[Redacted], Trena M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 5, 2021

Appeal No. 2020002239 (E.E.O.C. Aug. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trena M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020002239 Hearing No. 480-2018-00213X Agency No. 4F-900-0236-17 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND Complainant began her employment with the Agency as a Noncareer City Carrier Assistant (CCA) in early March 2016, and was assigned to the Los Feliz Postal Station, located in Los Angeles, California. On August 3, 2017, Complainant filed a complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) by subjecting her to a hostile work environment based on the following acts of harassment: 1. On December 10, 2016, through April 3, 2017, on several occasions, the acting 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. 2020002239 2 supervisor coerced her into performing sexual acts with him and sent her unwanted text messages of a sexual nature; 2. On April 27, 2017, after Complainant reported the sexual harassment to management, she was initially sent home and then reassigned to another office for three days; 3. On multiple days between April 30, 2017 and July 24, 2017, Agency managers yelled at Complainant and threatened her with discipline; 4. On April 30, 2017, the Agency managers removed Complainant’s closing responsibilities; and 5. On May 10, 2017, Complainant was forced to drive an unsafe vehicle. Complainant also alleged that the Agency retaliated against her with respect to claims 2-5.2 Following a hearing, an EEOC Administrative Judge (AJ), issued a decision finding the Agency discriminated against Complainant on the basis of sex by subjecting her to a hostile work environment due to the actions of the acting supervisor in claim 1. However, the AJ found no discrimination based on sex regarding claims 2-5. Further, the AJ found the Agency retaliated against Complainant regarding claims 2, 4, and 5. However, the AJ found the Agency did not retaliate against Complainant regarding claim 3. To remedy the discrimination and retaliation found, the AJ ordered the following: 1. Within 30 days of issuing its final decision, the Agency to award Complainant back pay with interest for 8 hours that she was not permitted to work on April 28, 2017, the 4 hours she was not permitted to work on April 29, 2017, and 27 hours resulting from the removal of her closing duties during the weeks of April 30 - June 12, 2017, for a total of 39 hours. The Agency shall also determine and include in its back pay award the amount of other benefits, i.e., sick and annual leave, due Complainant. The rate of pay for 33 of the 39 hours (3 hours for April 28 + 3 hours for April 29 + 27 hours for the period of April 30 - June 12) shall include the night shift differential rate. For the six weeks beginning April 29, 2017, and ending June 9, 2017, the Agency shall add 4 hours to the total hours Complainant worked during each of those weeks. The Agency shall add 3 hours to the total hours Complainant worked during the week ending June 16, 2017. 2 Complainant withdrew her claim that she was discriminated against based on race. Complainant also withdrew her claim for purposes of liability that she was retaliated against when she was removed from Amazon Fresh, when she was sent home or to other stations to case mail, and when management refused to accept her doctor’s notes and prevented her from returning to work from Family Medical Leave Act (FMLA) leave. Complainant retained these issues for the purposes of damages. 2020002239 3 Further, if any of those hours are eligible for overtime compensation, Complainant’s back pay shall be calculated to include the applicable overtime rate. 2. Within 30 days of issuing its final decision, the Agency shall pay Complainant $256,339.02 for compensatory damages (consisting of $6,339.02 in pecuniary damages and $250,000 in nonpecuniary damages). 3. The Agency shall pay $121,839.07 for reasonable attorney’s fees and costs (consisting of $118,346 in attorney’s fees and $3,493.07 in costs). 4. Within 60 days of issuing its final decision, the Agency shall identify and implement specific steps it will take to ensure that the acting supervisor does not engage in sexual harassment of other Agency employees. Specifically, the Agency was to consider whether to take disciplinary action against the acting supervisor. 5. Within 60 days of issuing its final decision, the Agency shall develop and fully implement procedures within the Agency’s Los Angeles District to ensure that an Agency determination is made as to the merits of each employee complaint alleging sexual harassment within a reasonable amount of time and to ensure that appropriate corrective action is identified and implemented.3 6. No later than 30 days after it adopts the procedures, the Agency shall issue a written notice to each Postmaster or Officer in Charge within the Los Angeles District notifying them of the adoption and implementation and providing them with a copy of the procedures. 7. Within 60 days of adoption of the procedures described in Paragraph 5, the Agency shall provide training to managers and supervisors in the Agency’s Los Angeles District office, to appropriate Labor Relations managers and staff, and to the Postmaster (and/or Officer in Charge) and all managers and supervisors in the Agency’s Los Feliz Post Office. 8. Within 60 days of adoption of the procedures described in Paragraph 5, the Agency shall notify all employees of the Los Feliz Post Office at a stand up talk or other appropriate meeting that the Agency has adopted and implemented the procedures. 9. The Agency shall post a Notice of the finding of discrimination and retaliation. On November 6, 2019, the Agency issued a notice of final action fully implementing the AJ’s decision and relief. The final action afforded Complainant appeal rights to the Commission. Complainant did not file an appeal from the Agency’s final action. 3 The procedures in this part of the AJ’s order are only summarized here in this part of our decision. The full procedures as set forth by the AJ are set out in full in the Order of this decision. 2020002239 4 On December 11, 2019, Complainant sent a Notice of Non-Compliance to the Agency stating the Agency is not in compliance with the payment of awarded damages, backpay and benefits, and attorney’s fees and costs. Further, Complainant noted no proof has been provided that the requisite Notice has been posted. Complainant requested payment of applicable interest on the awarded damages, backpay, and attorney’s fees from the date due, i.e. December 6, 2019. In addition, Complainant requested attorney’s fees through December 11, 2019, caused by the Agency’s non-compliance. She stated attorney’s fees will be ongoing to ensure Agency compliance. However, to date she stated her attorney spent 1.3 such hours. Complainant attached an invoice for $780.00 in attorney’s fees (1.3 hours x $600.00 hourly rate). Further, Complainant requested proof that the Agency complied with the equitable relief ordered. On January 14, 2020, the Agency mailed Complainant a check in the amount of $256,339.02 for compensatory damages. Complainant filed a January 21, 2020 petition with the Commission seeking enforcement of the Agency’s November 6, 2019 final action. Complainant noted the Agency had not responded to her notice of non-compliance. Complainant stated the Agency: (1) has not paid her backpay with interest and benefits; (2) has not paid attorney’s fees and costs; (3) has not provided information on whether it posted the requisite Notice; (4) has not paid interest on the full compensatory damages award for the period of December 6, 2019 through January 24, 2020; (5) has not paid her interest on unpaid attorney’s fees and costs which has continued to accrue since December 6, 2019; and (6) has not paid her for 1.3 hours of attorney’s fees for work done to secure compliance with the Agency decision and to obtain payment of the awarded damages and fees. On February 5, 2020, Complainant sent the Agency a Second Notice of Non-Compliance. Complainant noted since filing her December 11, 2019 filing, the Agency has paid pecuniary and nonpecuniary damages, without interest. She also stated after filing her petition with the Commission, the Agency paid Complainant her litigation costs, without interest. Complainant stated the Agency has not provided any information regarding its compliance with the equitable relief and requested enforcement of the equitable relief provisions in its decision. On March 16, 2020, Complainant supplemented the record on her petition for enforcement of the Agency’s decision. Specifically, Complainant provided a copy of correspondence indicating that on February 3, 2020, she received payment of $1,858.98 as reimbursement for her litigation expenses. Complainant noted she did not receive interest accrued from December 6, 2019 through February 3, 2020, as payment was due by December 5, 2019, per the AJ’s Order and the Agency’s final action. On March 16, 2020, Complainant supplemented her prior petition for enforcement of the Agency’s final action. Complainant noted the Agency had not fully complied with the following: (1) has not paid her backpay with interest; (2) has not paid attorney’s fees and has not paid costs to Complainant’s attorney (although she stated the Agency has paid $1,858.98 for reimbursement for her own litigation expenses); (3) has not provided information on whether it 2020002239 5 posted the requisite Notice; (4) has not paid interest on the awarded damages, backpay, and attorney’s fees from the date due, i.e. December 6, 2019; (5) has not paid interest on the unpaid attorney’s fees and costs which have continued to accrue since December 6, 2019; (6) has not paid 1.3 hours related to her attorney’s work in securing compliance with the Agency’s decision and payment of the awarded damages and fees; (7) has not complied with the equitable relief ordered. Further, Complainant requests additional attorney’s fees and costs incurred in pursuit of her compliance, including for preparing the Second Notice of Non-compliance and her supplement to the petition for enforcement. On March 20, 2020, the Agency filed its interim report of compliance. With regard to the requirement to pay Complainant backpay with interest and other benefits, it stated its compliance with this provision is ongoing. With regard to the payment of damages, the Agency noted on January 14, 2020, it mailed Complainant a check in the amount of $256,339.02 for damages, which it stated was received on January 16, 2020. Regarding the payment of attorney’s fees and costs, the Agency stated on March 18, 2020, checks in the amount of $106,430.09 and $13,550 were mailed to Complainant’s attorneys. The Agency stated on January 31, 2020, Complainant was mailed a check in the amount of $1,858.98 for costs associated with processing the complaint, which it stated was delivered on February 3, 2020. Regarding the provision to consider taking disciplinary action against the acting supervisor, the Agency stated this is ongoing. Regarding the provision to develop and fully implement procedures within the Agency’s Los Angeles District, the Agency reported compliance with that part of the order is ongoing. Regarding the requirement to post a Notice, the Agency stated compliance with that part of the order is ongoing. The Agency attached several documents to its interim compliance report. The Agency provided a copy of the January 14, 2020 letter purporting to send a check in the amount of $256,339.02 for compensatory damages to Complainant. The Agency provided a copy of the check dated January 3, 2020, in the amount of $256,339.02 payable to Complainant. Further, the Agency provided a copy of the certified mail receipt indicating the check was received at Complainant’s address of record on January 16, 2020. The Agency also provided a copy of the March 18, 2020 letter to the firm that represented Complainant purporting to send a check in the amount of $106,430.09 for attorney’s fees. The Agency provided a copy of the check dated February 4, 2020, in the amount of $106,430.09 payable to the firm. The Agency also provided a March 18, 2020 letter addressed to one of Complainant’s attorneys (Attorney 2) purporting to send a check in the amount of $13,550 for the awarded attorney’s fees. The Agency provided a copy of the check dated February 4, 2020, payable to Attorney 2 in the amount of $13,550. The Agency also provided a copy of the January 31, 2020 letter to Complainant purporting to send her a check in the amount of $1,858.98 for her own costs. The Agency provided a copy of the check dated January 22, 2020, payable to Complainant in the amount of $1,858.98. 2020002239 6 The Agency also provided the signed certificate of service showing receipt of that check at Complainant’s address of record on February 3, 2020. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.504(a) provides that a final agency action that has not been the subject of an appeal or a civil action shall be binding on the agency. The regulation provides further that if a complainant believes that the agency has not complied with the terms of the final decision, that the complainant shall notify the Agency EEO Director, in writing, within thirty days of the date on which the complainant knew or should have known of the noncompliance. 29 C.F.R. § 1614.504. If Complainant does not receive a response or is not satisfied with said response, a complainant may appeal to the Commission for a determination as to whether the agency is in compliance. 29 C.F.R. § 1614.504(b). Back pay and Benefits The Agency was required to pay Complainant back pay with interest for 8 hours on April 28, 2017, 4 hours on April 29, 2017, and 27 hours for the period of April 30, 2017, and June 12, 2017, for a total of 39 hours. The Agency was also to determine and include in its back pay award the amount of other benefits due Complainant. In its interim compliance report, the Agency simply states, without explanation, its compliance with this provision is ongoing. Thus, we find the Agency failed to show complied with this provision and the matter is remanded for further processing. Compensatory Damages The Agency was required to pay Complainant $256,339.02 in compensatory damages within 30 days of issuing its final decision. The Agency issued its final action of November 6, 2019. The record reveals that the Agency issued Complainant a check dated January 3, 2020, in the amount of $256,339.02. The check was mailed to Complainant on January 14, 2020, and received on January 16, 2020. Because the check was not received by Complainant within 30 days of November 6, 2019 as ordered, we find the Agency has failed to timely comply with the listed provision and we shall order interest on the late compensatory damage payment from December 7, 2019 until January 16, 2020. Attorney’s Fees and Costs Attorney’s fees were awarded to Attorney 1 in the amount of $104,796 and to Attorney 2 in the amount of $13,550 for a total of $118,346 in attorney’s fees. Costs were awarded in the amount of $1,634.09 to the firm that represented Complainant and $1,858.98 to Complainant for her personal costs equaling $3,493.07 in total allowable costs. 2020002239 7 Thus, the Agency was required to pay $121,839.07 in total attorney’s fees and costs ($118,346 + $3,493.07). The AJ and Agency’s decisions did not state a deadline for the payment of attorney’s fees and costs. The record reveals the Agency prepared a check dated January 22, 2020, in the amount of $1,858.98 (personal costs) and sent it to Complainant on January 31, 2020. Complainant received the check for payment of her own personal costs on February 3, 2020. Thereafter, two checks were generated on February 4, 2020; one payable to the law firm that represented Complainant in the amount of $106,430.09 and one payable to Attorney 2 in the amount of $13,550. The Agency provided evidence that both checks were mailed on March 18, 2020. Complainant does not claim that her attorneys did not receive the checks. Thus, we find the Agency has shown substantial compliance with the provision requiring it to pay a total of $121,839.07 in attorney’s fees and costs. Disciplinary Action The Agency was ordered to identify and implement the specific steps it will take to ensure that the acting supervisor does not engage in sexual harassment of other Agency employees. Specifically, the Agency was to consider taking disciplinary action against the acting supervisor. In its interim compliance report, the Agency simply states, without explanation, its compliance with this provision is ongoing. Thus, we find the Agency failed to show complied with this provision and the matter is remanded for further processing. Equitable Relief Within 60 days of issuing its final decision, the Agency was to develop and implement procedures within its Los Angeles District to ensure that an Agency determination is made as to the merits of each employee complaint alleging sexual harassment within a reasonable amount of time and to ensure that appropriate corrective action, as necessary, is identified and implemented. In its interim compliance report, the Agency simply states, without explanation, its compliance with this provision is ongoing. Thus, we find the Agency failed to show complied with this provision and the matter is remanded for further processing. Moreover, we note that subsequent provisions of relief were to be taken within specified time frames after the Agency adopts the requisite procedures. We find the Agency to be noncompliant with those subsequent provisions as well. Thus, these matters of equitable relief are remanded to the Agency for further processing. Posting The Agency was ordered to post a Notice of the finding of discrimination and retaliation. In its interim compliance report, the Agency simply states, without explanation, its compliance with this provision is ongoing. Thus, we find the Agency failed to show complied with this provision and the matter is remanded for further processing. 2020002239 8 Additional Attorney’s Fees and Costs Because the Agency has failed to show compliance with the Agency decision, we have included an order for attorney’s fees for work performed by Complainant’s attorney in filing the instant appeal. CONCLUSION Accordingly, the Agency’s final decision finding that it was in compliance with its final order is VACATED and the matter is REMANDED to the Agency for further action in accordance with the Order herein. ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 60 days of the date this decision is issued, the Agency shall award Complainant back pay with interest, calculated in accordance with 5 C.F.R. § 550.805 and 29 C.F.R. § 1614.501 for the 8 hours that she was not permitted to work on April 28, 2017, the 4 hours she was not permitted to work on April 29, 2017, and 27 hours resulting from the removal of her closing duties during the weeks of April 30 - June 12, 2017, for a total of 39 hours. The Agency shall also determine and include in its back pay award the amount of other benefits, i.e., sick and annual leave, due Complainant, pursuant to 29 C.F.R §1614.501 and 5 C.F.R. §550.805(g)(1). a. The rate of pay for 33 of the 39 hours (3 hours for April 28 + 3 hours for April 29 + 27 hours for the period of April 30 - June 12) shall include the night shift differential rate. b. For the six weeks beginning April 29, 2017, and ending June 9, 2017, the Agency shall add 4 hours to the total hours Complainant worked during each of those weeks. The Agency shall add 3 hours to the total hours Complainant worked during the week ending June 16, 2017. If any of those added hours are eligible for overtime compensation, Complainant’s back pay shall be calculated to include the applicable overtime rate. 2. Within 60 days of the date this decision is issued, the Agency shall identify and implement the specific steps it will take to ensure that the acting supervisor does not engage in sexual harassment of other Agency employees. Specifically, the Agency shall consider whether to take disciplinary action against the acting supervisor. 2020002239 9 3. Within 60 days of the date this decision is issued, the Agency shall develop and fully implement procedures within the Agency’s Los Angeles District to ensure that an Agency determination is made as to the merits of each employee complaint alleging sexual harassment within a reasonable amount of time and to ensure that appropriate corrective action, as necessary, is identified and implemented. The procedures shall at a minimum include the following: a. Designation of a specific employee or office (hereinafter, the Designated Agency Monitor) within the Los Angeles District with the responsibility to monitor and track the status of the Agency response to each employee allegation of sexual harassment to ensure that the Agency reaches a determination regarding the merit of each complaint and to ensure that appropriate corrective actions is identified and implemented; b. Within five days after the commencement of a sexual harassment investigation, the Agency manager responsible for ensuring that the investigation is completed (the Responsible Agency Manager) shall notify the Designated Agency Monitor of the date the investigation commenced and the date the Responsible Agency manager anticipates the investigation will conclude; c. Within two days of receiving notice that an investigation of sexual harassment has commenced, the Designated Agency Monitor shall notify the District Manager or designee and shall obtain from the District Manager the identity of the specific Enforcement Manager. The Enforcement Manager is the Agency manager with the necessary authority to ensure that the Responsible Agency Manager meets the deadlines adopted under these procedures and/or otherwise completes the investigation in a timely manner. d. The Responsible Agency Manager shall have the following responsibilities under these procedures: i. Within two days, notify the Designated Agency Monitor when the investigation is completed; ii. Within 30 days after the conclusion of the investigation, provide written notice to the complainant informing the complainant whether the complaint allegations are substantiated and describing the basis for the determination. If the allegations are substantiated, the notice shall also include a description of the specific steps that Agency will take to end the harassment, to make the complainant whole by restoring lost employment benefits or opportunities, and to prevent the misconduct from recurring; iii. Within 30 days of issuing the written notice described above, ensure that any corrective actions set forth in the written notice have been completed; 2020002239 10 e. The Designated Agency Monitor shall have the following responsibilities under these procedures: i. If the Designated Agency Monitor has not received notice that the investigation has been completed within 30 days of the commencement, the Monitor shall immediately contact the Responsible Agency Manager to ascertain when the investigation will conclude; ii. If the Designated Agency Monitor has not received notice that the investigation has been completed by the revised deadline specified by the Responsible Agency Manager or if the Responsible Agency Manager has not provided a revised deadline within two days of being contacted, the Designated Agency Monitor shall promptly notify Enforcement Manager that the investigation has extended beyond the completion deadline; iii. If the Designated Agency Monitor has not received notice that the written notice described in paragraph 3(d)(ii) has been provided to the complainant within 30 days after the conclusion of the investigation, the Responsible Agency Manager did not meet the deadline for issuing the written notice; iv. If the Designated Agency Monitor has not received notice that the corrective actions described in paragraph 3(d)(ii) have not been completed within 30 days of the written notice being issued, the Monitor shall promptly notify the Enforcement Manager that the Responsible Agency Manager did not meet the deadline for implementing the corrective actions; f. If the Enforcement Manager receives notice from the Designated Agency Monitor that the deadline for completing the investigation, the deadline for issuing the written notice, or the deadline for implementing the corrective actions have not been met, the Enforcement Manager shall take the steps necessary to ensure that the investigation is completed and/or the written notice is issued and/or the corrective actions are completed within seven calendar days of receiving such notice. 4. Within 30 days after it adopts the procedures, the Agency shall issue a written notice to each Postmaster or Officer in Charge within the Los Angeles District notifying them of the adoption and implementation and providing them with a copy of the procedures. 5. Within 60 days of adoption of the procedures described in Paragraph 3, the Agency shall provide training to managers and supervisors in the Agency’s Los Angeles District, to appropriate Labor Relations managers and staff, and to the Postmaster (and/or Officer in 2020002239 11 Charge) and all managers and supervisors in the Agency’s Los Feliz Post Office. The training shall address the obligations of Agency managers and supervisors under Title VII to promptly initiate and complete the investigation of complaints of sexual harassment. This training shall be at least one hour in duration and shall be in addition to other training regarding Title VII that any such managers or supervisors have already received. In particular, the training shall emphasize or address the following: a. Identification of the Designated Agency Monitor and the role and authority of the Designated Agency Monitor in tracking and ensuring the deadlines in the procedures are met; b. The role of the Enforcement Manager in ensuring the investigation is completed, the written notice is issued, and any appropriate corrective actions are completed in a prompt and timely manner; c. The specific role and responsibility of each manager and supervisor within the Los Angeles District, within the Labor Relations office, and within the Los Feliz Post Office under the procedures. 6. Within 60 days of adoption of the procedures described in Paragraph 3, the Agency shall notify all employees of the Los Feliz Post Office at a stand up talk or other appropriate meeting that the Agency has adopted and implemented the procedures. The notice should describe the purpose of the procedures, should identify the Designated Agency Monitor, and should include a description of the role and authority of the Designated Agency Monitor in implementing the procedures. The Agency shall also provide a copy of the procedures, including contact information for the Designated Agency Monitor, to each employee. 7. Within 30 days of the date this decision is issued, the Agency shall pay Complainant interest on the late compensatory damage payment from December 7, 2019 until January 16, 2020. POSTING ORDER (G0617) The Agency is ordered to post at its Los Feliz Post Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020002239 12 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. 2020002239 13 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). 2020002239 14 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 August 5, 2021 Date