[Redacted], Lidia B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020000398 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lidia B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020000398 Agency No. 4C-250-0031-18 DECISION Complainant timely 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 August 13, 2019, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant failed to establish that she was subjected to disparate treatment and harassment based on sex (female). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier Assistant (CCA) at the Agency’s Huntington Post Office in Huntington, West Virginia. On September 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) 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. 2020000398 2 1. on dates to be specified since June 2017, Complainant was subjected to derogatory comments from coworkers and management did nothing; 2. on dates to be specified, coworkers spread rumors about Complainant and management did nothing; 3. on December 13, 2017 and January 4, 2018, Complainant was charged Absent Without Leave (AWOL); and 4. on dates to be specified since March 2018, management spoke about Complainant’s medical information to her coworkers. Claim 1 Complainant alleged that a Supervisor (S1) failed to take action when Complainant was subjected to derogatory comments from coworkers. Complainant stated that she was often subjected to derogatory comments from carriers (C1 and C2) and others. Complainant claimed that they would spread rumors about her and another coworker which, Complainant stated, she tried to ignore. Complainant did not recall the exact dates the comments were made. Complainant alleged that C1 thanked her for “the back rub” even though no back rub occurred; and that in the same conversation, C1 asked Complainant if she wanted to rub the front as he thrust his penis towards Complainant. Complainant alleged that C2 sent her a message on Facebook after work hours asking her in the message if Complainant wanted to see a picture of C2’s penis. Complainant stated that when she responded in the negative, C2 asked Complainant if she was sure, to which Complainant again responded in the negative. Complainant stated that after the alleged incident, C2 left her alone. Complainant stated that many people started rumors that she and an unidentified coworker (C3) were having sex, which also never happened. Complainant asserted that the rumors continued even after she left the Agency. Record evidence reflected that Complainant voluntarily resigned with May 30, 2018, as her last day in a pay status. Complainant asserted that the derogatory statements did not need to be reported because on one occasion, it happened in front of S1, who, Complainant alleged, stated, “That's sexual harassment" and walked away. Complainant stated that she verbally reported the derogatory comments to management after that occasion. Complainant stated that she was told many times by employees that if she could not take a joke, then it was not the right place to work. Complainant asserted that the comments began a few weeks after she started on the job and continued to get worse, stating that the derogatory comments occurred a few times a month. 2020000398 3 Complainant stated that she told C1 "no" many times, but he continued to make comments. Complainant asserted that she tried to ignore the comments until it became too much and then when it happened in front of her supervisor and he did nothing, she eventually quit. C2 denied awareness of any derogatory comments made to Complainant or Complainant complaining about any derogatory comments being made to her. He asserted that he did not recall sending Complainant derogatory messages after hours through Facebook. C2 stated that he was never approached by management with respect to the allegation Complainant levied against him, asserting that he became aware of the allegation only when he received the request for affidavit in the instant complaint. He was sure he would have been reprimanded on the spot if he made a statement that was of a harassing nature. C1 denied awareness of Complainant reporting any derogatory comments or allegations to coworkers or management, asserting that he did not recall hearing any derogatory comments. C1 stated that he did not recall ever making the statements Complainant attributed to him. C2 asserted that the allegation was a wild and crazy accusation. Manager, Business Mail Entry (MBE1) and another supervisor (S2) provided witness testimony, denying awareness of Complainant’s harassment allegations, asserting that they would have taken action to address the situation had Complainant reported the alleged incidents. Both MBE1 and S2 also denied awareness of S1 indicating that sexual harassment occurred on the one occasion attributed to S1 by Complainant. The record indicated that S1 did not provide an affidavit as he was on long-term military leave and would not return until 2020. All the respondents, including C1 and C2, asserted that they only became aware of Complainant’s allegations when contacted regarding the instant complaint. Claim 2 Complainant alleged that S1 and S2 were the management officials who failed to take action when coworkers spread rumors about Complainant. Complainant stated that she verbally reported the rumors after the rumors had spread. Complainant asserted that S1 asked her once if she and a coworker (it is unclear if this was C3) were involved because that was what S1 had heard. Otherwise, Complainant stated, there was no other response from management to her report of the rumors. Complainant stated that she worked at her job location for almost two years, and that the rumors began a few months after she started. She asserted that many people spread the rumors because people would ask and say they heard things about her being sexually involved with a coworker. Complainant asserted that she asked her coworkers to stop spreading the rumors because they were not true, but the rumors continued. Complainant stated that management even held a morning meeting about rumors being spread and that it needed to stop because it would cause trouble, but the rumors did not stop. 2020000398 4 Complainant asserted that she did not believe her sex was a factor in management's failure to take action. S2 stated that he was told well over a year prior to the period at issue that Complainant was dating C3, asserting his belief that the information was widely known or believed, and that he did not concern himself with employees who were dating. S2 and MBE1 asserted that Complainant never reported that coworkers were spreading rumors that she and a coworker were sexually involved and reiterated that there was no harassment of which management was aware. Both C1 and C2 provided witness testimony, denying awareness of anyone spreading rumors about Complainant. C1 stated that the only time he recalled anything of that nature was when he had a conversation with Complainant and she informed C1 that she had been partying and hanging out with an identified male coworker, not C3. C1 asserted that he did not know if the information was true or false. Claim 3 Complainant stated that she did not remember the dates on which she was charged AWOL, asserting that the dates at issue were her days off. Complainant stated that MBE1 did not like Complainant and would not remove the AWOL from Complainant’s file. Complainant asserted that management tried to call her in on her only day off, but Complainant did not answer. She stated that her union representatives told her she did not have to answer and come in if it was her day off. Complainant stated that she spoke with MBE1 and S2 about the AWOL. Complainant stated that MBE1 denied not liking Complainant and blamed Complainant for the AWOL. MBE1, who was the Postmaster at the time, stated that another supervisor (S3) was responsible for charging Complainant AWOL on the two dates at issue, explaining that S3 was in charge of attendance control. MBE1 stated that her only role in the alleged action would have been if she concurred on discipline for attendance, asserting that the attendance records indicated that for both dates, Complainant's leave was unscheduled and there was no call from Complainant. MBE3 stated that there were instances when a charge of AWOL is warranted according to Handbook F-21, Section 393 which provides, “Absence without leave (AWOL) is a non-pay status resulting from a determination that no kind of leave (including LWOP) can be granted, either because the employee did not obtain advance authorization for the absence or the employee's request for leave was denied.” MBE1, affirmed by S3, explained that employees designated as CCAs, like Complainant, were a flexible workforce and did not have scheduled days off. MBE1 asserted that the CCAs were to be available to work every day of the week, including Saturday and Sunday. MBE1 asserted that Complainant’s sex was not a factor in any decision she made with respect to Complainant being charged AWOL. MBE1 added that during the same time period, a male CCA (C4) was also charged AWOL, explaining that at the time the Huntington Post Office employed close to 100 employees, many of whom were absent from work and had scheduled leave. 2020000398 5 MBE1 stated that there were other employees who were charged AWOL during the time at issue, asserting that Complainant was not the only employee charged AWOL. MBE1 noted that management progressively tried to improve and correct Complainant's attendance, i.e., unscheduled absences. She stated that Complainant wanted special exceptions because Complainant was a single parent who wanted to go back to school, and that management told Complainant they could not afford Complainant the desired special exception. MBE1 stated that during each progressive disciplinary action (including a letter of warning dated February 7, 2018, seven-day paper suspension dated April 5, 2018, and a 14-day and paper suspension dated May 8, 2018), Complainant was given a pre-disciplinary interview (PDI), and that Complainant never mentioned that she was being harassed or that she was working in a hostile work environment. MBE1 asserted that Complainant was given an additional PDI on May 25, 2018, for three more instances of unscheduled absences, adding that management sent a discipline request to Labor Relations for a removal but the removal was never issued because Complainant quit via text. MBE1 asserted that after sending Complainant a certified letter on June 7, 2018, with respect to accepting her resignation, Complainant sent a text stating she did not so much resign as quit because of harassment and violation of her Health Information Portability and Accountability Act (HIPAA) rights. MBE1 stated that that was the first time she recalled hearing anything regarding Complainant’s allegations. S2 provided supporting testimony, adding that Complainant called off sick 12 to 15 times over a three-month period, including several days when she was scheduled to work and did not show up without calling. Claim 4 Complainant alleged that S2 spoke about her medical information with her coworkers. Complainant asserted that S2 made others aware of why Complainant left early (implicitly on one occasion) even though it was a personal, private matter. Complainant asserted that when she came back to work, some of her coworkers knew why she had left. Complainant stated that she did not know the exact date the alleged incident occurred, stating that she was not given an explanation as to why the information was discussed, indicating that management had denied that the incident had occurred. S2 did not recall Complainant having a medical condition that would have been shared with anyone, asserting that Complainant's sex was not a factor in any decision he made in his supervision of or interaction with Complainant, including processing medical information. MBE1 provided witness testimony, stating that Complainant told management that she could not carry a handoff Complainant was scheduled to carry after her regular assignment because Complainant was going home because she had a tick on her. 2020000398 6 MBE1 asserted that the mail that Complainant did not deliver was split among returning carriers who were not expecting to have to carry the mail that was originally assigned to Complainant. MBE1 indicated that when a carrier expressed dissatisfaction with having to deliver mail originally assigned to Complainant, management explained to the carrier that Complainant went home. MBE1 asserted that she was unsure if Complainant’s going home early would be considered disclosing medical information or if it was shared, but that management’s explanation to the carriers would have been only to state why that carrier was being assigned work that was scheduled for Complainant because Complainant went home. MBE1 asserted that Complainant's sex was not a factor in any decision in her supervision of or interaction with Complainant. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her statement in support of her appeal, Complainant reiterates her harassment allegations, asserting that she did not request that her case be decided by the post office or anyone affiliated with them. Complainant states that she timely returned required forms to the Agency stating that she wanted the instant complaint to be decided by a judge. She also asserts that she has witnesses who have agreed to provide supporting testimony. The Agency did not submit an Appeal Brief. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of 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”). 2020000398 7 ANALYSIS AND FINDINGS Post-Investigation Elections and/or Lack Thereof At the onset, we note Complainant’s allegation on appeal that she had timely requested a hearing. Record evidence, however, reflects that Complainant was presented with a copy of the ROI on May 30, 2019. Complainant had 30 days from that date to request either a hearing or a FAD. See 29 C.F.R. 1614.108(f). This means that Complainant’s request expressing her preference for an AJ hearing would have been received by the Agency on June 29, 2019. A careful review of the record, including the Commission’s electronic submission system, however reveals no evidence that Complainant submitted a request for a hearing to the Agency. Complainant did not present any evidence such as copies of the forms she allegedly submitted indicating her preference for an AJ hearing over a FAD in her appeal. Nor did Complainant identify the individual(s) to whom she submitted the forms. Complainant also contested the witness testimonies, asserting that she has witnesses who could corroborate her allegations. However, Complainant failed to present any evidence to demonstrate that these new witnesses were unavailable during the investigation process. Had Complainant timely requested a hearing, she would have been able to request witnesses to testify at the hearing. See 29 C.F.R. § 1614.109. We can only evaluate the facts based on the weight of the evidence presented to us. As explained below, we find that Complainant has failed to meet her burden to prove, by a preponderance of the evidence, that she was subjected to discrimination. Disparate Treatment - Claim 3 To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination and hostile work environment based on sex; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. 2020000398 8 With respect to Claim 3, MBE1, affirmed by S3, stated that Complainant was charged AWOL consistent with applicable postal policy because Complainant did not request leave and failed to show up or call off even though she was scheduled to work on the two dates at issue. Importantly, MBE1 stated that other employees were also charged AWOL for similar infractions, identifying C4, a male comparator as an example. Complainant did not refute management’s explanations, nor did Complainant identify any similarly situated male coworkers who were not charged AWOL when they took time off without approved leave. The Commission has held that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995). Therefore, Complainant’s allegation fails. Sexual Harassment - Claims 1 and 2 In Claim 1, Complainant has alleged that on one occasion after work hours, C2 made a derogatory comment when C2 asked Complainant in a Facebook message if she was interested in seeing C2’s penis. Complainant also alleged that on another occasion, C1 commented about a back rub and asked Complainant if she wanted to rub the front while C1 was allegedly thrusting his penis towards Complainant. Finally, in Claim 2, Complainant alleged that her coworkers spread rumors that Complainant was having a sexual relationship with a coworker. Complainant also alleged that management failed to take any action, indicating that S1 had in fact witnessed one of the alleged incidents, stated that it was sexual harassment, and walked away. Therefore, Complainant asserted, she did not report subsequent incidents of harassment. Complainant may establish a violation of Title VII by demonstrating that she was subjected to sexual harassment that was severe or pervasive enough to create a hostile work environment. Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57, 62-67 (1986). To establish the existence of sexual harassment based on a hostile work environment, Complainant would have to show: that she belongs to a protected gender group; that she was subjected to unwelcome conduct of a sexual nature based on her sex; that the harassment created an intimidating, hostile or offensive work environment; and that the agency knew or should have known of the harassment, but took no prompt remedial action. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). We find that Complainant has shown that she is a member of a protected group and asserted that she was subjected to unwelcome conduct. However, we find that Complainant has not provided sufficient evidence to establish that all the alleged events occurred. Upon review, we find that Complainant failed to substantiate her allegations against C1 and C2 with supporting evidence. Although Complainant asserted that C1 and C2 engaged in conduct that created a hostile work environment, C1 and C2 denied that the alleged events occurred. Complainant did not provide any evidence to substantiate her assertion or overcome the denials by C1 and C2. For example, Complainant did not provide any evidence such as a copy of the Facebook message in which C2 asked Complainant if she was interested in seeing C2’s penis. 2020000398 9 C1 also denied asking Complainant if she would like to rub the front (indicating C1’s penis); and again, Complainant presented no evidence to refute his denial. We note that Complainant stated that S1 heard either C1 or C2 and said, “that’s sexual harassment” and walked away. However, S1 was unavailable during the investigation due to military service; and did not provide any statements. Therefore, Complainant’s allegation is not substantiated with corroborating evidence regarding S1’s knowledge of the alleged sexual harassment. C1 and C2 also denied that this alleged incident occurred. Furthermore, Complainant could have requested a hearing to further develop the record or have an AJ issue credibility determination. Because Complainant did not request a hearing or avail herself of the discovery process which would have allowed for an examination of the credibility or lack thereof of the Agency’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that C1 and C2 engaged in conduct as alleged in Claim 1. Likewise, we find that Complainant failed to substantiate her remaining sexual harassment allegations involving vulgar, crude, and offensive language by coworkers with corroborating evidence; and her statements alone, without more evidence of abusive treatment, is insufficient to sustain her sexual harassment allegations. See Policy Guidance on Current Issues of Sexual Harassment, No. N-915-050, at 14 (Mar. 19, 1990) (sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment). As to Claim 2, we find that the record demonstrates that coworkers spread rumors about Complainant. This claim was corroborated by witness testimony from S2, who acknowledged hearing about Complainant’s relationship with a coworker; and who indicated that the information was widely known or believed. C1 also stated that Complainant had told him about partying with a coworker. We however find that the record does not demonstrate that the rumors unreasonably interfered with Complainant's job or resulted in an intimidating, hostile, or offensive work environment; and that allegation fails. See Cornell-White v. Dep’t of Transp., EEOC Appeal No. 0119982261 (Mar. 27, 2001) (positing that a rumor by itself was not enough to sustain a charge of hostile environment harassment where Complainant alleged that rumor was spread about her having an affair with her supervisor). We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that she was subjected to sexual harassment. Other Harassment - Claim 4 Medical Disclosure Although Complainant raised this event in support of her claim of harassment, Complainant has alleged that the Supervisor's disclosure of her disability constituted a claim of improper medical disclosure. We note that such a claim is an allegation of a violation of the Rehabilitation Act. 2020000398 10 Title I of the Americans with Disabilities Act of 1990 (ADA) requires that all information obtained regarding the medical condition or history of an applicant or employee must be maintained on separate forms and in separate files and must be treated as confidential medical records. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C); 29 C.F.R. § 1630.14.2 These requirements also extend to medical information that an individual voluntarily discloses to an employer. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (Jul. 26, 2000) (Guidance I). The confidentiality obligation imposed on an employer by the ADA remains regardless of whether an applicant is eventually hired or the employment relationship ends. See ADA Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations, at 18 (Oct. 10, 1995) (Guidance II). These requirements apply to confidential medical information from any applicant or employee and are not limited to individuals with disabilities. See Higgins v. Dep't of the Air Force, EEOC Appeal No. 01A13571 (May 27, 2003): Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000); Bennett v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (Jan. 11, 2011), req. for recon. den'd, EEOC Request No. 0520110302 (Apr. 29, 2011). Improper Agency disclosure of such medical information constitutes a violation of the Rehabilitation Act. Vale v. U.S. Postal Serv., EEOC Request No. 05960585 (Sept. 5, 1997). The ADA and its implementing regulations list the following limited exceptions to the confidentiality requirement: supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and government officials investigating compliance with this part shall be provided relevant information on request. 42 U.S.C. §§ 12112(d)(3)(B),(4)(C); 29 C.F.R. § 1630.14; Guidance I, at 4. The Commission has held that the disclosure of medical information may constitute a per se violation of the Americans With Disabilities Act (ADA) and the Rehabilitation Act where confidential medical information is disclosed to unauthorized persons. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140480 (2015) (finding per se violation of the Rehabilitation Act where co-worker was told by a supervisor that Complainant suffered from a breakdown); Haydee A. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120132668 (Jan. 19, 2016) (violation of Rehabilitation Act where Complainant's supervisor revealed Complainant's medical information regarding her need for surgery to unauthorized persons); Buster D. v. Dep’t of Agric., EEOC Appeal No. 0120141171 (March 11, 2016) (violation of Rehabilitation Act where agency disclosed Complainant's medical diagnosis to the Chief Union Steward, who did not have a need to know). Here, the evidence does not support a finding that a violation occurred when S2 allegedly shared Complainant’s medical information with coworkers. 2 We note that requirements of the Americans with Disabilities Act (ADA) apply to cases filed pursuant to the Rehabilitation Act. See 29 C.F.R. §1614.203(b). 2020000398 11 MBE1 explained that a carrier who had expressed dissatisfaction with having to perform work assigned to Complainant had been told that Complainant had gone home. Complainant did not refute this explanation; nothing in the explanation constitutes the kind of violation Complainant indicated; and Complainant’s confidential medical information was not shared. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (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. 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). 2020000398 12 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: _________________________n M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 24, 2021 Date Copy with citationCopy as parenthetical citation