[Redacted], Mirtha H., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

May 9, 2022

Appeal No. 2020005237 (E.E.O.C. May. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mirtha H.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020005237 Hearing No. 570-2017-01365X Agency No. FS-2017-00420 DECISION On September 11, 2020, 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 August 10, 2020, final order 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 MODIFIES the Agency’s final order and REMANDS the complaint for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-12, at the Agency’s Forest Service Human Resources Management facility in Albuquerque, New Mexico. On April 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), and reprisal for prior protected EEO activity 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. 2020005237 2 1. On an unspecified date in January 2017, she learned she was not selected for the GS-12/13 Executive Officer (EO) position, advertised under Vacancy Announcement Number 17-5103-322050FS-EB; 2. On an unspecified date in January 2017, she learned she was not selected for the GS-12/13 Supervisory Program Recruiter (SPR) position, advertised under Vacancy Announcement Number 17-ASC-HRM- 297486FS-CRH; 3. On an unspecified date in January 2017, she learned she was not selected for the GS-12 Program Recruiter (PR) position, advertised under Vacancy Announcement Number 17-ASC-HRM-2974774FS-CRH; 4. On several dates, she was subjected to various acts of harassment, including but not limited to: a. On February 1, 2017, she learned that her supervisor told another unit employee that due to her prior EEO complaint against him, the team would be punished in the form of a reduced telework schedule; and b. On unspecified dates, she learned from the Client Technology Services (CTS) Help Desk that her emails were being “red-tagged and flagged” by the Agency in order to track her communication regarding her EEO complaints. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 28, 2019, motion for a decision without a hearing. On August 5, 2020, the AJ issued a decision without a hearing. Subsequently, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in granting the Agency’s motion for summary judgment because the Agency’s own internal investigation concluded that her supervisor made a retaliatory comment to Complainant’s coworkers about punishment for Complainant’s prior EEO activity. Complainant asserts that genuine issues of material fact remain as to whether the supervisor’s comment constituted retaliatory harassment. 2020005237 3 In response, the Agency contends that the AJ properly issued summary judgment on Complainant’s non-selection claims because Complainant did not submit any evidence to support her assertions. The Agency also argues that Complainant’s supervisor’s comment did not specifically reference Complainant, or her EEO activity in particular, and therefore, there is no conflicting evidence which would create a genuine dispute of fact. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Summary Judgment We will first 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. 2020005237 4 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 argues that material facts are in dispute concerning whether or not Complainant’s supervisor made a retaliatory comment in connection with reducing Complainant’s team’s telework schedule. We find, however, that no genuine issue of fact remains as to whether Complainant’s supervisor made the retaliatory comment. The Agency does not dispute that Complainant’s supervisor told two of Complainant’s coworkers that their telework would be reduced because “somebody filed something,” gesturing with his head towards Complainant’s cubicle. See Agency Motion for Summary Judgment, Ex 4 at 4. The only dispute goes to the legal significance of the comment, which is not a factual dispute requiring a hearing. Therefore, we find that the AJ properly determined that there are no genuine issues of material fact in dispute and her issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency has articulated legitimate, nondiscriminatory reasons for the three non- selections. With respect to the EO position, the Selecting Official stated that she appointed a four-member panel to review and rate all the applications while she made the final selection from among the interviewed candidates. See Report of Investigation (ROI) at 106. 2020005237 5 The panel members each independently rated the applications on a 5-point scale based on the following elements: executive level experience, executive level communication, leading people, experience with partnerships/collaboration, experience managing the internal operation of a large organization, the Knowledge Skills and Abilities (KSA) narrative, and other activities. See ROI at 127, 142-43. The panel lead explained that Complainant failed to provide a KSA narrative in her application, receiving a zero for that element, and had average scores on the other criteria. See ROI at 158-59. Consequently, stated the panel lead, her application was rated 36th out of the 38 candidates and Complainant was therefore not interviewed. See Id. With respect to the SPR position, a Human Resources Specialist (HRS) reviewed the six candidates for the position, including Complainant, but selected another applicant (S1) based on his demonstrated success and performance while serving in the SPR position during a 120-day temporary promotion. See Agency Motion for Summary Judgment, Ex 2. The HRS further explained that S1 had demonstrated his ability to synthesize and act upon complex, multi-faceted concepts and shown himself to be an articulate communicator with strong leadership abilities. See Agency Motion for Summary Judgment, Ex 2. With respect to the PR position, the HR Branch Chief served as the selecting official who reviewed all the applications, including Complainant’s, and selected another applicant (S2) because he was a seasoned HR professional and recruiter, who had already demonstrated human resources and recruitment experience. See Agency Motion for Summary Judgment, Ex 3; ROI at 960-64. Complainant acknowledged that S2 was more qualified for the PR position because he had already served in a temporary detail for the PR position. See Agency Motion for Summary Judgment, Ex 1 at 150-51. In a non-selection case, a Complainant may show that an employer’s reason for the non-selection was pretext for discrimination by demonstrating that her qualifications were “plainly superior” to those of the selectee. Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). We find that Complainant has not established that the Agency’s reasons for the non-selections were a pretext for discrimination on any of her protected bases. Complainant admitted that she had no evidence to support her assertions but only reiterated her belief that she was well qualified for all the positions. See Agency Motion for Summary Judgment, Ex 1 at 103-104, 126-27, 146. She asserted only that she believed her supervisor provided negative references to the selecting officials out of retaliation. See ROI at 79. The evidence in the record indicates that neither the Selecting Official nor any of the panel members who rated the applications for the EO position were familiar with Complainant personally or was aware of her prior EEO activity. See ROI at 105-106, 116, 125, 140, 156. In addition, Complainant’s supervisor stated that he had no knowledge of Complainant’s having applied to any of the positions at issue and was never contacted about any of the positions. See ROI at 94-97. Complainant cannot demonstrate pretext based on her subjective assessment of her own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). 2020005237 6 Mere disagreement with an Agency’s actions is not sufficient to establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). Moreover, the Commission will not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied, EEOC Request No. 0520120603 (Jan. 31. 2013). We therefore find that Complainant has not established that any of the non-selections were due to discrimination. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). With respect to claim 4(b), Complainant’s assertion that her emails were being “red-tagged” by the Agency, we find that Complainant did not establish that the alleged incident was related to any of her protected bases. A Computer Security expert at the CTS Help Desk told Complainant that the red flag was due to Complainant’s signature block. See ROI at 82. The Agency explained that the red ribbon symbol, which Complainant is referring to, is a symbol used by Microsoft Outlook to indicate that a digital signature is attached to an email message. See Agency Motion for Summary Judgment, Ex 7. The symbol is intended to prevent message tampering by providing verification of the sender’s identity. See Agency Motion for Summary Judgment, Ex 7. There is no evidence in the record that supports Complainant’s belief that the red flag attached to her email was somehow arranged by her supervisor. Her supervisor stated that he is unfamiliar with the red flag symbol and has no knowledge of its meaning. See ROI at 98-99. We therefore find that Complainant did not establish that she was subjected to a discriminatory hostile work environment because of her emails being flagged. Reprisal With respect to claim 4(a), however, we find that the Agency subjected Complainant to discrimination on the basis of reprisal when Complainant’s supervisor told some of her co- workers that the unit’s telework schedule would be reduced because Complainant filed an EEO complaint against him. 2020005237 7 As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. 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). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Id. Moreover, the threshold for establishing retaliatory harassment differs from that for a discriminatory hostile work environment. Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it is not severe or pervasive enough to alter the terms and conditions of employment. “If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.” EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, Sect. II.B, e.g. 17. Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions, we have found a broad range of actions to be retaliatory. For example, we have held that a supervisor threatening an employee by saying, “What goes around, comes around” when discussing an EEO complaint constitutes reprisal. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den., EEOC Request No. 0520090654 (Dec. 16, 2010). Actions, such as warning a complainant not to make false accusations or risk disciplinary action may also amount to retaliation on its face. See Manuel R. v. Dep’t of Agric., EEOC Appeal No. 0120142958 (Dec. 2, 2016) (declining to find retaliation where, after a hearing, the record failed to show that the named responsible management official warned complainant not to make false allegations or risk losing his job). In the instant case, the undisputed evidence in the record shows that Complainant’s supervisor told two of Complainant’s coworkers that their telework schedule was being reduced, from three days to two days, because “somebody filed something” and gestured with his head towards Complainant’s cubicle. See Agency Motion for Summary Judgment, Ex 4; ROI at 1092-93. Both of Complainant’s coworkers explained that they knew the supervisor was referring to Complainant because Complainant’s cubicle was the only one occupied in the direction the supervisor gestured toward. See Agency Motion for Summary Judgment, Ex 4. Another of Complainant’s coworkers confirmed that she became aware of Complainant’s prior EEO complaints because she heard about the supervisor’s comment from one of her coworkers. See ROI at 1087-88. Moreover, we note that the Agency does not dispute that the supervisor made the comment, and even issued the supervisor a letter of warning because of the remark. See Agency Motion for Summary Judgment, Ex 5. On appeal, the Agency asserts, initially, that the supervisor’s comment did not refer to Complainant specifically nor specify that an EEO complaint was filed. The Agency also contends that the matter is closed because it already issued a letter of warning to the supervisor. 2020005237 8 Finally, the Agency argues that because Complainant acknowledges that her relationship with her coworkers was not negatively affected by the comment, she cannot establish that she was subjected to a hostile work environment. We find that the Agency’s arguments are without merit. First, the implications of the supervisor’s statement that “somebody filed something”, while gesturing to Complainant’s cubicle, are clear. The coworkers to whom the comment was made clearly understood that the supervisor was referring to Complainant and determined that he was likely referring to an EEO complaint. We find that the supervisor’s comment could dissuade a reasonable person from engaging in protected EEO activity.2 See Michael L. v. Dep’t of the Treasury, EEOC Appeal No. 202003199 (May 19, 2021). Moreover, the Agency’s assertion that Complainant’s relationship with her coworkers does not appear to have been harmed, may relate to the issue of damages but has no relevance to the issue of whether the comment constitutes retaliatory harassment.3 Similarly, the Agency’s issuance of a letter of warning to the supervisor is also irrelevant as the letter was the result of a separate internal misconduct investigation for a violation of internal Agency policy and has no bearing on the EEO process. See Complainant v. International Boundary and Water Comm., EEOC Request No. 0520130669 (Feb. 11, 2014) (rejecting the agency’s argument that it should not be held liable for reprisal because the supervisor who made the retaliatory comment was counseled for his inappropriate behavior). We further note that the evidence in the record indicates that, prior to the misconduct investigation, Complainant’s second-line supervisor, the Assistant Director, was told of the supervisor’s comment but took no action. See Agency Motion for Summary Judgment Ex 4; ROI at 1088, 1092-93. Because the undisputed evidence indicates that Complainant’s supervisor made a comment that could dissuade a reasonable person from engaging in protected activity, we conclude that the Agency subjected Complainant to unlawful retaliation as alleged. 2 We note that to the extent the Agency argues that the unit’s telework days were actually reduced because of a directive from the Assistant Director, that HR management employees should not be permitted to telework more than two days a week in order to provide proper customer service, such contention is irrelevant. The reprisal allegation is centered on the comment made by the supervisor, not the actual reduction in telework. Moreover, the Commission has found that an employer cannot raise an affirmative defense to liability or damages for reprisal. See Angeles C. v. Dep’t of Agric., EEOC Appeal No. 2021004653 (March 2, 2022). 3 Complainant may be entitled to compensatory damages to the extent that she is able to show a compensable harm as a result of the retaliatory incident. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009) citing Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (a finding of retaliation on its face does not automatically entitle a complainant to a damages award). 2020005237 9 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 on claims 1-3 and 4(b). However, with respect to claim 4(a), we REVERSE the Agency’s finding of no discrimination and REMAND the claim to the Agency for further processing in accordance with the Order below. ORDER (D0617) The Agency shall take the following actions: 1. Within ninety (90) calendar days of the date this decision is issued, the Agency shall complete a supplemental investigation concerning Complainant’s entitlement to compensatory damages and determine the amount of compensatory damages due Complainant in a final decision with appeal rights to the Commission. The Agency shall pay this amount to Complainant within thirty (30) calendar days of the date of the determination of the amount of compensatory damages. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.” 2. Within ninety (90) calendar days of the date this decision is issued, the Agency shall provide eight hours of interactive EEO training to Human Resources management officials in the Albuquerque, New Mexico facility, including Complainant’s supervisor, the Supervisory HR Specialist, and Complainant’s second-line supervisor, the Assistant Director. The required training shall address management’s responsibilities with regard to eliminating discrimination and reprisal in the workplace. The Commission does not consider training to be a disciplinary action. 3. Within ninety (90) calendar days of the date this decision is issued, the Agency shall consider taking disciplinary action against Complainant’s supervisor.4 The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. 4. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” 4 We note that the letter of warning which the Agency already issued does not constitute disciplinary action for purposes of this Order. 2020005237 10 The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Forest Service Human Resources Management facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY’S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney’s fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2020005237 11 The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 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. 2020005237 12 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020005237 13 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 9, 2022 Date