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

Equal Employment Opportunity Commission

Mar 5, 2021

Appeal No. 2019005314 (E.E.O.C. Mar. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Salvatore B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2019005314 Hearing No. 570-2015-01175X Agency No. FS-CF-2015-00148 DECISION Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 24, 2019 and October 11, 2019, final decisions concerning his equal employment opportunity (EEO) complaints 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decisions.2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Agency issued two final decisions on the complaint docketed under the instant appeal number. The first decision, issued on February 13, 2019 addressed the allegations set forth in Complainant’s original complaint. Neither Complainant nor his attorney had received the initial final decision until June 24, 2019. The second decision, issued on September 18, 2019 and received by Complainant and his attorney the following day, addressed allegations included in an amendment to the original complaint that was ordered by an EEOC Administrative Judge prior to Complainant withdrawing his hearing request. The subsequent appeal was initially docketed 2019005314 2 PROCEDURAL BACKGROUND Complainant worked as an EEO Manager, GS-0260-14, at the Agency’s Office of Civil Rights in Washington, D.C. In that capacity, he served as a Branch Chief within the Agency’s Disability Employment Program. On December 29, 2014, Complainant filed an EEO complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the bases of his national origin (Hispanic), disability (paraplegia), age (55), and in reprisal for prior protected EEO activity when:3 1. On August 14, 2014, Assistant Director of the Office of Civil Rights, Complainant’s immediate supervisor (S1) required Complainant to submit medical evidence to support his request for 100 percent telework and a reasonable accommodation, even though he had an obvious disability; 2. On several unspecified dates, S1 forced Complainant to take annual and sick leave rather than being permitted to participate in mandatory meetings via teleconferencing; 3. October 27, 2014, S1 denied Complainant’s requests for speech recognition software, a noise cancellation headset, and 100% telework as reasonable accommodations; and 4. Since October 2014, S1 failed to process his reasonable accommodation requests. After an investigation on June 11, 2015, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing on August 7, 2015. While the matter was pending before the AJ, Complainant twice moved to amend his complaint. The AJ accepted the following amended claims: 5. On January 7, 2016, S1 issued him a notice of a proposed five-day suspension, which was reduced to a two-day suspension effective June 9, 2016; and 6. S1 and the Director of the Office of Civil Rights, Complainant’s second-line supervisor (S2), failed to accommodate his disability when they required him to travel to an off-site conference notwithstanding that he was on previously approved 100% telework. On February 13, 2017, Complainant withdrew his hearing request and the AJ remanded the matter to the Agency for a final agency decision (FAD). under EEOC Appeal No. 2020000754, which has since been administratively closed and consolidated herein. 3 The incidents comprising Complainant’s claim have been reordered chronologically. 2019005314 3 On November 14, 2017, the Agency completed its supplemental investigation of allegations (5) and (6) and provided Complainant’s Counsel with a copy of the supplemental investigative report (SIR). On May 7, 2018, Complainant’s Counsel inquired as to the status of the FAD. The Director of the Agency’s Office of Adjudication responded by letter dated May 24, 2018 as follows: While the case was pending before the AJ, Complainant amended his complaint at least three times. Thus, when the AJ granted Complainant’s motion to withdraw his case from a hearing, the Agency could not adjudicate the matter without investigating the additional allegations raised in the amendments. The Agency intends to issue a legally sufficient FAD as soon as possible. Pursuant to 29 C.F.R. § 1614.110(b), on February 13, 2019, the Agency issued the first of its two final decisions on Agency No. FS-CF-2015-00148. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged, addressing only incidents (1) through (4). Although a copy of the decision was sent to Complainant via certified mail, the tracking documentation indicated that it had been marked, “return to sender” from Complainant’s last known address. The certificate of service indicated that Complainant did not have a representative, notwithstanding Counsel’s numerous correspondences with Agency officials. Complainant’s Counsel eventually received a copy of the initial final decision on June 24, 2019 and filed an appeal on July 15, 2019. In the brief in support of the appeal, in addition to contesting the merits of the initial final decision addressing incidents (1) through (4), Complainant’s Counsel contended that the February 2019 final decision was untimely, incomplete, and not served upon Complainant's representative, and consequently, that a default judgment should be entered against the Agency. In particular, Counsel argued that Complainant was severely prejudiced by the Agency’s 398- day delay in issuing the decision, the Agency’s failure to address the incidents raised in the amendments to his complaint, and the Agency’s failure to serve Counsel with the FAD in a timely fashion. Counsel also argued that the Agency’s apparent violations of the Commission’s regulations had an adverse effect upon the integrity of the EEO process. On September 18, 2019, the Agency issued its second final decision on Agency No. FS-CF- 2015-00148, in which it addressed incidents (5) and (6) and again concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. FACTUAL BACKGROUND Complainant is a paraplegic, having contracted polio when he was 18 months old. His condition severely limits his mobility, his ability to perform manual tasks, care for himself, walking, standing, lifting, bending, concentrating, thinking, and communicating. Likewise, his condition impacts major bodily functions such as bowel and bladder control, neurological functions, circulatory functions, and other such functions. Due to having to use his upper body to move around, he had sustained repetitive motion injuries to the rotator cuffs in both shoulders. 2019005314 4 When asked whether his condition limited his ability to perform the essential functions of his position, Complainant stated that his shoulder pain intensifies when he has to hold a cell phone to his ear, type on a computer, commute, use bathrooms not set up to accommodate his needs, and push up ramps. He further averred that he was not a candidate for surgery, that he had to limit the use of his upper body to minimize further pain. He emphasized that he could perform the essential functions of his position with reasonable accommodations. He further stated that S1 and S2 were aware of his disability by visual observation. In addition, he stated that on April 28, 2016, while attending a training conference, he had fallen in the bathroom and had sustained a concussion which had kept him out of work for an extended period of time. IR 35-37, 106-07; Supplemental Investigative Report (SIR) 56. Incident (1): Complainant claimed that on August 14, 2014, S1 required him to submit medical evidence to support his request for 100 percent telework even though his disability was obvious. He stated that S1 had informed him that medical information was required because of the position he held as the Disability Employment Program Branch Chief. He further claimed that he had been allowed to telework full-time on a temporary basis and that the work-at-home agreement he was under was set to expire on June 4, 2015 with no discussion about what would follow. IR 39. S1 responded that she was requesting medical documentation not to determine whether he had a disability but rather to determine the best accommodation to address Complainant's specific complaints regarding his shoulder. S1 averred that she needed a doctor’s opinion in order to make sure that Complainant’s shoulder condition would not be further exacerbated. IR 76. The Department of Agriculture’s Reasonable Accommodation Coordinator (USDA-RAC), who processed Complainant’s reasonable accommodation requests, also stated that the documentation was necessary to determine whether Complainant’s requested accommodations would be effective. IR 89. Incident (2): According to Complainant, between December 2013 and early 2014, S2 had instituted a policy requiring those employees, supervisors, and managers located in the metro Washington D.C. area to be in the building to participate in mandatory meetings in-person. Complainant averred that he had informed S1 that he had poor circulation in his lower extremities and that his doctor recommended that he not be outside when the temperature fell below 45 degrees. He also claimed that S1 refused his requests to teleconference into those meetings. He explained that when he had to come into the office, the effort required to get to the office caused further shoulder injuries and that he was forced to take leave to avoid those issues. IR 40-41. S1 confirmed that S2 required that all employees be physically present at meetings at which a reorganization of the Civil Rights Office was being discussed. She also stated that under the telework policy in effect at the time, management had the right to require employees to come into the office as long as two days’ notice was given, and that employees who chose not to come into the office were required to take annual leave. S1 further stated that although Complainant had not yet identified the need to telework at the time, he did make two reasonable accommodation requests: avoiding the Metrorail station nearest the office due to an elevator outage and avoiding cold temperatures which caused issues with his legs. 2019005314 5 S1 affirmed that in response to these requests, she offered Complainant the use of a car service which the office would reimburse so that he would not have to travel via Metro or be subject to the cold. IR 76-77. S2 stated that on January 14, 2015, S1 informed him that Complainant had requested to be excused from the next mandatory in-person meeting, that he responded that the Agency could pay for a taxi or approve leave, and that Complainant had chosen to take leave. IR 84-85. Incidents (3) & (4): Complainant claimed that between October 27 and December 4, 2014, S1 and S2 failed to act upon his requests for reasonable accommodation in the form of speech recognition software, a noise-cancelling headset, and a 100 percent telework schedule. He stated that during this time frame, S1 informed him that he would have to “go through the full blown thing,” meaning the reasonable accommodation process, and that she failed to provide him with interim accommodations while his request was pending. He acknowledged, however, that when the office transitioned from Blackberry phones to iPhone and Galaxy phones, S1 granted his reasonable accommodation request for an iPhone. IR 37-39, 109-110. S1 averred that since he was the Branch Chief responsible for processing the Agency’s reasonable accommodation requests, his request was handled by the USDA-RAC, that Complainant’s requests were approved, and that he was provided with all of the reasonable accommodations that he had asked for. S1 acknowledged the approximately month and a half delay in approving Complainant’s reasonable accommodation requests, but attributed this delay to the fact that Complainant’s reasonable accommodation requests had to be processed at the Departmental level rather than within the Agency itself. IR 74-76. S2 averred that Complainant’s requests for the speech- recognition software and the headset were approved, and that Complainant was granted 100 percent telework on an interim basis until June 2015, at which time the situation would be reevaluated based on continuing performance issues and the impact on the essential functions of his job. S2 also stated that it was an essential function of Complainant’s job as a Branch Chief to come into the office some of the time, and that Complainant had performance issues concerning his management and responsiveness to customer requests. IR 80-83. The USDA-RAC affirmed that she was asked by the Department’s Office of General Counsel to process Complainant’s reasonable accommodation requests, which consisted mainly of 100 percent telework. She acknowledged the delay but maintained that it was necessary to go through the proper steps given that there was a job performance concern raised. In addition, she stated that there was a question of whether 100 percent telework was the most effective accommodation for completion of his essential functions as a team manager, which, in her words, “may have led to the process dragging out a bit,” and that she eventually settled on trying 100 percent telework temporarily to see how it would work out. IR 87-88, 114-19. Incident (5): In June 2016, Complainant served a two-day suspension which had been reduced from a proposed five-day suspension that had been issued in January 2016. S2 was the deciding official. 2019005314 6 According to S1, Complainant had been charged with neglect of duty in that he failed to respond to multiple emails between August 2012 and January 2013 from an employee who was seeking assistance in processing a reasonable accommodation request. SIR 65-66, 85, 90, 209-12, 294- 95. Complainant claimed that he was made the scapegoat for the actions or inactions of other Agency officials, and others had done what he was accused of doing, including S1 and S2. SIR 57-60. Incident (6): Complainant alleged that in February or March 2016, S1 ordered him to travel to Denver during the week of April 24-28, 2016 for a conference, and that S1 denied his request to participate remotely in the conference via video or teleconference. He also averred that he had requested several accommodations, including a personal care attendant (PCA) who could travel with him but that neither S1 nor anyone else at the Agency offered to help him find a PCA. On April 28, 2016, while attending the conference, Complainant sustained serious injuries while transferring out of his wheelchair. He maintained that the Agency’s failure to provide him with effective accommodations during the conference was the cause of his accident and had taken a “tremendous toll” on his body. SIR 60. Both S1 and S2 stated that occasional travel to events such as the conference was an essential function of Complainant’s position as a Branch Manager in the Office of Civil Rights because of his status as a subject matter expert. S1 stated that Complainant had become upset with her for broaching the subject of reassignment to a different position due to his inability to travel. According to S1, Complainant was upset with the assumption that he could not travel. She claimed that Complainant had made it very clear that he could travel even though such travel was difficult for him. She also stated that Complainant had sent her a list of accommodations he needed for the trip including sending his shower chair to the conference, giving him a first-class airline ticket, and providing a PCA. S1 further stated that she had granted his request and had asked Complainant on multiple occasions whether he had found a PCA, to which Complainant did not respond. She stated that Complainant ultimately did not find a PCA and had ended up making the trip with every accommodation requested except for the PCA. SIR 66-67, 73. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2019005314 7 Complainant’s Request for Sanctions As noted above, Complainant contends on appeal that a default judgment should be entered in his favor as a sanction against the Agency for issuing an untimely and incomplete final decision and for failing to serve a copy of the initial final decision upon counsel. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, we find that the Agency failed to comply with the Commission’s regulations. In this case, it took 398 days for the Agency to issue the initial final decision from the date it had completed the supplemental investigation. In that decision, the Agency failed to address the claims raised in Complainant’s amendment. Seven months later, the Agency issued its second decision addressing the additional two claims. Although the Agency failed to issue a timely decision as required by regulation, we find that the Agency did not act in a manner to warrant a default judgment sanction. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency's 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep't of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016)(declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)); Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a complete final decision in this case, we decline. While we will not impose a sanction in the present case since the delay in issuance of the Agency decision did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. Beatrice B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001641 (September 17, 2020) (The Commission declined to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). 2019005314 8 As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decisions. Denial of Reasonable Accommodation - Incidents (2), (3), (4) & (6) An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (December 3, 2015). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Here, it is undisputed that Complainant is a qualified individual with a disability. He has shown that he could perform the essential functions of his position as the Agency’s Disability Program Manager regardless of whether he was in attendance in the office or not. With respect to incident (2), S1 stated that when Complainant informed her that he needed to avoid using a Metrorail station with an out-of-service elevator as well as cold temperatures, she offered to provide transportation at no cost to Complainant, and that Complainant had chosen to take leave in accordance with the telework policy that existed at the time. Regarding incidents (3) and (4), S1 and S2 both stated that all of Complainant’s requests for reasonable accommodation had been granted, including an iPhone, speech recognition software, a noise-cancelling headset and full- time telework for an interim period that lasted until June 2015. As to incident (6), S1 stated that Complainant had informed her that he could travel to Denver to attend the April 2016 conference, and that he had been given all of the accommodations he had asked for with the exception of a PCA. S1 further stated that although the Agency was willing to provide funding for the PCA, Complainant needed to make the necessary arrangements and had not done so. Complainant has not presented any documentary or testimonial evidence that contradicted S1’s and S2’s version of events. We therefore find that the Agency satisfied its obligation to provide Complainant with a reasonable accommodation pursuant to the Rehabilitation Act. Disparate Treatment - Incidents (1) & (5) 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, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2019005314 9 The prima facie inquiry may be dispensed with in this case, however, since S1 and S2 had articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1), S1 stated that she had asked Complainant for medical documentation in order to determine what accommodation would best suit his needs, as opposed to determining whether or not he had a disability in the first place. With regard to incident (5), S2 stated that Complainant had been suspended on a charge of neglect of duty by not responding to numerous emails from an employee with a disability who had been asking for a reasonable accommodation. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked why he believed that he had been discriminated against by S1 and S2, Complainant replied that S1 was younger than him and that S1 had commented to him that, “it must be hard getting old” or words to that effect. He also stated in general terms that he had been discriminated against because he was a Hispanic male over 40 with a physical disability, and that he had been subjected to reprisal actions in connection with various terms and conditions of his employment. IR 41-42; SIR 61-62. Apart from these assertions, Complainant has presented neither affidavits, declarations or unsworn statements nor documents from witnesses other than himself nor documents that undercut S1’s and S2’s explanations for the actions that were the subject of this complaint or otherwise cause us to question the veracity of S1 or S2 as witnesses. We therefore agree with the Agency that Complainant failed to show that either S1 or S2 had harbored unlawful considerations of Complainant’s disability, national origin, age, or EEO activity in connection with any of the above-referenced actions. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2019005314 10 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 finding that Complainant was not subjected to discrimination as alleged. 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. 2019005314 11 Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 5, 2021 Date