency No. BOP-2018-0016 DECISION 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 May 4, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Forensic Psychologist, GS-13, at the Agency’s Federal Medical Center in Lexington, Kentucky. On January 16, 2018, Complainant filed a formal EEO complaint claiming that the Agency subjected her to discrimination based on race (Caucasian), sex (female), and in reprisal for prior protected EEO activity2 when: 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. 2 Complainant initiated EEO counseling regarding the instant complaint on or about October 2, 2017. 2021003548 2 1. Complainant’s supervisor (Chief Psychologist) made derogatory remarks to her at a meeting in December 2017; 2. Chief Psychologist bullied Complainant; 3. Chief Psychologist micro-managed Complainant by implementing additional duties and requiring her work be reviewed and audited by him; 4. Complainant’s quarterly performance appraisals were presented to her late, and she received lowered ratings in her quarterly and annual evaluations after she commenced the EEO process; and 5. Complainant identifies six additional incidents that occurred in March and April 2018 in support of her reprisal claim.3 After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant timely requested an AJ hearing. The AJ held a hearing on December 15, 16, 17, 2020 and January 6, 2021. Following the hearing, the AJ issued a bench decision on March 31, 2021, finding no discrimination or unlawful retaliation. The AJ heard testimony from ten witnesses, including Complainant. The AJ determined that Complainant did not demonstrate that she was subjected to racial, sexual, or retaliatory discrimination. Specifically, the AJ noted that many of Complainant’s claims involved differences of opinion regarding the Chief Psychologist’s managerial decisions that were implemented in the department. Complainant’s mere disagreement, however, with these decisions did not render the decisions discriminatory. Although Complainant disagreed with these decisions, the AJ found that Complainant did not prove that the Chief Psychologist’s actions were attributed to Complainant’s protected basis and EEO activity. 3 In sum, those incidents involve claims regarding (1) the Chief Psychologist’s failure to provide Complainant information about processing extension requests; (2) the Chief Psychologist’s failure to inform Complainant that he rerouted one of her forensic reports, which resulted in her report being late; (3) the Chief Psychologist’s refusal to approve Complainant’s two extension requests for two new forensic study inmates, even though but approved her co-worker’s (Co- worker-1, African-American, female, Forensic Psychologist) extension request even though both she and Co-worker-1 used the same justification for the extensions; (4) the Chief Psychologist denied Complainant union representation during her annual performance review; (5) the Chief Psychologist reduced Complainant’s rating from “E” to “S” on two elements even though her work had not changed; and (6) the Chief Psychologist held Complainant’s forensic report in his office which resulted in Complainant’s report being late. 2021003548 3 The AJ explained that the Chief Psychologist assigned Complainant, opposed to Co-worker-1, to archive the files in the filing room because the majority of the files belonged to Complainant. The AJ further explained that testimony from Co-worker-1 reflected that the requirement to seek approvals for extension requests, implemented by the Chief Psychologist, applied to all employees and not just to Complainant. The AJ further found credible testimony from Chief Psychologist that his delay in completing Complainant’s evaluation was attributed to “procrastination” and not discrimination. The also noted that Complainant’s evaluation reflected improvement, which undermined Complainant’s argument that her evaluation was lowered. Regarding Complainant’s harassment claims, the AJ determined that Complainant did not prove that the Chief Psychologist’s actions towards her were attributed to her sex, race, or retaliatory amins. In pertinent part, the AJ explained that testimony reflected that Complainant and other employees were uncomfortable with the Chief Psychologist’s management style. On May 4, 2021, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant argues in pertinent part, through counsel, that the AJ failed to acknowledge that Complainant participated in EEO activity when she initiated EEO counselor contact regarding the instant formal complaint on or about Oct 2, 2017. Complainant asserts that she was subjected to retaliatory harassment with the Chief Psychologist began to bully her and micromanage her work in early November 2017, all of which started after Complainant had initiated EEO Counselor contact the month prior. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). Disparate Treatment - Claims 1, and 3 - 5 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco 2021003548 4 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ correctly determined following a hearing that the Agency provided legitimate, nondiscriminatory reasons for its actions. Complainant testified, during the hearing, that her primary Forensic Psychologist duties required that she evaluate inmates to determine competency to stand trial, mental state, and suitability of placement at the prison general population. Complainant explained that after completion of the evaluations, she would submit a report to federal court by an indicated deadline. Complainant indicated that her once amicable relationship with the Chief Psychologist began to deteriorate beginning in during the summer of 2017. Specifically, Complainant identified several alleged incidents that ultimately resulted in her initiating EEO Counselor contact on October 2, 2017. Because many of these pre-EEO counseling incidents overlap with the incidents Complainant subsequently identified in her formal complaint, we address each of these incidents in this decision. First, Complainant alleged that during the summer of 2017, her intern raised work safety concerns to the Clinical Director in response to Complainant’s efforts to address an air condition issue in the building. Complainant explained that the air condition stopped working and she resorted to opening as many doors as she could and turned off the overhead lights in the hallway to reduce the temperature. The Clinical Director discussed the matter with the Chief Psychologist. 2021003548 5 Thereafter, Complainant indicated that the Chief Psychologist began changing what duties Complainant could assign to the interns as they had complained about their assignments, in addition to the initial matter regarding turning off the overhead lights.4 Second, Complainant alleged that the Chief Psychologist directed the Assistant Warden to disapprove her extension requests. Complainant explained that an extension request was a “regular practice for every forensic inmate [who] came in” to ensure enough time for completion of the inmate’s evaluation, and she had requested extensions since she began with the Agency in 2004. Complainant further explained that while the Chief Psychologist was out of town, she submitted extension requests for six inmates who arrived at the prison. Only three of her requests were approved, however. Complainant indicated that she later learned in September 2017 mediation, that the Chief Psychologist had instructed the Assistant Warden not to approve her requests because extension requests were unnecessary. Third, Complainant explained that the Chief Psychologist assigned her to archive forensic records even though she had to prepare to leave to teach a crisis management class the following week. Although Complainant acknowledged that she received assistance from the interns to complete this task, Complainant noted that the Chief Psychologist never assigned the Co-worker- 1 this task. Consequently, Complainant felt as though the Chief Psychologist was singling her out. Fourth, Complainant expressed disagreement with the Chief Psychologist’s September 2017 decision to lock the door on the hallway of each room which meant that inmates could be locked in the same hallway as staff, including Complainant. Complainant explained that since 2004, the hallway doors were never locked out of safety concerns. Fifth, Complainant stated it was during a mediation with the Associate Warden regarding a complaint that Complainant was wearing inappropriate clothing at work that Complainant learned that the Chief Psychologist had instructed the Associate Warden to deny her extension requests. Although the culmination of all of these alleged events led Complainant to conclude that she was being singled out because of her sex and race, our review of the record fails to indicate that discriminatory animus played a role in management’s actions. In pertinent part, Complainant acknowledged during the hearing that the archiving assignment was originally assigned to her in June 2016, and because she did not complete the project at the time, the Chief Psychologist followed up on the status. Complainant further admitted that about half of the files that needed archiving were hers, and the other half of files belonged to other psychologists who had left the Agency. 4 The Chief Psychologist explained that the interns complained that Complainant had them primarily conducting IQ tests. Contrary to Complainant’s opinion, the Chief Psychologist asserted that he felt that these tests were not required for every forensic evaluation. 2021003548 6 Consequently, none of the files needing archiving belonged to Co-worker-1. Specifically, Co- worker-1 was a new hire, and was still completing her orientation and training period in June 2016. Additionally, Complainant acknowledged during the hearing that the Chief Psychologist’s directive to lock the door resulted from a new employee (female) asserting that she felt unsafe. Regarding the extension requests, Complainant acknowledged that the Chief Psychologist wanted Complainant, and Co-worker-1, to provide justification (good cause) for the extension which was statutorily required. Complainant further acknowledged that when she provided justification, the majority of her requests were signed off and moved along by the Chief Psychologist. Regarding copying the Chief Psychologist on communications with the Central Office, Complainant acknowledged that this directive applied to all staff and was not specific to her.5 Finally, regarding Complainant’s allegation that the Chief Psychologist complained about her wearing inappropriate clothing to work, the record reflects that Complainant testified that she wore shoes (including boots, flats, and heels) that she could run in in case of emergency and dressed appropriately at work. However, a Forensic Evaluator (female) acknowledged that on one occasion, she informed Complainant, who was unaware, that the blouse she was wearing was very thin such that a person could see through it when Complainant stood in the light. The Forensic Evaluator indicated that Complainant immediately corrected the issue by putting on a jacket. Additionally, the Chief Psychologist acknowledged that he had addressed his concerns with Complainant’s attire, and he also addressed concerns he had with the work attire of an intern (male). Nevertheless, Complainant still attributed these actions to her race and sex and initiated the EEO complaint process on October 2, 2017, when she contacted an EEO Counselor. Subsequently, Complainant filed the instant complaint where she alleged that she was subjected to racial, sex, and retaliatory discrimination. Specifically, Complainant asserted that the Chief Psychologist began to retaliate against after she contacted the EEO Counselor as stated in her formal complaint. 5 The Chief Psychologist testified that he established this directive in an effort to reduce his staff members from receiving conflicting information. The Chief Psychologist noted that his staff would contact Central Office about various work-related issues, but often would not consult the subject matter expert on the matter and would rely on advice from people they knew at Central Office. In one instance, the Chief Psychologist explained that he had two staff members call two different people at Central Office regarding a similar matter and received conflicting/opposite answers. 2021003548 7 While Complainant could not confirm when the Chief Psychologist was aware of her participation in the EEO pre-complaint process, she believed that he was aware of her EEO activity after he issued several mandates during a November 2017 meeting that addressed many issues Complainant had previously complained about.6 However, the Chief Psychologist testified at the hearing that he did not become aware of Complainant’s complaint until May 2018 when he received the interrogatories. Evaluations and Ratings Complainant alleged that the Chief Psychologist reduced her evaluation ratings for both the first and second quarter even though Complainant indicated that her work had not changed during this period.7 Specifically, Complainant stated that previously she had received an Exceeds or Outstanding rating on all of her performance elements. However, the record indicates, as later confirmed by Complainant’s testimony at the hearing, that Complainant’s performance rating actually improved in the second quarter evaluation. In her first quarter evaluation, Complainant scored “Satisfactory” for elements one and two, and she scored “Exceeds” for elements three and four. In contrast, her second quarter evaluation reflects that she scored “Exceeds” for elements one and two; “Satisfactory” for element three; and “Outstanding” for element four.8 Complainant indicated that the Chief Psychologist also issued her a letter of counseling on November 30, 2017, regarding issues in forensic summary entries and entering diagnostic information into the electronic record. By her own admission at the hearing, Complainant acknowledged that some of her entries were untimely. Nevertheless, the record reflects as Complainant indicated, and the Chief Psychologist confirmed, that the letter of counseling was not a disciplinary action. Ultimately, Complainant acknowledged that for her final April 2019 evaluation, the Chief Psychologist rated her “Outstanding” on two elements and “Exceeds” on the other two elements. Regarding the delay in receiving her first and second quarter performance evaluations at the same time, the Chief Psychologist attributed this delay to “procrastination.” 6 Complainant stated that the Chief Psychologist issued several mandates regarding locking the hallway doors and requiring staff to submit written reports of conversations with anyone outside Central Office. Complainant explained that these mandates were specific to incidents that she was directly involved in, and she had colleagues who worked in the Central Office who she would sometimes consult with regarding work-related questions. 7 Complainant indicated that she received the first and second quarter evaluations at the same time and if the Chief Psychologist had informed her of her concerns in advance, she would have worked hard to improve for her second quarter evaluation. 8 Despite the favorable ratings reflected in her second quarter evaluation, Complainant asserted that the verbiage included her evaluation was not favorable. 2021003548 8 December 2017 Meeting Complainant explained that staff was in the process of conducting an operational review to ensure that staff members were meeting all policy standards. During this review, Complainant asserted that the Chief Psychologist informed her that he was auditing the forensic folders she was working on and because of the audit, she would no longer have access to the files. Complainant further explained that the Chief Psychologist singled her out and blamed her for not following his directive about forensic extension letters. Complainant also stated that during the meeting, she disagreed with the Chief Psychologist’s instruction for the psychologists to estimate intelligence on evaluations to save time. Complainant further stated that the Chief Psychologist accused her of being “unethical” and violating the inmate’s civil rights by requesting evaluation extensions. The Chief Psychologist acknowledged that during the meeting, he discussed concerns he had about forensic summary evaluations not being timely documented after staff from the Central Office notified him of this issue. As a solution, the Chief Psychologist stated that the plan was for staff to complete the summary evaluations three working days before the inmate’s release from the facility. The Chief Psychologist also acknowledged that he directed his concerns about extension requests for forensic reports. Specifically, the Chief Psychologist asserted that there should be good cause, as specified in the relevant statutory guidance, for an extension opposed to the granting of routine extensions. However, the Chief Psychologist noted that his request for good cause was not well received by Complainant as she became “argumentative.” The Chief Psychologist further denied raising his voice at Complainant or calling her “unethical.” He did indicate, however, that a routine procedure for granting extension requests without good cause could potentially be viewed as unethical. The Chief Psychologist further clarified that both Complainant and Co-worker-1 had been routinely requesting extensions and he was attempting to establish a new policy for these requests, and he did not direct the issue solely toward Complainant. Regarding the audits, the Chief Psychologist explained that audits at the local level and audits conducted by Central Office were common. The Chief Psychologist further acknowledged that he had requested a staff psychologist audit summaries conducted by Complainant and Co- worker-1. Although the staff psychologist was less experienced than Complainant, the Chief Psychologist indicated that it was “common practice” for the for a “less experienced psychologists to be heavily involved in auditing” because these individuals need to learn the policy, and to understand the systematic organization of the clinical responsibilities. Specific to the operational review Complainant asserted that the Chief Psychologist denied her access to her files, the Chief Psychologist explained that because he was reviewing the cases, it was not necessary for Complainant to review those cases as well. Additionally, the Chief Psychologist explained that Complainant was never disciplined following the review as there was no “appreciable finding” from the review. 2021003548 9 Delayed Forensic Reports (March and April 2018) Complainant indicated that in March 2018, the Chief Psychologist caused her to miss her deadline to submit the forensic report to federal court. Complainant explained that the Chief Psychologist was “frequently out of town” which resulted in the reports sitting on his desk instead of being forwarded up to the next level of review. Complainant asserted that her reports were delayed on more than one occasion. Specifically, Complainant stated that the Chief Psychologist withheld an April 2018 report and did not sign it until after the court submission deadline had passed. However, the Chief Psychologist denied ever purposely delaying Complainant’s March 2018 or April 2018 report. The Chief Psychologist explained that it was in his best interest to avoid late reports because the Warden could be held in contempt of court. The record indicates that Complainant routed a forensic report to the Chief Psychologist on Thursday, March 8, 2018, that was due to court on Monday, March 12, 2018. The record further indicates that Complainant routed a forensic report to the Chief Psychologist on Friday, April 20, 2018, and the report was due on Monday, April 23, 2018. In response, the Chief Psychologist testified that he had a policy that staff submit reports to him the Tuesday before a deadline. In both instances, Complainant did not comply. Consequently, the Chief Psychologist categorically denied ever purposefully delaying a report and indicated that such action would not have been in anyone’s interest including his own interests or those of the Warden or the Agency. The Chief Psychologist indicated that his reasons for requiring judication/good cause for any extension requests of the report deadlines was an attempt to avoid further delay of the reports to federal court. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination or retaliation. Hostile Work Environment - Claim 2 To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. 2021003548 10 Complainant must also prove that the conduct was taken because of her protected basis - in this her race, sex, and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as discussed below, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, sex, and reprisal for prior protected EEO activity. As an initial matter, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1, and 3 - 5 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, sex, or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Complainant did not establish a case of discrimination or retaliation on any of her alleged bases. The record indicates, as explained above, that Complainant disagreed with the Chief Psychologist’s managerial decisions/changes at the correctional facility, many of which applied to all staff and not solely Complainant.9 Although we note that there is testimony in the record alleging that the Chief Psychologist made inappropriate sexual comments, the Chief Psychologist denied these allegations.10 Further, we conclude that a case of harassment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases or reprisal for protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Union Representation Claim Complainant alleged that she was subjected to discriminatory and retaliatory harassment when management denied her union representation during her performance evaluation with the Chief Psychologist. and when management did not answer the union president’s question regarding Complainant. 9 The record indicates that the Chief Psychologist explained, contrary to Complainant’s assertions, that he gathered statements from other employees to demonstrate that he was not targeting her or treating her differently from everyone else. 10 Specifically, the Chief Psychologist denied ever making any statements that his wife was better looking than other female staff at the correctional facility. The Chief Psychologist further denied making any derogatory comments about the body of a Psychology Technician (white, female). The record indicates that the Psychology Technician indicated that she had filed an EEO complaint against the Chief Psychologist alleging that he retaliated against her after her husband had filed his own complaint against the Chief Psychologist. Additionally, testimony from the Drug and Abuse Program Coordinator (white, female) indicated that she felt as though the Chief Psychologist had harassed her in the past and felt that she was being “targeted for some reason.” Ultimately, she did not file an EEO complaint because she “didn’t know what the basis of that targeting was.” 2021003548 11 Generally, collateral attacks to other administrative proceedings fail to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). To the extent that Complainant's harassment claim encompasses matters related to union representation and involvement, we note that the issue of whether Complainant was purportedly denied union representation is covered by the collective bargaining agreement, and the EEO complaint process has no jurisdiction over such matters. CONCLUSION We AFFIRM the Agency’s order affirming the AJ’s decision because the preponderance of the evidence of record does not establish that unlawful discrimination or retaliation occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021003548 12 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. 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 February 2, 2023 Date