[Redacted], Valentin G., 1 Complainant,v.Steve Jurcyzk, Acting Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2019005000 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentin G.,1 Complainant, v. Steve Jurcyzk, Acting Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2019005000 Agency No. NCN-17-ARC-00053 DECISION On July 25, 2019,2 Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 8, 2019, final decision concerning his 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 AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discrimination based on his protected class and in reprisal for prior protected EEO activity. 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 On appeal, Complainant noted that he contacted the Agency for the final decision on June 25, 2019, and learned that the Agency had mailed the final decision on or about May 9, 2019. Complainant asserted that since he did not receive the final decision until June 25, 2019, his appeal should be considered timely. The Agency acknowledged this and did not dispute the timeliness of this appeal. 2019005000 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computer Engineer, GS-15, at the Agency’s Information Technology (IT), Operations Division, IT Directorate (Code I), Ames Research Center (ARC) located in Moffett Field, California. On July 7, 2017, Complainant met with an EEO Counselor. Informal efforts to resolve his concerns were unsuccessful. On July 31, 2017, relevant management officials were made aware of the instant complaint. On September 28, 2017,3 Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (African American) and reprisal for protected EEO activity (instant complaint) when: 1. on May 25, 2017, Complainant’s previously approved international travel and request to attend the Agency’s E-Root workshop was denied and no explanation provided, impacting his role as E-Root representative; 2. he was subjected to ongoing harassment resulting in a hostile work environment, including but not limited to, when: a. in 2015, Complainant's supervisor denied his previously approved international travel request to attend the Agency’s E-Root workshop and did not provide an explanation; b. on June 22, 2017, Complainant was removed as the point of contact from an E-Root presentation to the Acting Agency Administrator and Deputy Administrator; c. on August 8, 2017,4 Complainant's supervisor made last minute changes to his E-Root presentation, causing errors that could produce an unfavorable outcome for him; d. on August 23, 2017, Complainant's supervisor scheduled a meeting while Complainant was on vacation and upon returning to work, there was no mention of the meeting that took place nor of the upcoming meeting; e. on August 30, 2017, Complainant's supervisor denied his travel request to attend the Internet Corporation for Assigned Names and Numbers 60 (ICANN60)5 meeting; 3 The complaint was later amended on March 28, 2018. 4 During the investigation, Complainant updated this date from August 19 to August 8, 2017. 5 ICANN60 is a private non-profit organization responsible for Internet Protocol (IP) address space allocation, protocol parameter assignment, domain name system management, and root 2019005000 3 f. on October 18, 2017, Complainant's supervisor stated that a benefit of not participating in person is that Travel Compensatory Time Earned (TCTE) and Credit Hours Earned (CRE) are saved, making Complainant feel as if he was punished for claiming TCTE and CRE and his preference for remote participation instead of in-person; and, g. on an unreported date(s), Complainant and two other African-American employees and other minorities have experienced a pattern of racial discrimination by Code I leadership. The investigative record reflects the following pertinent matters relating to the subject claims. At the relevant time, Complainant’s first line supervisor was the Chief of IT Operations Division (S1, Asian American, no prior EEO activity) and his second line supervisor was the Deputy of IT Directorate (S2, Asian American, no prior EEO activity). Complainant provided guidance and support to the Root Server System Advisory Committee (RSSAC), with a focus on participation and operation of Agency E-Root servers. He was the only computer engineer assigned to the IT Operations Division who performed these duties. On June 26, 2015, Complainant asserted that his request to attend the Root-Ops meeting, RSSAC Caucus Face-to-Face (F2F), and Internet Engineering Task Force (IETF) 93rd meetings for July 19-24, 2015, in Prague, Czech Republic, was denied by S1 at S2’s instructions. S1 did not recall denying a Prague work trip and noted that, in 2015, he had approved Complainant’s international travel requests for ICANN and Root Server travel for Singapore6 in February 2015, and the RSSAC and Root Server travel for Buenos Aires, Argentina, in June 2015. S2 could not recall a 2015 Prague trip request. S1 and S2 noted that if a trip was denied it would have been based on management operational needs at the time. On February 1, 2017, S1, S2, and the Director7 of IT Directorate for ARC (S3, race and EEO activity unknown) tentatively approved Complainant’s request to attend two international E-Root trips for 2017. On May 12, 2017, Complainant submitted the travel requests to the administrative office. On May 25, 2017, Complainant learned S2 approved of his request to travel to Johannesburg, South Africa, but denied his request for the ICANN meeting in Prague. S1 and S2 stated that the conferences were similar, so management declined to approve both requests. S1 and S2 noted that Complainant was allowed and encouraged to attend the Prague conference virtually. server management functions. ICANN meetings are held three times a year in different regions of the globe to enable attendees from all over to participate. 6 This was mistakenly listed as occurring in Singapore, China. Record indicates the meeting was held in Singapore. 7 This official retired prior to the investigation. S3 was provided with an opportunity to participate in the investigation but did not provide a response. 2019005000 4 S2 testified that the international trips Complainant requested are conferences held by the ICANN and Internet Engineering Task Force (IETF). S2 noted that the RSSAC typically partnered with these private conferences because many of the root operator representatives attended the conferences. S2 stated that she denied Complainant’s request to attend the ICANN conference scheduled for Prague on October 28 to November 3, 2017, due to financial and budgetary allocations, workload priorities and availability of staff. S2 asserted that she properly applied the guidelines for processing travel requests. S2 explained that each request has several considerations to factor such as cost, time spent travelling, and whether in-person attendance is necessary. S2 noted that, while she denied in-person attendance, she encouraged Complainant to attend the ICANN conference in Prague virtually. On June 22, 2017, Complainant asserted the he was removed as the point of contact from an E- Root presentation to the Acting Agency Administrator and Deputy Administrator. S1 testified that Complainant’s characterization was inaccurate, and that he was not removed as a point of contact for E-Root. S2 and S3 are the delegated authorities that manage operational and administrative activities for the IT Directorate, including liaison with the headquarters Office of the Administrator (OA). S1 and S2 were surprised when Complainant sent an email to the Acting Agency Administrator and Deputy Administrator setting up a briefing. On July 3, 2017, S1 directed Complainant to merely delay any headquarters briefing until S3 could attend. Once schedules were arranged, Complainant continued as the presenter for the E-Root presentation for the Acting Agency Administrator and Deputy Administrator. On August 8, 2017, S2 made changes to Complainant’s E-Root presentation that was set for August 9, 2017. Complainant asserted that this made him look incompetent. Complainant asserted that, in the proceeding weeks, S2 and S3 created a hostile work environment by discriminating and retaliating against Complainant by deliberately trying to impugn his reputation and destroy his creditability by taking actions designed to have Complainant’s briefing to Agency upper management fail. Complainant asserted that S2’s changes were sent out as the final presentation without letting him know. S2 stated that she made edits to Complainant’s presentation to fit a 30-minute teleconference and to reduce some overlapping slides. S2 stated that her edits were professional, objective, and were not meant to make Complainant appear in any negative manner. S2 noted that Complainant was made aware of the changes but chose to ignore the edits and proceeded to use his original slides during the August 9, 2017 presentation. On August 23, 2017, S2 scheduled a meeting while Complainant was on vacation and, upon return, there was no mention of the meeting or of any upcoming related meeting. Complainant felt this meeting was held in secret to exclude him. S2 and S3 wanted to talk to the cochairs of the RSSAC to get full transparency of what the IT Directorate staff members were supporting, required to support, and requested to follow and what RSSAC’s ultimate and final objectives were. Management asserted that the meeting was not held to exclude Complainant and, at the time of the setup, was not aware Complainant had scheduled annual leave the same week. S2 stated that Complainant’s involvement was not necessary, that no one was excluding him, and that she wanted to set up a management level staff meeting with the RSSAC co-chairs. 2019005000 5 On or about August 30, 2017, Complainant was denied in-person attendance at the October 28 to November 3, 2017, ICANN60 conference in Abu Dhabi, United Arab Emirates. S2 stated that she denied in-person attendance but approved and encouraged remote participation. She noted in the denial that the ICANN participation was not mandatory and was not a core function to justify the costs and time. S2 further noted that the Agency was in Continuing Resolution8 at the time and only crucial emergency related travel requests that impacted operations were to be approved. On October 18, 2017, Complainant asserted that S1 informed him that a benefit of not participating in person is that Travel Compensatory Time Earned (TCTE) and Credit Hours Earned (CRE) are saved. Complainant asserted that the comment made him feel as if he were wrong for claiming TCTE and CRE in the past. S1 could not recall making the exact comment but asserted that there would have been nothing wrong with such a statement. Lastly, Complainant noted that management had a history of discriminating against African- American employees. Complainant listed two similarly treated employees, the Manager of Cyber Threat Detection Group, Security Office Center (SOC), IT Directorate, ARC (CW1, African- American, has engaged in prior EEO activity) and the Ames Chief Technology Officer (CW2, African American, unknown prior EEO activity). S1 stated that he never supervised or interacted with CW1. S2 also did not supervise CW1. S1 stated that CW2 was the former chief of technology and last in the role in 2015. S1 noted that he was not part of CW2’s supervisory chain. S2 was CW2’s former second line supervisor. S1 and S2 both stated that they were unaware and not involved in any potential discrimination claims that CW2 might have had. CW1 was not involved and heard of the incidents through an unidentified friend but asserted that he was confident that proper procedures were not followed. CW1 stated that he was not aware of the intimate details of the claims but believed that Complainant was likely discriminated against. CW1 alleged that S2, and other management officials, frequently discriminated against African- American employees. For example, CW1 asserted that he witnessed discriminatory actions with respect to his travel requests and noted that other African-American employees were also refused government funding for travel that could enhance their careers. CW1 asserted that the only time he had work-related travel approved was when he had briefly had an African-American supervisor. While CW1 was interviewed he did not elaborate on who else was barred from work-related travel, and/or provide names of other similarly treated individuals that he mentioned. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). 8 Continuing resolutions are temporary “stopgaps” while appropriations for the full year are pending. 2019005000 6 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency’s lack of response to his harassment claims has enabled an ongoing culture of racial discrimination, retaliation, and harassment, particularly by S2. Complainant asserts that S2 has a history of mistreating, abusing, and excluding African- American employees. Complainant asserts that it has created a noticeable pattern of disenfranchisement amongst African-American employees to the point where several African- American employees have left the Agency. In support of his claims, Complainant highlights and reiterates the claims in his complaint. For example, Complainant asserts that S2’s denials of his planned work-related trips were clear retaliatory actions. He notes that S2 had previously denied his travel request to attend the ICANN and Root-Ops meeting due to budgetary constraints. Complainant states that, while this might sound like a legitimate reason, it was false. He notes that he spoke with the individual in charge of financial and budgetary functions who assured him that the funds had already been set aside for Complainant’s travel. Additionally, he states that the Federal Bureau of Investigation (FBI) had offered to sponsor his in-person ICANNN attendance, and yet S2 denied the sponsorship opportunity. Complainant asserts that it was clear retaliation by S2. Complainant notes that S2 also asserted that that she denied the travel due to priorities and staff availability. He asserts that this reason is also pretext. He asserts that there were never any concerns made regarding his work priorities or his need to help staff the Agency. He notes that he did not serve as a back-up to anyone in the directorate and could have easily made the trips. Complainant also refutes the Agency’s determination that he was not retaliated against based on his protected EEO activity. Complainant states that the Agency’s decision framed his retaliation claim as retaliation for prior protected activity, when he was in fact alleging retaliation for filing the instant EEO activity. Complainant asserts that S2 and other management officials were well aware of his complaint as they were informed early on in the process, specifically on July 31, 2017. Complainant asserts that, based on this awareness, S2 engaged in a series of retaliatory actions as listed in his complaint. Complainant also details an alleged pattern of racial discrimination by S2 against other African- American employees. For example, he asserts that S2 was involved in the demotion of CW2. Complainant notes that CW2 is still at the Agency, but under a different organization and chain of command. Complainant also asserts that, even when S2 hires African-American employees, it is simply a ruse. For example, Complainant states that, while S2 was instrumental in hiring the Security Operations Center Deputy9 (CW3, African American, unknown EEO activity), she then excluded CW3 from hiring his own staff. 9 CW3 was not interviewed or asked to provide an affidavit. 2019005000 7 Ultimately, Complainant asserts that he has been subject to an ongoing hostile work environment and discrimination due to his race and EEO activity. Complainant requests that the Agency’s decision be overturned, a finding be made in his favor, and S2 be terminated. On appeal, the Agency provides a detailed response to Complainant’s appellate brief. For example, Complainant had submitted arguments that S2’s reasons for denying his trip was pretextual. Complainant explained that funds had been set aside for him, as confirmed by the Agency’s Budget Analyst.10 The Agency asserts that funding was just one factor in S2’s decision. The existence of the available, and even earmarked, funding did not mean that Complainant was entitled to the trip. Additionally, the Agency notes that S2 approved funding for a similar international trip that year for Complainant to South Africa. The remainder of the Agency’s response brief similarly responds to each of Complainant’s appellate concerns. Overall, the Agency concludes that the final decision properly determined that Complainant failed to prove, upon the preponderance of the evidence, that the Agency erred in issuing the decision dismissing his claim of discrimination. The Agency requests that the final decision be affirmed. 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”). ANALYSIS AND FINDINGS Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 10 We note that the Budget Analyst was not interviewed or asked to provide an affidavit. 2019005000 8 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For his claim of reprisal, Complainant must show that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Several of Complainant’s claims concerns the denial of work-related travel requests, namely claims 1, 2(a), 2(e), and 2(f). In each claim, management explained the factors that were considered when determining whether to approve a travel request. For example, S2 stated that she based her decision to deny Complainant’s international travel request to attend the October 28 to November 3, 2017, ICANN in Prague based on financial and budgetary allocations, as well as workload priorities and availability of staff. S2 explained that the E-Root program was “not part of the core IT services that [the Agency] provided to the Center/agency to meet its mission requirements.” We note that while S2 denied the in-person trip she encouraged virtual participation. Additionally, S2 had approved a similar 2017 international trip to Johannesburg, South Africa, despite the Agency’s status in Continuing Resolution. S2 testified that she did not think two in-person trips for similar events were necessary. Lastly, while S2 placed restrictions on international travel, she noted to Complainant that there would be little to no restrictions on domestic work-related travel. Complainant vehemently denied S2’s assertion that the in-person trip for the 2017 Prague conference was not vital. He argued that the E-Root program was vital to the Agency mission and that virtual attendance would not suffice due to time zone differences and potential technical difficulties that almost always arise. Additionally, he argued that not only was money already earmarked for his travel, but that the FBI had even offered to sponsor his in-person attendance if the Agency did not have the funding. S2 responded to these assertions in her testimony. For example, she asserted that funding was just one component, and that the FBI sponsorship was considered but denied. Complainant argued that management’s response was inadequate and was a ruse to cover the true discriminatory nature of the denial. 2019005000 9 Complainant provided several robust arguments asserting that management’s reasons were all pretext for discrimination and retaliation. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981)). Based on the record, we do not find that Complainant has met his burden demonstrating that the provided legitimate, nondiscriminatory reasons were pretext for discrimination or retaliation. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet his burden of persuasion. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) (citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013)); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Hostile Work Environment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race and EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). In his harassment claim, in addition to the incidents discussed above, Complainant generally alleged that management subjected him to a hostile work environment through a variety of incidents. For example, Complainant asserted management removed him as a point person (claim 2(b)); changed his presentations (claim 2(c)); scheduled meetings without him (claim 2(d)); made him feel as if he should not request TCTE or CRE when he was entitled to such benefits (claim 2(f)); and generally created a hostile work environment for African-American employees (claim 2(g)). 2019005000 10 Based on a review of the record, we find that these claims, either taken separately or as a whole, do not rise to a level that is so severe or pervasive that a reasonable person would consider them to be hostile. In claim 2(b), Complainant was not removed as the point of contact but asked to move the meeting to a time when S3 was available to participate as well. Additionally, regarding Complainant’s allegations that management discriminated against all African-American employees, Complainant cited three individuals as examples, CW1, CW2, and CW3. CW2 was not interviewed but aside from S2 also being a former second-line supervisor there were no other connections, or events, that demonstrated CW2 was also discriminated against. Regarding CW3, Complainant acknowledged that S2 was instrumental in hiring him but argued that it was a mere ruse. Complainant’s only argument that the hire was for optics only was an assertion that S2 prevented CW3 from hiring his own staff. Regarding CW1, he provided an affidavit on Complainant’s behalf and argued that S2 had also discriminated against him based on similar travel denials. However, CW1 also acknowledged that he was unfamiliar with any of the claims at issue and did not provide details of S2’s denials. As such, we find CW1’s affidavit to be merely speculative regarding Complainant’s claims and we do not find testimony to be an indication of widespread discrimination. Accordingly, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 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). Furthermore, 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). As already concluded above, there is no evidence to support a finding that Complainant’s race or EEO activity played any role in the Agency’s actions. Moreover, the responsible management officials provided legitimate, non-discriminatory explanations for its actions. In sum, Complainant failed to prove that his protected class and EEO activity played any role in the incidents he proffered as evidence of his harassment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not discriminate or retaliate against Complainant 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. 2019005000 11 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). 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. 2019005000 12 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, Director Office of Federal Operations May 24, 2021 Date