[Redacted], Luvenia S., 1 Complainant,v.Isabel Casillas Guzman, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2020003753 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luvenia S.,1 Complainant, v. Isabel Casillas Guzman, Administrator, Small Business Administration, Agency. Appeal No. 2020003753 Agency No. 08-18-075 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 April 15, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist at the Agency’s Organizational Effectiveness Division, Office of the Chief Human Capital Officer in Washington, D.C. Complainant stated that she was out of the office due to glioblastoma multiform brain cancer (GMB), and that when she returned to work in November 2015, she was provided the ability to telework as a reasonable accommodation.2 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’s husband informed the EEO Investigator that Complainant lost her “executive functions” and was unable to provide an affidavit or documents. ROI Exhibit E1. As such, 2020003753 2 Complainant averred that throughout 2016 and 2017, she and her management officials discussed her medical condition and need for accommodations. Complainant claimed that in October 2017, she was denied her reasonable accommodation request for Computer/Electronic Accommodation Program (CAP or CAPTEC) equipment. Complainant stated that in December 2017, she provided medical documentation to her first-line supervisor (S1) (age 52, no disability), who requested updated medical documentation in March 2018 and June 2018, despite no changes to Complainant’s condition. Report of Investigation (ROI) Exhibit A1 at 6-7. S1 stated that Complainant received an unacceptable performance rating for fiscal year 2016, and she was placed on a performance improvement plan (PIP) on June 27, 2017. S1 Affidavit at 32- 3, 36. On October 12, 2017, S1 issued Complainant a Letter of Warning for sleeping on the job. S1 noted that she had previously verbally counseled Complainant for sleeping, and that it was S1’s expectation that Complainant not sleep. ROI Exhibit D7 at 70-1. Complainant averred that on or about August 9, 2018, S1 issued her a proposed suspension, and that she requested an extension to respond to the proposal. Complainant claimed that as of August 22, 2018, she had not received a response to her two extension requests. ROI Exhibit A1 at 7. S1 stated that Complainant retired in November 2018. S1 Affidavit at 85. On December 14, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of disability (GMB) and age (63), and in reprisal for prior protected EEO activity (requesting a reasonable accommodation), when: 1. as of August 22, 2018, Complainant’s two requests for extensions to respond to her Letter of Proposed Suspension had not been addressed; 2. on or about August 9, 2018, Complainant received a Notice of Proposed Suspension related to her disability and treatment for disability; 3. in March and June 2018, management repeatedly requested updates regarding Complainant’s medical condition; 4. on October 12, 2017, Complainant received a Letter of Warning for activities related to her disability; 5. on or around October 2017, Complainant was denied her reasonable accommodation request for CAPTEC equipment to help her accomplish her work; 6. during fiscal year 2017, Complainant was placed on a PIP, despite being granted some reasonable accommodations and those accommodations were not taken into proper consideration; and Complainant’s statements are from her formal EEO complaint and other documents in the record. 2020003753 3 7. since on or about November 2015, Complainant was granted a reasonable accommodation and was able to work from home, but the accommodation was terminated at a later date. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish that she was subjected to an adverse action for claim 1 because she was not denied a term, condition, or privilege of employment; and she did not make two extension requests. The Agency then found that Complainant established a prima facie case of discrimination based on age and disability, and in reprisal for prior protected EEO activity, for claims 2, 4, and 6, and that management officials provided legitimate, nondiscriminatory reasons for their actions. The Agency determined that Complainant did not show that the reasons were pretexts for discrimination. For claim 3, the Agency found that S1 made several requests for Complainant’s medical documentation to address Complainant’s need for accommodations based on current assessments of Complainant’s limitations, which was part of the interactive process and necessary given Complainant’s demonstrated failure to accomplish the essential functions of her position with her current accommodations. Regarding claim 5, the Agency determined that S1 stated that Complainant’s CAPTEAC request was never denied. Rather, S1 provided Complainant with the necessary paperwork, and Complainant set up an assessment but failed to take necessary action to obtain the equipment. The Agency also determined that there was never a point when fulltime telework was not available to Complainant, who came into the office on her own volition. The Agency further found that Complainant did not establish that she was harassed because the allegedly discriminatory events were not motivated by unlawful discrimination, and none of the actions, either individually or collectively, could be considered severe or pervasive enough to establish a hostile work environment. The Agency concluded that Complainant failed to prove that she was subjected to discrimination or harassment as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency opposed Complainant’s appeal. 2020003753 4 CONTENTIONS ON APPEAL Complainant’s Contentions As an initial matter, Complainant states that she is not asking the Commission to consider her age discrimination claim or claim 1.3 Through her attorney, Complainant argues that the record is insufficient because it is missing important documents and evidence. For example, Complainant notes that the PIP; a copy of the initial decision granting a reasonable accommodation; and a December 8, 2017 letter from Complainant’s doctor were not included in the ROI. Complainant asserts that, by failing to include highly relevant documents and evidence, the Agency failed to conduct an impartial and appropriate factual record. To the extent that Complainant has these documents in her possession, she provides them on appeal. Regarding the proposed suspension, Complainant asserts that S1 knew that the stated charges were a direct result of her medical condition and/or the medication. Complainant also argues that S1 wrote that she took into consideration mitigating factors, but she only considered one mitigating factor of Complainant’s years of service and failed to consider other mitigating factors, such as Complainant’s past work performance. Complainant states that she could not control her falling asleep, nor could she always understand and follow directions or stop herself from engaging in behavior that was off-putting to some. Complainant also argues that, with the issuance of the notice of proposed suspension, this single incident alone is a viable claim for a hostile environment. Complainant asserts that she was retaliated against, discriminated against, and subjected to a hostile work environment when S1 repeatedly requested that Complainant provide additional medical document regarding her disability. Complainant argues that the requests for more personal medical documentation were in direct contravention of the EEOC’s Enforcement Guidance, which states that an employer cannot ask for documentation when the individual has already provided the employer with sufficient information to substantiate that she has a disability and needs the reasonable accommodation requested. Complainant states that the Agency noted that the frequency of these requests for medical documentation “depends on the pace of the change in the employee’s medical condition,” and that very little changed in Complainant’s medical condition, which generally only gets worse, not better. Complainant argues that the Agency failed to follow up with the CAP program office regarding the assessment that was done for Complainant and that, therefore, she never received any CAP equipment to help her accomplish her work. Complainant asserts that it was not her responsibility to follow up after the assessment was performed, and that instead, it was the responsibility of the CAP program office or other agency officials to follow up. 3 The Commission will not address claim 1 or Complainant’s claim of age discrimination in the instant decision based on her withdrawal of these claims on appeal. 2020003753 5 Complainant also argues that the Agency did not engage in interactive discussions to discuss the accommodations of memory aids, or alternatively, suggest a reassignment to a different, and perhaps, lower-level position. Complainant argues that S1’s actions in subjecting Complainant to two PIPs had no legitimate purpose, and that Complainant’s “inability to meet expectations was not discretionary,” and that she does not dispute that she had issues performing her work. Complainant requests that the Commission vacate the Agency’s final decision and remand this case to the Agency, either with instructions to issue a new decision in her favor, or to conduct a supplemental investigation. Agency Contentions The Agency asserts that the record was adequately developed, and a supplemental investigation is improper because there is sufficient information in the record. Specifically, the ROI contains four witness affidavits and the rebuttal statement by Complainant’s husband, in addition to numerous evidentiary exhibits. The Agency concedes that there are missing documents, but it argues the ROI contains sufficient evidence to allow a factfinder to determine whether the Agency discriminated against Complainant. In addition, Complainant had an opportunity to participate in the investigation and provide documents to the EEO Investigator, but she did not do so. Further, the Agency asserts that the missing documentation that Complainant provided on appeal does not provide any information that suggests, had the documentation been in the ROI, the findings would have been different. The Agency argues that it made the correct decision in its final decision in finding that Complainant did not show by a preponderance of the evidence that the Agency subjected her to discrimination or retaliation. The Agency contends that management officials provided legitimate, nondiscriminatory reasons for issuing the PIPs, the Letter of Warning, and the proposed suspension; and that Complainant did not establish pretext and rebut the Agency’s legitimate nondiscriminatory reasons. The Agency asserts that it granted Complainant’s reasonable accommodation request of fulltime telework in November 2015, which was in place until her retirement in November 2018. Regarding claim 5, the Agency notes that on July 10, 2017, Complainant had a CAPTEC assessment done, and she was provided specific instructions on how to submit a request for the equipment discussed: “To submit this request, please check first with your Supervisor or your Agency’s CAP POC, if applicable, to follow the correct next steps. You can use the below link to start your Online Request.” After Complainant completed the assessment, S1 advised Complainant to “submit the paperwork to the Agency’s Office of Civil Rights and Diversity and Inclusion,” but instead of timely following the instructions in July 2017, Complainant did not provide the paperwork until the end of September 2017, and by that point, the fiscal year 2017 CAP spending had been cut off. 2020003753 6 The Agency states that in March and June 2018, S1 sought updated medical information because Complainant was failing to perform the essential job functions with her current accommodations and the Agency sought to reinstate Complainant’s CAPTEC request. The Agency notes that Complainant fails to mention the March and June 2018 requests on appeal, and suggests that, because she provided medical documentation in 2015 and 2016, it was improper for the Agency to request any additional documentation because Complainant’s disability and need for reasonable accommodations was obvious and sufficient documentation was already provided. However, the Agency asserts that employers are permitted to request updated medical documentation when there is evidence that an employee’s condition or need for the accommodation has changed, or when an employee has a reasonable accommodation that is no longer effective. The Agency notes that it was not clear if Complainant submitted any medical documents in March 2018. S1 stated that Complainant did not always provide the requested medical information or resubmitted the same medical documentation previously provided. In addition, S1’s request for medical information in June 2018 stated that Complainant’s most recent medical documentation from December 2017 recommended that Complainant work from home on a fulltime basis, but that S1 did not believe that fulltime telework was appropriate based on continued issues with errors in Complainant’s work. The Agency requests that the Commission affirm its final decision finding no discrimination or harassment. 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 Chap. 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”). ANALYSIS AND FINDINGS Report of Investigation As an initial matter, Complainant argues that the record is insufficient because it is missing important documents and evidence, such as copies of her PIP; the initial decision granting her reasonable accommodation; and a December 8, 2017 letter from Complainant’s doctor. EEOC regulation states that an agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. 2020003753 7 Agencies may use an exchange of letters or memoranda, interrogatories, investigations, fact- finding conferences or any other fact-finding methods that efficiently and thoroughly address the matters at issue. 29 C.F.R. § 1614.108(b). Upon review of the record, we find that it contains sufficient information to make a determination on Complainant’s discrimination and harassment claims. Despite missing documents, we find that the responsible management officials responded to Complainant’s allegations, and that any evidence that was missing from the record does not change the determination that Complainant did not prove that the Agency subjected her to discrimination or harassment based on her disability, or in reprisal for her prior protected EEO activity. As such, we decline to grant Complainant’s request to remand the complaint for a supplemental investigation. Reasonable Accommodation In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). “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). 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. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to accommodate Complainant. For claim 7, S1 stated that Complainant was approved to telework fulltime; take extended breaks throughout the day; extend her workday to make up time for appointments or breaks; and the flexibility to start her workday as late as 9:00 a.m. S1 averred that, while Complainant was approved to telework fulltime, she only teleworked occasionally and came into the office because she claimed that it was easier to get assistance with computer issues or her assignments. S1 affirmed that she never retracted the telework accommodation, but it appeared that fulltime telework was not sufficient. S1 stated that she also modified Complainant’s tasks in accordance with her medical information and gave Complainant one assignment at a time. S1 Affidavit at 21-3, 27. Regarding claim 5, Complainant argues that it was not her responsibility to follow up after the CAP assessment was performed, and that instead, it was the responsibility of the CAP program office or other Agency officials to follow up. However, the record shows that CAP instructed Complainant to check with her supervisor and then utilize an included link to initiate her online request on July 10, 2017, and that Complainant did not forward the CAP assessment until September 26, 2017. ROI Exhibit D5 at 11. 2020003753 8 S1 claimed that she learned in October 2017 that CAP had closed Complainant’s request due to inaction. S1 averred that in February 2018, they set a meeting to discuss renewing Complainant’s CAP request, but Complainant did not attend the meeting and explained that she forgot. S1 Affidavit at 46-7, 50. Here, Complainant simply shifts responsibility onto CAP and Agency officials; however, the record shows that Complainant did not forward her July 2017 CAP assessment until the end of September 2017, which prevented the Agency from acting upon the recommended accommodations from CAP in a timely manner. Complainant also argues that the Agency did not engage in interactive discussions to discuss the accommodations of memory aids, or alternatively, suggest a reassignment to a different position. However, S1 stated that in response to Complainant’s memory issues, they tried a notebook, which Complainant then lost. S1 Affidavit at 28. Regarding a reassignment search, the Commission has long held that reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable Complainant to perform the essential functions of her current position, or all other reasonable accommodations would impose an undue hardship. See Enforcement Guidance. In this case, the record shows that S1 was still attempting to identify additional effective accommodations by requesting updated medical information in March and June 2018, and that the Agency did not determine that there were no more possible accommodations for Complainant to perform the essential functions of her current position. We also note that Complainant did not present evidence showing that she asked the Agency to consider a reassignment as an accommodation. As such, we find that Complainant did not establish that the Agency failed to provide reasonable accommodations. Complainant alleged that S1 acted improperly when she repeatedly requested updates regarding her medical condition in March and June 2018, because the EEOC’s Enforcement Guidance states that an employer cannot ask for documentation when the individual has already provided the employer with sufficient information to substantiate that she has a disability and needs the reasonable accommodation requested. However, S1 stated that accommodations for telework have an expiration date, and that she requested updated medical documentation at the time of renewal; and they were also trying to reinitiate Complainant’s CAP request. In addition, S1 averred that fulltime telework was not enabling Complainant to perform the essential functions of her position, and she was trying to find an accommodation that would help Complainant perform her duties. S1 Affidavit at 60, 63. While we note that the record is not clear if Complainant provided the requested documentation in March 2018, we find that S1’s requests in March and June 2018 were part of the ongoing interactive process for the Agency’s obligation to provide effective accommodations for Complainant. On June 5, 2018, S1 informed Complainant that she believed that the granted accommodation of fulltime telework was no longer effective based on Complainant’s work errors and missed deadlines, and she requested updated medical information to determine what reasonable accommodation would be most effective. ROI Affidavit Exhibit D16 at 2-5. Accordingly, we find that Complainant did not establish that the Agency subjected her to discrimination when it requested additional medical information. 2020003753 9 Disparate Treatment To prevail in a disparate treatment claim such as this, 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 generally 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). 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on disability, and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 2, S1 stated that she issued a proposed suspension to Complainant for sleeping on duty; unacceptable behavior; and failure to follow instructions. S1 noted that there were five specifications of sleeping on duty. S1 also provided examples of Complainant’s unacceptable behavior, including a time when Complainant left work to attend a baseball game, without requesting leave or notifying S1. When S1 requested a written explanation for Complainant’s unauthorized absence to attend the baseball game, Complainant failed to follow instructions when she did not respond. S1 Affidavit at 66, 70, 74-6. Regarding claim 4, S1 claimed that she issued a Letter of Warning because Complainant was observed sleeping at her desk around 11:20 a.m. on October 12, 2017. S1 stated that she received multiple written statements from witnesses who had seen Complainant sleeping. S1 Affidavit at 53-4. For claim 6, S1 averred that Complainant was placed on a PIP due to her unacceptable performance, which was rated a “one” and Complainant needed to demonstrate performance at a level of “two” or higher to pass the PIP. S1 stated that the PIP was initiated in June 2017, but as of October 2017, Complainant had not delivered any complete assignments. S1 added that she placed Complainant on a new PIP in fiscal year 2018, and they started again. S1 Affidavit at 31- 8. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2020003753 10 For the proposed suspension, Complainant contends that S1 maintained that she took into consideration mitigating factors, but only considered one mitigating factor of Complainant’s years of service and failed to consider other mitigating factors, such as Complainant’s past work performance. However, a review of the proposal shows that S1 listed Complainant’s years of service as an example of the mitigating factors, and that S1 ultimately determined that the seriousness of the allegations and the aggravating factors outweighed the mitigating factors. ROI Exhibit D7 at 3-4. Complainant argues that S1’s actions were discriminatory because Complainant’s actions were directly a result of her medical condition and/or the medication. However, Complainant did not provide any evidence showing that S1’s proffered reasons were not worthy of belief; and we note that Complainant did not dispute the incidents that were included in the discipline or that she had issues performing her work. Complainant further stated on appeal that she could not control falling asleep, nor could she always understand and follow directions or stop herself from engaging in behavior that was off-putting to some. The record also contains the employee reports of Complainant sleeping and complaints regarding her behavior. ROI Exhibit D7 at 19-31. In addition, the Commission has found that an employer is not required to excuse past misconduct even if it is the result of the individual’s disability. See Jordan v. Dep’t of the Defense, EEOC Appeal No. 0120055250 (Dec. 28, 2006). Here, Complainant’s bare assertions that S1 discriminated against her are insufficient to prove pretext or that her actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her disability, or in reprisal for prior protected EEO activity, when it issued her a proposed suspension, a Letter of Warning, and PIPs. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on her disability, or in reprisal for prior protected EEO activity. 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 finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on disability, or in reprisal for prior protected EEO activity. 2020003753 11 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). 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). 2020003753 12 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 December 14, 2021 Date