[Redacted], Robyn D., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2021000644 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Robyn D.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2021000644 Hearing No. 410-2016-00467X Agency Nos. 9R1M16032; 9R1M1610; and 9R1M17051; DECISION Following its November 2, 2020 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its partial rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND During the period at issue, Complainant worked as a Contract Specialist/Contract Officer, GS- 13, at the Agency’s Air Force Sustainment Center (AFSC), Contracting Division (PZAB), Contracting Section at Robins Air Force Base in Warner Robins, Georgia. On February 23, 2016, September 26, 2016, and July 6, 2017, Complainant filed three formal EEO complaints. Complainant’s three formal complaints consisted of the following matters: Complaint 1 (Agency No. 9R1M16032): Whether Complainant was discriminated against by the Division Director and the Chief of Common Avionics/Electronic Warfare Contracting 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. 2021000644 2 Branch (“the Chief”) based on disability (respiratory illness, insufficient immune system, and diabetes) and in reprisal for prior protected EEO activity2 when on March 14, 2016: 1. Complainant was informed by the Division Director that she must return to work by March 17, 2016, or she would be charged absent without leave (AWOL), even though she had provided medical notes to management and Occupational Medicine Services (MOS) that she was under doctor’s care until April 5, 2016. 2. The Division Director rescinded Complainant’s agreement to telework, which she was scheduled to be evaluated for continuation on March 16, 2016, because she could not get her laptop to work. 3. The Chief told Complainant her 12-month Family and Medical Leave Act (FMLA) paperwork she had Complainant submit in October 2015, was not effective for 12 months as she had thought, but instead expired as of January 2016. Complainant was therefore told that she would need to resubmit new FMLA forms to invoke her FMLA rights if she wanted to go on FMLA leave or she would be charged AWOL beginning March 17, 2016. 4. Complainant became aware of office space that had been identified for her use had been taken away. 5. On May 10, 2016, Complainant received her 2015-2016 Civilian Rating of Record showing she met Elements 1-4 instead of exceeding Elements 1-4, which caused her not to receive a monetary award and time off award.3 Complaint 2 (Agency No. 9R1M16110): Whether Complainant was discriminated against and subjected to a hostile work environment based on disability and in reprisal for prior protected EEO activity by the Director of Contracting and the Division Director when: 1. On June 27, 2016, Complainant became aware that the Division Director denied her request for a printer for her office that was requested as a reasonable accommodation. 2. On July 25, 2016, Complainant became aware the Division Director canceled the order of a desk that was previously ordered for her by the Chief, her former supervisor. Complaint 3 (Agency No. 9R1M17051): Whether Complainant was discriminated against based on disability and in reprisal for prior protected EEO activity Complainant by the Division Director, the Director, the Chief of Management Operations, Flight Chief, and Facility Manager when: 2 Complainant indicated that her prior EEO activity was the instant complaint. 3 Claim 5 was a later amendment to the complaint. 2021000644 3 1. On February 13, 2017, Complainant learned that she had lost her reserved disability parking space and, through June 29, 2017, no reserved handicapped parking space within Complainant’s medical restrictions had been provided by the Agency. 2. On March 14, 2017, Complainant learned that her assigned disability parking request submitted on October 27, 2016 had been denied. After an investigation of the accepted complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an EEO Administrative Judge (AJ). Complainant timely requested a hearing for each formal complaint and subsequently requested consolidation. Following a hearing on the consolidated complaints held on October 4 and 5, 2018, the AJ issued a decision concluding that Complainant had not demonstrated that the Agency subjected her to a hostile work environment or discriminated against her based on reprisal for prior protected EEO activity.4 However, the AJ determined that Complainant had proven that the Agency violated the Rehabilitation Act when it failed to accommodate her disability. Specifically, the AJ found that the Agency failed to accommodate Complainant’s disability when it: (1) ended Complainant’s situational telework prematurely; (2) failed to allow Complainant to telework during the period when she returned to work; (3) refused to place Complainant in a hard-walled office when she returned to work on April 6, 2016; (4) failed to provide her a private printer she had located; (5) reduced her performance rating due to time she missed work because of her disability; and (6) revoked her disability parking spot. Regarding relief, the AJ issued a separate decision on damages. The AJ awarded $75,000 in compensatory damages for the first five findings of discrimination because these claims occurred over the same three to four-month period and involved similar forms of harm. Because the Agency revoked Complainant’s disability parking space much later, the AJ issued a separate award of $35,000 in compensatory damages for this violation. Additionally, the AJ determined that Complainant was entitled to backpay for four hours a day for the week of February 15, 2016 through February 19, 2016; backpay for eight hours a day from February 22, 2016 through April 5, 2016; and Complainant was entitled to the bonus she would have received but for her lowered performance review. In a separate decision on attorney’s fees and costs, the AJ awarded $118,994.50.5 4 The AJ indicated that in this case, Complainant’s claim of failure to accommodate refuted her claim on intentional discrimination because the record demonstrated that the Directory Director had a general belief that Complainant should be treated like any other employee and incorrectly construed Complainant’s requests for accommodation as a request for preferential treatment. Consequently, the AJ reasoned that Complainant had not established a showing of discriminatory intent to support a claim of hostile work environment. However, the AJ noted that a finding of a failure to accommodate does not constitute discriminatory intent. 5 The total award consisted of $6,104.50 in costs and $112,890.00 in attorney’s fees. 2021000644 4 On November 2, 2020, the Agency issued a final order partially rejecting the AJ’s finding of discrimination and award of damages and filed the instant appeal. On appeal, the Agency specifically rejects the AJ’s finding of discrimination and award of $35,000 in compensatory damages related to Complainant’s revoked parking spot. Because the Agency only disputes the AJ’s finding of discrimination and award of compensatory damages specific to the Agency’s revocation of Complainant’s reserved handicap parking spot, we need not address further in our decision below the AJ’s other findings of discrimination and order for compensatory damages related to the other claims. Additionally, we need not address the AJ’s award of attorney’s fees and costs. On appeal, the Agency argues that the AJ failed to consider or analyze any of its good faith efforts to reasonably accommodate Complainant pending the assignment of a parking space specifically designated for Complainant. The Agency acknowledges that it improperly denied Complainant’s request for a designated parking space starting in February 2017, while the parking lot was repainted. The Agency, however, asserts that it offered Complainant alternative parking arrangements during the four-month period Complainant waited to receive a permanent by-name parking space. These alternative parking arrangements included access to other designated disability parking spaces; offers by Complainant’s first and second level supervisors (S1 and S2) to pick Complainant up from the general parking lot and transport her to the office building; and providing Complainant additional time to report to work in order to find a close-by parking space. The Agency argues that these alternative arrangements, while not sufficient to afford a reasonable accommodation, were adequate to show a good faith effort to accommodate Complainant, and that therefore, Complainant should not be entitled to receive $35,000 in compensatory damages for the four-month period she was without an assigned by name parking space. Additionally, the Agency acknowledges that Complainant suffered additional injury to her ankle during the period she was without an assigned parking space. However, the Agency argues that Complainant could have avoided further injury to her ankle when she parked across the street if she had used an available ramp instead of using the stairs. Moreover, the Agency asserts that Complainant did not exercise the alternative parking options it provided. The Agency argues that the AJ inappropriately relied on Complainant’s injury as the determining factor for the decision on compensatory damages without considering whether the Agency made good faith efforts to provide Complainant reasonable accommodations during the four-month period Complainant waited for the reserved parking spot. In response to the Agency’s appeal, Complainant filed a cross appeal, through counsel, which she subsequently withdrew. 2021000644 5 However, Complainant filed an appellate brief in opposition to the Agency’s appeal arguing that the record supported the AJ’s conclusion that the Agency failed to reasonably accommodate Complainant’s need for a reserved disability parking spot and failed to submit evidence that it acted in good faith. Therefore, Complainant asserts that she is entitled to compensatory damages for the claim at issue. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Reasonable Accommodation - Revoked Parking Spot Under the Commission's regulations, 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. 29 C.F.R. §§ 1630.2(o) and (p). To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. Here, Complainant has alleged that the Agency failed to provide her with a reasonable accommodation during the period the Agency denied her request for continuation of a designated parking space. The record supports a finding that Complainant is a qualified individual with a disability. Complainant testified that she has broken her right ankle four times over the years with the last break occurring in 2007. As a result of her repeated ankle injuries, Complainant stated that she has arthritis, her “foot will go out sometimes,” and she is prone to falls. Complainant also indicated that she cannot walk long distances and her physician has restricted her from walking no more than 200 feet at a time. 2021000644 6 Additionally, Complainant mentioned that she has night blindness, diabetes, respiratory problems since November 2014, reoccurring pneumonia beginning in January 2015, and that she was diagnosed with an immunoglobulin deficiency in December 2015. As a result of her ankle condition, Complainant explained that she was first assigned a reserved (by name) disability parking spot in 2008. Complainant acknowledged that the Agency renewed her request, without issue, for a reserved parking spot on two occasions since 2008 when the parking lot was restriped and painted in 2010 and 2012. Consequently, Complainant stated that the Division Director was aware of her approved use of a reserved parking spot when she worked for him in 2012 as she had discussions with him about her previous renewal parking space requests. Documentation in the record reflects that Complainant had established, beginning April 2016, that her medical condition necessitated a continued use of a reserved disability parking spot. An April 5, 2016 physician’s note states that when Complainant returned to work on April 6, 2016, she “must maintain close parking (within 100 yards) of her office space and should not walk more than 100 yards at a time.” This work restriction was also noted in an April 6, 2016 occupational medicine services evaluation. Consequently, Complainant submitted her first request for a disability parking spot in October 2016. In December 2016, Complainant submitted another request, but this time included additional documentation from her physician. Complainant’s request included a December 7, 2016 physician’s note stating that Complainant had arthritis in her ankle which was not amenable to surgery and that walking caused her significant pain. The physician requested that Complainant “should park in a handicap parking spot as close as possible to her work site in order to reduce her pain and suffering.” The record further indicates that Complainant submitted a third renewal package request in February 2017. However, Complainant stated that she had been informed on March 14, 2017, that her request had been denied without explanation. By March 20, 2017, Complainant indicated that she realized that her request for an assigned disability parking space had not been worked on even after she had a couple of near falling incidents, she contacted EEO, and she agreed in April 2017 to participate in the mediation process. On May 8, 2017, the Agency denied Complainant’s request for a reserved designated parking spot. The Agency stated in the denial letter that there was “open handicapped parking available for [her] use which addressed the restrictions [she] asserted.” Following this denial, the Agency scheduled mediation to begin on May 10, 2017. During the mediation process, Complainant acknowledged that the Agency offered her open- reserved-parking and she agreed to try this parking arrangement for a two-week period even though the open-reserved-parking spaces were located further away from her office building than the reserved handicapped parking space she had been originally assigned. Complainant indicated that management had not previously offered her open-reserved-parking. 2021000644 7 Complainant further indicated that she agreed to try this parking arrangement under duress because the Acting Director was present during the mediation. Complainant testified during the hearing that the Acting Director sat the corner of the room, did not sit at the table, and when open-reserved-parking was recommended, Complainant stated that the Acting Director came “quickly out of the corner over to [her] and [said], ‘well I want you to use this, I think this will solve your problem.’” Complainant stated that she felt that the Acting Director was “ordering” her to try the open-space-reserve parking. Nevertheless, Complainant returned the parking pass after the two-week period ended because it did not afford her a closer parking spot or a parking spot within her medical restrictions. On June 21, 2017, the Agency approved Complainant’s February 10, 2017 request for a reserved parking spot. We note the Agency’s argument that it acted in good faith when it provided Complainant alternative parking arrangements - the open-reserved parking as well as S1 and S2’s offers to pick Complainant and transport her to the building in times she had to park further away. Although protected individuals are entitled to reasonable accommodation under the Rehabilitation Act, they are not necessarily entitled to their accommodation of choice. See EEOC Notice No. 915.002, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (October 17, 2002) (“Guidance”), Question 9. However, alternative proposed accommodations must be “effective.” See U.S. Airways v. Barnett, 535 U.S. 391, 400(2002). “An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual's limitations.” Id. Here, we note that the alternative parking arrangements the Agency offered were ineffective and fail to demonstrate that the Agency acted in good faith. Complainant testified, and management acknowledged, that the open-reserve-parking was further away from the handicapped parking. Complainant also stated that the open-reserve-parking was located near steps, as opposed to being near a ramp, and it remained full most of the time. Consequently, Complainant stated that she did not use the open reserve parking and would spend thirty minutes riding through the parking area until she found a disability spot, which further delayed the start of her workday. Additionally, Complainant indicated that she felt that S1 and S2’s offers to pick her up and drive her to the office building were “degrading.” Nevertheless, Complainant stated that when she did call S2 on one occasion to pick her up, S2 was not at work. Additionally, Complainant stated that she called S1 and left a message, S1 did not return her call, and Complainant learned that S1 was not at the office because she was teleworking. We further note that the Agency’s interim accommodations were not only ineffective, they were also unreasonably delayed. An employer should respond expeditiously to a request for reasonable accommodation. Enforcement Guidance on Reasonable Accommodation at Question 10. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible. Id. Similarly, the employer should act promptly to provide the reasonable accommodation. Id. Unnecessary delays can result in a violation. Id. 2021000644 8 In determining whether there has been an unnecessary delay in responding to a request for reasonable accommodation, relevant factors include: (1) the reason(s) for delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide. Here, the record reflects that Complainant submitted her initial request in October 2016 for a reserved disability spot. Complainant, however, learned five months later in March 2017, that her initial request had been denied. The Agency’s delay prompted Complainant to resubmit her request in December 2016 and February 2017. However, there is no reasonable explanation why the Agency waited until March 2017 to issue a decision. Additionally, the Agency waited until May 2017, three months after it had revoked Complainant’s reserved parking spot, to provide Complainant an interim accommodation (alternative parking) which was not within Complainant’s medical restrictions. Consequently, Complainant was without any accommodation for a four-month period from February 2017 (when her parking spot was revoked) until June 2017 (when her reserved parking spot was approved). Given these circumstances, the record fails to support the Agency acted in good faith with the processing of Complainant’s request. Therefore, for the reasons discussed above, we find that the AJ correctly determined that Complainant was discriminated against when the Agency failed to accommodate Complainant’s disability and violated the Rehabilitation Act when it revoked her disability parking place. Non-pecuniary Damages Non-pecuniary compensatory damages are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See id.; see also Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr.18, 1996) (citing Carle v. Department of the Navy, EEOC Appeal 2021000644 9 No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from a complainant concerning emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Non-pecuniary compensatory damages are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance), EEOC Notice No. 915.002 at 10 (July 14, 1992). Objective evidence in support of a claim for non-pecuniary damages claims includes statements from Complainant and others, including family members, co-workers, and medical professionals. See id.; see also Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Non-pecuniary damages must be limited to compensation for the actual harm suffered as a result of the Agency's discriminatory actions. See Carter v. Duncan-Higgans. Ltd., 727 F.2d 1225 (D.C. Cir. 1994); EEOC Guidance at 13. Additionally, the amount of the award should not be “monstrously excessive” standing alone, should not be the product of passion or prejudice, and should be consistent with the amount awarded in similar cases. See Jackson v. U.S. Postal Serv., EEOC Appeal No. 01972555 (April 15, 1999) (citing Cygnar v. City of Chicago, 865 F. 2d 827, 848 (7th Cir. 1989)). The AJ awarded $35,000 in compensatory nonpecuniary damages for the claim at issue. We conclude the award is appropriate and consistent with the amounts awarded in similar cases. Here, Complainant testified during the hearing that she thought it was “unbelievable” when she learned that the Agency had revoked her reserved disability parking. Complainant noted that the Agency had undergone two other parking lot paint stripping, and she had completed the same application packages she had with the most recent paint stripping and her reserved parking spot was renewed. Complainant stated that she felt “hurt” when her request was denied, and she stated that she was scared that she would physically hurt herself and fall from the walking she incurred after her space was revoked. Complainant explained that she did not feel valued and she felt that people at work did not want her to come in the office to work. Additionally, Complainant noted that she injured her ankle during the period the Agency denied her revoked her handicap parking spot which resulted in her parking in a parking lot that was approximately 1,200 to 1,500 feet way from her building. Complainant explained that her pain from this injury lasted about two weeks. Although Complainant acknowledged that at the time she sustained this injury, she could have taken the ramp instead of the stairs when making her way from the parking lot to her office building, Complainant’s decision to elect to use the stairs over the ramp does not negate the Agency’s failure to provide Complainant with an accommodation within her medical restrictions. 2021000644 10 Medical documentation in the recorded supported that Complainant’s parking spot should have been no more than 100 feet away from her building, and consequently, Complainant having to park in the parking lot across the street was not within her medical restriction. An award of $35,000 is neither monstrously excessive nor the product of passion or prejudice and is consistent with prior EEOC precedent. See Marguerite W. v. Department of Labor, EEOC Appeal No. 0120142727 (Dec. 21, 2016) (complainant awarded $30,000 when agency denied complainant a computer monitor as a reasonable accommodation for her visual impairment for a period of about three months and complainant suffered emotional harm). CONCLUSION Accordingly, we REVERSE the Agency’s final order partially rejecting the AJ’s findings of discrimination with respect to Complainant’s revoked disability parking space. We AFFIRM the AJ’s order as stated in our Order below. We REMAND this matter to the Agency in accordance with the ORDER below. ORDER To the extent it has not already done so, the Agency is ORDERED to take the following actions: 1. Within sixty (60) calendar days from the date of this decision is issued, the Agency shall pay Complainant $75,000 in compensatory damages for the first five findings of discrimination as ordered by the AJ and $35,000 in compensatory damages for revoking Complainant’s reserved disability parking spot. 2. Within sixty (60) calendar days from the date of this decision is issued, the Agency shall pay $6,104.50 in costs and $112,890.00 in attorney’s fees as ordered by the AJ. 3. Within sixty (60) calendar days from the date of this decision is issued, the Agency shall pay Complainant backpay for four hours a day for the week of February 15, 2016 through February 19, 2016 and backpay for eight hours a day from February 22, 2016 through April 5, 2016. 4. Within sixty (60) calendar days from the date of this decision is issued, the Agency shall pay Complainant the bonus that she would have received had the Agency not lowered her performance review. POSTING ORDER (G0617) The Agency is ordered to post at its Air Force Sustainment Center (AFSC), Contracting Division (PZAB), Contracting Section, Robins Air Force Base 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, 2021000644 11 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). 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. 2021000644 12 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). 2021000644 13 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 May 19, 2021 Date