[Redacted], Susan B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021001800 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2021001800 Agency No. 4X148003619 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from a November 2, 2020 final agency decision (“FAD”) that found the Agency was in compliance with the terms of the settlement agreement into which the parties entered. See 29 C.F.R. § 1614.402; 29 C.F.R. § 1614.504(b); and 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent, P/L 101, Tier 1, Team A-1, at the Agency’s Los Angeles Customer Care Center (“LACCC”) in Los Angeles, California. On October 16, 2019, Complainant and the Agency entered into a negotiated settlement agreement (“NSA” or “Agreement”) to resolve a discrimination complaint that Complainant raised with an EEO Counselor. At issue are Terms 2, 3 and 4, which state: (2) [Complainant] agrees to provide Management with a list of previous dates, the appropriate documentation, and PS Form 3971s, to support changing the Time and Attendance code to 049 for the listed dates. These items will be provided to Management by October 26, 2019. 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. 2021001800 2 (3) Management…will research and review the Postal Policies and Regulations, the Collective Bargaining Agreement and the local leave policy to determine the proper procedures to follow for approving call ins for multiple consecutive days. If it is determined that any days beyond the first day should be approved in advance Management agrees to remove only the days that are considered approved in advance from the [August 13, 2019 LOW]. (4) Management agrees to contact Injury Compensation to determine whether or not [Complainant’s] medical documentation indicating lateness as an acceptable consideration related to her on the job injury. If it is determined that the lateness will be acceptable, Management agrees to remove the late infractions from [Complainant’s] August 13, 2019 LOW. On December 11, 2019, Complainant contacted the Agency in writing alleging it was in breach of the Agreement and requesting that the Agency reinstate her complaint for further processing. Specifically, Complainant alleged that the Agency failed to remove the August 13, 2019 LOW from her file and failed to research and apply the relevant Agency policies for unscheduled absences related to an injury on duty (“IOD”). Complainant was reassigned to LACCC because she sustained an injury that resulted in work restrictions preventing her from performing the duties of her previous position. The position at LACCC was five hours per day, so the remaining 3 hours of Complainant’s workday were paid through the Department of Labor (“DOL”). DOL would also compensate Complainant for unscheduled absences if it determined that the absence was due to her IOD. On August 13, 2019, Complainant’s Supervisor (“S1”) and the Operations Manager (“OM”) issued her a Letter of Warning (“LOW”) for unsatisfactory attendance between April and July 2019. As a progressive disciplinary action, the LOW relied on policies within the Agency’s Employee Labor Relations Manual (“ELM”), which defined “unscheduled absences” as “any absences from work that are not requested and approved in advance.” ELM 511.41. The LOW identified 14 unscheduled absences (approximately half were late arrivals of less than 1 hour) taken by Complainant, totaling 40.94 hours of leave. The LOW recounted an investigative interview where Complainant, accompanied by a representative, explained that the unscheduled absences were related to her IOD. After giving her explanation “full consideration,” the LOW concluded, “[p]ain is not an excuse to be late for work and pain is not compensable.” Complainant argues that the unscheduled absences should be changed to “scheduled” because they were attributable to her IOD. It is undisputed that if DOL compensates time when Complainant is not working, the Agency will consider that time to be “scheduled.” Therefore, even if Complainant’s absences were not approved in advance, they must be marked as “scheduled” if DOL determined that they were based on her IOD and compensated her. 2021001800 3 To obtain compensation from DOL for an unscheduled absence, Complainant would first complete a “Request for or Notification of Absence” (PS Form 3971), where supervisors would code the unscheduled absence as 049, IOD/LWOP (leave without pay). Complainant needed the form to be completed in this manner in order to include it with a claim for compensation to DOL. If, upon review, DOL accepted the claim, it would notify Complainant, and she could submit evidence to the Agency that DOL compensated her for the unscheduled absence. Upon receipt of this evidence of compensation, the Agency would change the record of unscheduled leave to “scheduled.” Failure to submit evidence of compensation within a specified time frame would result in the Agency recoding the unscheduled absences to NON IOD LWOP 059 or 060. The Agency asserts that “there was only one [unspecified] date that qualified to be removed from the LOW, however the rest of the dates on the letter were justified because of unsatisfactory attendance.” According to the Agency, if Complainant “is requesting that the instances of Late/Tardy be considered as "Scheduled" she must provide proof that DOL compensated her for the time.” The EEO Compliance Specialist, who issued the Agency’s determination on Complainant’s breach claim stated that she spoke with Complainant’s claims examiner and Complainant was “paid 3.0 hours for each day in question.” In other words, by the EEO Compliance Specialist’s account, DOL did not compensate any of Complainant’s unscheduled absences and therefore the Agency was not obligated to modify Complainant’s record to reflect that the absences were “scheduled.” The FAD concluded that the Agency did not breach the Agreement. The instant appeal followed. ANALYSIS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract’s construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O. v. United States Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). 2021001800 4 As a preliminary matter, we note that the Commission has long held that confidentiality is essential to the success of all ADR proceedings. See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 § II.a.3 (Aug. 5. 2015) (“Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them") citing the Administrative Dispute Resolution Act of 1996 (“ADRA”) codified as 5 U.S.C. §574. Therefore, this decision has not considered Complainant’s references to statements that OM allegedly made during the alternative dispute resolution (“ADR”) process that culminated in the October 16, 2019 Agreement. Complainant’s Obligations under the Agreement Term 2 of the Agreement explains that in order for the Agency to grant Complainant’s request that it change the Time and Attendance Codes for her unscheduled absences to 049 (IOD-related absence), she must provide it with “[1] a list of previous dates, [2] the appropriate documentation, and [3] PS Form 3971s [corresponding with the list of previous dates]” by October 26, 2019. It is undisputed that Complainant timely fulfilled requirement 1 by basing her response on the list in the August 13, 2019 LOW, and partially fulfilled requirement 3 by timely providing most of the corresponding PS Form 2971s for the listed dates. We conclude that Complainant also met requirement 2 for the dates listed on the LOW where she provided a PS Form 3971. Applying the “plain meaning” rule, “appropriate documentation,” refers to documentation that supports changing the unscheduled leave for the dates listed in the LOW to code 049. The PS Form 3971s constitute “appropriate documentation” to warrant changing the unscheduled absence codes to 049 because the comments portion of the PS Form 3971s Complainant provided identify her IOD as the reason for her unscheduled absences. Additional information is not required because DOL, not the Agency, is responsible for determining whether the absence is attributable to Complainant’s IOD. Term 3 of the Agreement requires, that Complainant show that her listed absences (those on the LOW) should be “considered approved in advance” before it will change them from “unscheduled” to “scheduled.” Complainant emphasizes that all of the PS Form 3971s she submitted are “approved” absences, which, while relevant to agency policies on disciplinary actions, is not relevant to determining whether the Agency breached the Agreement. “Approved” in the context of the Agreement does not warrant recategorizing her leave to “scheduled,” as the “approved” absences were not approved in advance. If Complainant provides evidence that DOL compensated her for the time she was absent, then the Agency must consider the absence to be approved in advance and change it to “scheduled” in the record. There is no evidence in the record that Complainant submitted the PS Form 3971s to DOL, or that DOL compensated her for the absences listed on the LOW. Without this evidence, the Agency is not obligated to change the “unscheduled” leave to “scheduled.” 2021001800 5 However, the Agency has not provided evidence that it properly coded all of the PS Form 3971s Complainant provided, without which, she would be prevented from demonstrating that the absences should be “considered approved in advance.” To the extent that it has not already done so, the Agency must change the unscheduled absence codes on the PS Form 3971s Complainant submitted in accordance with Term 2, to 049 IOD/LWOP, so that Complainant can obtain the necessary documentation to fulfill Term 3 of the Agreement. Agency/Management’s Obligations under the Agreement Although it is ultimately Complainant's burden to prove that a breach has occurred, the Commission has long held that the "agency has the burden of providing evidence and/or proof to support its final decisions." O’Malley v. United States Postal Serv., EEOC Appeal No. 0120064540 (Mar. 12, 2008) citing Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993) see also Complainant v. Dep’t of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014). This burden extends to establishing compliance with settlement agreements. See, e.g. Sade M. & Elsa R. v. Army, EEOC Appeal Nos. 0120180292 & 0120180294 (Feb. 22, 2019). Thus, a FAD addressing a complainant’s allegation of breach must be supported by persuasive independent evidence in the record. O’Malley. Such evidence must address, in detail, the complainant’s specific allegations, and explain why and how the agency reached its conclusion that no breach occurred. Id., Ziton v. United States Postal Serv. EEOC Appeal No. 0120103435 (May 16, 2012) (breach claim remanded for supplemental investigation where the agency did not provide any documentary evidence to support its finding that no breach occurred and failed to address the complainant’s specific arguments). The Commission has also required the agency to submit supporting evidence with respect to how it performed its obligations under a settlement agreement. See, e.g. Ruiz v. United States Postal Serv., EEOC Appeal No. Appeal No. 0120091682 (Jun. 9, 2010) (breach claim remanded for supplemental investigation where, among other things, the agency failed to explain why it was instructing the complainant to provide documentation before it would comply with a provision requiring it to restore the complainant’s leave). Evidence that would allow for a determination on whether a breach occurred may include, but is not limited to, affidavits from relevant personnel who can address the breach allegation in detail, and clearly explain how the agency determined that it was not in breach. Id. Here, the Agency failed to provide sufficient evidence to allow a determination on whether it is in breach of Terms 3 and 4 of the Agreement. Term 3 required Management to: (1) research and review the Postal Policies and Regulations, the Collective Bargaining Agreement (“CBA”) and the local leave policy, (2) based on these documents, determine the proper procedures to follow for approving call ins for multiple consecutive days, and (3) if it is determined that any days beyond the first day of an unscheduled absence should be considered “approved in advance” (i.e. “scheduled”) recategorize them from “unscheduled” to “scheduled” and remove them from the list on the August 13, 2019 LOW. 2021001800 6 The Agency’s FAD does not identify, and the record does not contain, any relevant excerpts from the “Postal Policies and Regulations, the CBA and the local leave policy” that would allow for a determination on how to properly record an unscheduled multi-day absence. Also, the record lacks sufficient documentary evidence, such as signed statements, to confirm that the named Management Officials, S1 and OM, reviewed these materials. Instead, the FAD paraphrases (undated) comments that it attributes to S1 and OM.2 Even if the Commission could accept this as testimonial evidence, it does not support the Agency’s assertion that it complied with the Agreement. According to the FAD, OM said she investigated the CBA, MOU, and ELM, yet the FAD fails to identify what provisions she reviewed. OM also allegedly stated that she was “adhering to eRMS [the Agency’s time and attendance software] rules that are supported by Headquarters,” explaining that when an employee calls in and requests multiple consecutive days of leave, “the entire block is deemed ‘unscheduled’ in eRMS.” (OM clarified that an “unscheduled” absence can be changed to “scheduled” in eRMS if the employee provided documentation that DOL compensated them for the absence). Other than this alleged assertion by OM, there is no evidence to indicate that the default field for multi-day unscheduled absences in eRMS is the Agency’s governing policy for multi-day absences. The Agency’s failure to identify the specific “proper procedures” within Agency policies, regulations and/or the CBA coupled with the lack of record testimony from S1 and OM is especially problematic given that the FAD’s unsupported account of OM’s statements about multiple consecutive unscheduled absences conflicts with Complainant’s account of statements OM made to her on the same matter. Also, these deficiencies in the record preclude the Agency’s finding that all of the days in Complainant’s multi-day unscheduled absences listed in the LOW were properly recorded as “unscheduled.” The Agency has not shown that it met any of its obligations under Term 3. Under Term 4, Management had two obligations: (1) contact Injury Compensation for a determination on whether the absences due to late arrival, listed on the LOW were attributable to Complainant’s IOD, and (2) remove any late or tardy absences listed on the LOW that are found to be the result of Complainant’s IOD. Applying the Plain Meaning Rule, Term 4 does not require any evidence from Complainant in order for the Agency to meet its obligations. Regardless of the PS Form 3971s Complainant provided, Term 4 applies to all late or tardy absences listed in the LOW. 2 The Agency was previously made aware, in a related decision involving this Complainant, that a FAD containing incomplete explanations and unaccompanied by supporting evidence is not sufficient to withstand a breach claim. Susan B. v. United States Postal Serv., Appeal No. 2019005023 (Nov. 29, 2019). As with the instant decision, we offered examples and explanations of what additional information and types of supporting evidence to include in a response to an appeal of a decision a breach allegation. We urge the Agency to contact its assigned EEOC Compliance Officer if it requires further guidance. 2021001800 7 Whether or not a late or tardy absence is removed is based on Injury Compensation’s assessment, not whether there is a record of compensation by DOL. We also note that Term 4 does not require the Agency to recategorize the late and tardy absences from “unscheduled” to “scheduled.” As with Term 3, the Agency fails to provide sufficient evidence of compliance with Term 4. Although Complainant confirms that S1 and OM called Injury Compensation, the record is silent on whether these phone calls addressed the issue of whether the absences due to late arrival were attributable to Complainant’s IOD. Significantly, the record did not include a statement from a relevant official within Injury Compensation addressing whether, based on Complainant’s medical information on file, the late/tardy absences included in the LOW were attributable to Complainant’s IOD. Delay in Processing Notice of Breach Chapter 3(V) of the MD-110 provides that the settlement agreement must contain the enforcement procedures available under 29 C.F.R. § 1614.504 in the event that the agency fails to comply with the terms of the resolution. In relevant part, 29 C.F.R. § 1614.504 (b) provides that upon receiving notice of breach, an agency shall resolve the matter and respond to the complainant in writing. If the agency fails to respond in writing, or if the complainant is not satisfied with the agency's attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement or decision. Id. The complainant may file such an appeal 35 days after they served the agency with the allegations of noncompliance but must file an appeal within 30 days of receipt of an agency's determination. On December 11, 2019, Complainant, in accordance with the procedure set forth in the Agreement, notified the Agency’s EEO Compliance Specialist that the Agency breached the Agreement. On appeal, Complainant cites evidence that the Agency confirmed receipt of the breach claim the next day but failed to issue a FAD on the matter for nearly 10 months. The Agency has not addressed the delay in its FAD or in response to Complainant’s appeal. Upon review of the Agreement, we determined that it contains only part of the enforcement procedures identified under, 29 C.F.R. § 1614.504. Rather than notify Complainant of her right to appeal to the Commission if the Agency failed to timely respond to her breach notice, the fine print of the Agreement merely states that the Agency “will respond to [Complainant’s breach notice] with 29 C.F.R. § 1514.504.” As the Agreement improperly failed to inform Complainant of her right to appeal to the Commission if she did not receive a response to her breach allegation, it unduly delayed processing of her breach claim. 2021001800 8 New Claims Raised on Appeal Pursuant to 29 C.F.R. § 1614.504(c) allegations that subsequent acts of retaliation or discrimination violate a settlement agreement shall be processed as separate complaints. Likewise, if Complainant wishes to pursue new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). Complainant’s allegation that the Agency breached the Agreement when it failed to remove the LOW from her record, is more accurately characterized as an allegation of a subsequent act of discrimination. Nothing in the plain language of the Agreement obligates the Agency to remove the LOW from Complainant’s file. See Carter v. Dep’t of the Army, EEOC Appeal No. 01985009 (Jul. 2, 1999) citing Jenkins-Nye v. Gen. Serv. Admin., EEOC Appeal No. 019851903 (Mar. 4, 1987) (in the absence of writing, an interpretation of an Agreement cannot be enforced). Moreover, Complainant appears to raise an alternate argument of reprisal by alleging that the “Agency is clearly acting in a malicious manner and gave this frivolous LOW out of spite.” Complainant raises new (non-breach) allegations of reprisal on appeal, including, but not limited to, Management allegedly failing to maintain proper records of her attendance, so that DOL is provided incorrect information for purposes of calculating compensation for unscheduled absences. Complainant also alleges that the Agency is selectively applying attendance and leave policies in a retaliatory and discriminatory manner. Both parties raise matters concerning the LOW, such as evidence submitted by Complainant indicating that unscheduled late or tardy absences marked as “approved,” were not to be the subject of disciplinary action under a memorandum of understanding (“MOU”) and the CBA. Again, these matters are outside the scope of a decision on a breach of settlement agreement. If Complainant’s appeal was intended to address these reprisal allegations, she should raise these matters with an EEO Counselor pursuant to 29 C.F.R. § 1614.105. Complainant’s appeal further alleges discrimination, retaliation, and denial of a reasonable accommodation, based on issues that were already raised in another EEO Complaint and are currently pending a hearing before an EEOC Administrative Judge (“AJ”).3 3 On February 26, 2020, the Agency accepted Agency Case No. 4X048001619 (EEOC Appeal No. Appeal No. 2019005023) for investigation and consolidated it with a related complaint filed by Complainant, Agency Case No. 4X148001020. Afterward, Complainant requested a hearing, the complaints were docketed under EEOC Hearing No. 480202100187X. The AJ’s March 4, 2021 “Order Following Initial Conference” frames the complaint to include 8 claims, none of which concern 049 coding and document discrepancies, however, “Incident 1” of the complaint alleges: “From on or about September 24, 2018, through an unspecified date, [Complainant] was not given the reasonable accommodations described in a modified job offer issued by management in August 2018, such as chair, ergonomic equipment, and extra break, which caused a reduction in her work hours,” which are consistent with Complainant’s “new” allegations on appeal. 2021001800 9 While these claims also will not be adjudicated in this decision, we note that allegations raising matters that are identical to a previously raised claim that is pending before or has been decided by the Commission or the Agency fail to state a claim. 29 C.F.R. § 1614.107(a)(1), see also, Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). However, the Commission has specifically held that denial of a reasonable accommodation constitutes a recurring violation that repeats each time the accommodation is needed. EEOC Compliance Manual, Section 2, "Threshold Issues," p. 2-73, EEOC Notice 915.003 (July 21, 2005), see also, Harmon v. Office of Personnel Management, EEOC Request No. 05930365 (Nov. 4, 1999), Peacock v. U.S. Postal Service, EEOC Appeal No. 0120032372 (July 31, 2003). To the extent that the denied accommodation is ongoing, Complainant may raise a new complaint with an EEO Counselor or submit a Motion to Amend to the AJ (to be accepted at the AJ’s discretion). CONCLUSION Accordingly, the Commission VACATES the final agency decision and REMANDS this matter to the agency for further processing in accordance with the ORDER below. Applying the “plain meaning” rule, Term 4 does not require any evidence from Complainant in order for the Agency to meet its obligations. Regardless of the PS Form 3971s Complainant provided, Term 4 applies to all late or tardy absences listed in the LOW. Whether or not a late or tardy absence is removed is based on Injury Compensation’s assessment, not whether there is a record of compensation by DOL. We also note that Term 4 does not require the Agency to recategorize the late and tardy absences from “unscheduled” to “scheduled.” ORDER The Agency is ORDERED to take the following actions: 1. Within fifteen (15) calendar days of this Decision, because the Agency failed to properly notify Complainant of her option, under 29 C.F.R. § 1614.504(b), to submit her breach notice to the Commission if the Agency failed to respond within in 35 days, causing a significant delay in the processing of her breach notice, the Agency shall offer Complainant the options of specific performance of Terms 2, 3 and 4 of the Agreement, or reinstatement of her complaint at the point where processing ceased. 2. If Complainant requests reinstatement, the Agency shall reinstate her complaint immediately upon receipt of her request. 3. If Complainant requests specific performance, or fails to respond, the Agency shall, within thirty (30) calendar days of receipt of her request, or, if she fails to respond, within thirty (30) calendar days of the date she received the offer to reinstate, the Agency shall supplement the record with evidence clearly showing that it has complied with the terms of the October 16, 2019 Settlement Agreement, including but not limited to: (1) relevant provisions of 2021001800 10 the CBA and agency policies and regulations that address how to record unscheduled multi-day absences, (2) documentation reflecting proper coding of the absences listed in the LOW, and (3) an affidavit from an official within Injury Compensation, with knowledge of Complainant’s IOD medical documentation, responding to whether Complainant’s late/tardy unscheduled absences listed in the LOW were attributable to her IOD. The Agency shall also provide Complainant an opportunity to supplement the record with documentation of compensation by DOL for the dates listed in the LOW. 4. Within thirty (30) calendar days of this Decision, the Agency shall issue a new decision concerning whether it breached the October 16, 2019 Settlement Agreement. 5. A copy of the Agency's new decision or documentation of reinstatement of Complainant’s complaint must be sent to the Compliance Officer as referenced herein. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. 2021001800 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021001800 12 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 8, 2021 Date