[Redacted], Marguerite L., 1 Complainant,v.Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Dec 22, 2021

Appeal No. 2020004256 (E.E.O.C. Dec. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite L.,1 Complainant, v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020004256 Hearing Nos. 560-2018-00223X 560-2019-00065X Agency Nos. KC-17-0745-SSA KC-18-0352-SSA 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 June 18, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Case Technician at the Agency’s Office of Hearings Operations in Columbia, Missouri. Complainant alleged that, starting on December 15, 2015, she was harassed by coworkers. For example, Complainant averred that one coworker (CW) “came at [Complainant] with a closed fist and threatening tone and verbiage.” 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. 2020004256 2 Complainant claimed that when she reported the harassment to management officials, who denied her allegation and accused Complainant of being the aggressor. Report of Investigation (ROI) 1 at 61. On June 21, 2016, Complainant’s then first-line supervisor (S1) (age 38, prior EEO activity) issued Complainant an Official Reprimand for the verbal argument with CW on December 15, 2015, and for inappropriately using another employee’s personal identification number to access the Agency’s computer systems. ROI 1 at 76-8. In November 2016, Complainant was assigned a new first-line supervisor (S2) (age 39, no prior EEO activity). ROI 1 at 61. On August 18, 2017, Complainant emailed her second-line supervisor, the Director (age 52, prior EEO activity), and requested a reassignment to another supervisor. The Director responded that he was not making any supervisory changes. ROI 1 at 79. On October 11, 2017, Complainant again requested a change in supervisor, which the Director denied. ROI 1 at 66. On January 25, 2018, S2 issued Complainant a proposed removal for failure to perform critical elements of her position. S2 noted that Complainant was placed on a Performance Assistance Plan on May 5, 2017, and given additional feedback and assistance, but Complainant’s performance continued to be deficient. S2 added that Complainant was also placed on an Opportunity to Perform Successfully plan on August 18, 2017, and she was still unable to improve her performance to a successful level. ROI 2 at 261-78. Complainant notes that her employment with the Agency ended on March 16, 2018. ROI 2 at 215. Complainant averred that, from January 25, 2018, through March 16, 2018, she was placed in a Hearing Room away from everyone. Complainant stated that the Agency also took away her access to the systems; instructed her to stay within common areas, such as the hallways and break rooms; and had her work monitored on a daily basis. ROI 2 at 215-6. Complainant alleged that she was further harassed, when on March 20, 2018, she was visited by officers from Homeland Security regarding an allegation that Complainant threatened that “someone was going to get hurt” if her performance issues did not work out. Complainant asserted that she denied the allegation and the matter was dropped. ROI 2 at 219. Agency Case No. KC-17-0745-SSA (Complaint 1) On October 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based her on age (55), and in reprisal for prior protected EEO activity, when: 1. it subjected Complainant to non-sexual harassment beginning on December 15, 2015, regarding management’s failure to respond to her allegations of harassment by her coworkers; and 2. it subjected Complainant to disparate treatment when on August 18, 2017, management denied her request for a reassignment to a new supervisor. 2020004256 3 The Agency accepted the claims for investigation but dismissed the claim alleging discrimination when the Agency placed Complainant on a performance assistance plan because it was previously raised in a negotiated grievance proceeding and for untimely contact with an EEO counselor. ROI 1 at 19-20. Agency Case No. KC-18-0352-SSA (Complaint 2) On March 5, 2018, Complainant filed another EEO complaint alleging that the Agency subjected her to harassment based her age, and in reprisal for prior protected EEO activity, from August 18, 2017, to January 25, 2018, with regards to her working conditions, performance plan, and termination. The Agency informed Complainant that her termination claim was a mixed-case claim that was appealable to the Merit Systems Protection Board. As such, the Agency bifurcated Complainant’s complaint and processed the harassment claim separately.2 The Agency also dismissed the claims alleging harassment when Complainant was denied union representation, as a collateral attack on another proceeding, and alleging disparate treatment when Complainant was placed on an Opportunity to Perform Successfully Plan for untimely contact with an EEO Counselor.3 ROI 2 at 180-2. At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 22, 2019, motion for a decision without a hearing and issued a consolidated decision without a hearing on June 16, 2020. The AJ found that Complainant did not present any evidence to show that the Agency discriminated against her, or subjected her to a hostile work environment, on the bases of age and/or prior EEO activity. For claim 2, the AJ noted that Complainant identified no comparable employees who requested a supervisory change which was granted; the Agency presented legitimate nondiscriminatory reasons for the actions; and Complainant presented no evidence of pretext. Regarding the harassment claims, the AJ determined that the evidence did not establish that the incidents alleged by Complainant occurred because of her age and/or EEO activity, or that they rose to the level of hostile or abusive. The AJ concluded that Complainant failed to establish that she was subjected to disparate treatment and/or harassment because of her age, and/or in reprisal for her prior EEO activity, with regard to the alleged events. 2 Complainant stated that she elected to arbitrate her removal. Complainant Deposition at 22. As such, Complainant’s removal is not a part of the instant complaint. 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest any of the Agency’s procedural dismissals; as such, we will not address them in the instant decision. 2020004256 4 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted multiple statements and documents in support of her appeal.4 The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that no younger employee was put on a performance plan; subjected to a hostile work environment; or terminated. Complainant asserts that S2 issued the proposed removal based on her allegations that Complainant was not meeting performance expectations, but there was documented evidence to show otherwise. For example, Complainant states that one of the judges stated that Complainant’s work was excellent, timely, and error-free. Complainant also states that she was informed that she was being moved so that she would not disturb others, but she not given a reason as to how or why she would disturb others. Complainant claims that S2 accused her of “disturbing and antagonizing other employees,” but that there were only unproven allegations against her, such as a “bogus” harassment claim that Complainant rubbed someone’s shoulders at a retirement party. Complainant also alleges that S1 “changed her testimony” to state that a new witness to the December 15, 2015 incident informed her that Complainant started the altercation. Complainant notes that S1 did not previously raise this witness in her earlier statement. Complainant asserts that she was subjected to retaliatory harassment because she was “threatened with a fist” from CW, who was not disciplined. Complainant also alleges that S2 subjected her to per se retaliation when she sent an email noting that Complainant stated that she was being subjected to retaliation, and S2 included the contact information for the Commission. 4 The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Here, Complainant submitted multiple statements and documents through June 3, 2021, well beyond her 30-day deadline of August 19, 2020. As such, we decline to consider any of Complainant’s submissions that were uploaded past her deadline and will only consider Complainant’s timely statements. 2020004256 5 Agency’s Contentions The Agency argues that Complainant’s appeal brief does not point to any legal or factual errors contained in the AJ’s decision, and instead, Complainant relies primarily upon her subjective beliefs and assertions of fact that are unsupported by any evidence of record. The Agency also asserts that Complainant presented no evidence from which a genuine issue of material fact can be inferred. For claim 1, the Agency states that the undisputed evidence demonstrates that the purported harassment did not occur when Complainant’s management officials investigated and responded to each of the disputes between Complainant and her coworkers or referred them to the Regional Office for investigation. To the extent that Complainant contended that management should have taken some sort of disciplinary action following their investigations, the Agency argues that management’s investigations revealed that Complainant’s claims: 1) were uncorroborated; 2) conflicted with those of the alleged wrongdoers; and 3) in some cases, Complainant’s claims conflicted with the statements from neutral witnesses. As such, they reasonably concluded that no harassment occurred. Regarding claim 2, the Agency notes that Complainant withdrew her allegation that management officials denied her requests for reassignment based upon age in her response to Agency Interrogatory No. 14. In addition, the Agency argues that Complainant cannot show that she engaged in prior protected activity, or that if she did, management knew of that activity when it took the alleged discriminatory actions; therefore, Complainant failed to establish a prima facie case of reprisal. However, the Agency asserts that even if Complainant could show a prima facie case, her retaliation claim still fails due to the articulated unrebutted, legitimate nondiscriminatory reasons for its action, for which Complainant has no evidence of pretext. For the harassment claim in Complaint 2, the Agency asserts that the complained of events were not sufficiently severe or pervasive to constitute an actionable hostile work environment claim, and there was no nexus between the alleged acts of harassment and Complainant’s age or prior EEO activity. Further, the Agency notes that its actions after it terminated Complainant’s employment cannot form the basis for a Title VII complaint as a matter of law because they did not affect a term, condition, or privilege of employment. The Agency avers that Complainant cannot meet her burden to show that it subjected her to non-sexual harassment based on her age, or in retaliation for any prior protected activity, and requests that the Commission affirm the final order. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s 2020004256 6 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Decision without a hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant made various arguments to challenge material facts; for example, that her work was excellent and that younger employees were not terminated or placed on performance plans. However, Complainant did not provide any supporting evidence for her assertions. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). 2020004256 7 In addition, we find that S1 did not “change” her testimony regarding a witness to the December 15, 2015 verbal altercation between Complainant and CW. In her affidavit, S1 stated that the Agency interviewed “all who were nearby” and provided examples of those interviewed, and in a subsequent declaration, S1 included details of statement from a “new” witness. ROI 1 at 135 and Agency’s Statement of Proposed Undisputed Facts and Motion for Decision Without a Hearing, Exhibit C. Even crediting Complainant’s assertion that there was a change in S1’s testimony, we find that this is not material because Complainant alleged that the Agency failed to investigate her harassment allegations, and S1’s statements consistently supported that the Agency conducted investigations. A review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. 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 in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for claim 2. The Director stated that he denied Complainant’s requests for a supervisor change and encouraged her to communicate more openly with her supervisor. The Director explained that, while Complainant complained about the amount of scrutiny her supervisor gave her work, he responded that he believed that Complainant’s supervisor was equitably and fairly monitoring her work and he would not change her supervisor simply because Complainant felt that she was watched too closely or receiving feedback that she did not agree with. ROI 1 at 126. The Director added that even if he changed Complainant’s supervisor, the amount of oversight would not have changed, given Complainant’s performance problems and the need to keep tabs on her progress. Agency’s Statement of Proposed Undisputed Facts and Motion for Decision Without a Hearing, Exhibit B. 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. 2020004256 8 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). Complainant did not provide any arguments on appeal that the Director’s proffered reasons were not worthy of belief. Accordingly, we find that Complainant did not establish that the Agency retaliated against her for her prior protected EEO activity when it denied her requests for a change in supervisor. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that Complainant belongs to protected classes based on her age and prior protected EEO activity, and that she was subjected to unwanted verbal conduct. However, there is no evidence that any of the complained of conduct was due to a protected basis. For claim 1, it is undisputed that Complainant reported a verbal altercation with CW on December 15, 2015. However, we find that the evidence does not support Complainant’s assertion that the Agency failed to investigate her harassment allegation. S1 stated that they interviewed witnesses to the verbal altercation between Complainant and CW, and a witness confirmed that she was interviewed and informed management officials that no one had “hands raised,” only raised voices. ROI 1 at 135, 139. In addition, the record contains responses from a Regional Management Officer and the Agency’s Harassment Prevention Officer, who investigated other harassment allegations by Complainant, concluding that the complained of incidents did not rise to the level of harassment. ROI 1 at 94-6. 2020004256 9 Further, the Harassment Prevention Officer declared that she spoke with Complainant in October 2015 and January 2016, in response to Complainant’s allegations of a hostile work environment. The Harassment Prevention Officer noted that Complainant did not complain of being harassed due to her age or protected EEO activity, and she concluded that Complainant’s allegations did not rise to the level of harassment. Agency’s Statement of Proposed Undisputed Facts and Motion for Decision Without a Hearing, Exhibit E. The record shows that Complainant had conflict with her coworkers. However, there is no evidence that their conduct was based on Complainant’s age or protected EEO activity. For example, a witness stated that CW did not like Complainant because she did not approve of the way Complainant performed her work and another coworker had conflicts with Complainant because she had strong opinions about the way the work should be done. ROI 1 at 149-50. While Complainant alleged that CW subjected her to retaliatory harassment when she allegedly raised her fist, we note that Complainant did not establish that CW was aware of Complainant’s protected EEO activity. For the incidents in Complaint 2, we find that S2 explained that the actions were related to Complainant’s ongoing performance issues. S2 stated that she met with Complainant starting on February 1, 2017, to discuss the areas of concern, and that Complainant’s performance did not improve to a successful level. ROI 2 at 222. Complainant disputed her performance issues and claimed that a judge found her work to be excellent, but Complainant presented no supporting evidence. S2 also averred that she instructed Complainant not to linger near other employees’ workstations to avoid disrupting them. ROI 2 at 223. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, we find that there is no evidence that Agency’s actions were abusive, offensive, or taken to harass Complainant on the basis on a protected class. Complainant also argues that management officials credited false accusations against her, including the claim that Complainant allegedly stated that someone would get “hurt.” However, Complainant did not present any evidence that false accusations were made against her, and even crediting Complainant’s claim that her coworkers made false accusations, Complainant did not aver that they did so based on Complainant’s age or protected EEO activity. 2020004256 10 While Complainant argues that S1 subjected her to retaliation when she sent an email noting that Complainant stated that she was being subjected to retaliation and included the contact information for the Commission, we find that S1’s acknowledgement of Complainant’s claim of retaliation and the provision of the appropriate contact information to file an EEO complaint would not dissuade a reasonable person from engaging in EEO activity. In this case, we find that there is no evidence that Complainant was subjected to conduct, either by her coworkers or management officials, due to one of her protected classes. As such, we find that Complainant did not establish that she was subjected to harassment based on her age, or in reprisal for prior 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age, or in reprisal for her prior protected EEO activity. 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 2020004256 11 Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020004256 12 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 22, 2021 Date