[Redacted], Wilbert W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 9, 2021Appeal No. 2020004892 (E.E.O.C. Feb. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbert W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020004892 Hearing No. 560201900190X Agency No. 4E640009018 DECISION On August 13, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 30, 2019 Final Agency Decision (“FAD”) on an 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., and Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier, Q-01, at the Agency’s Parkville Station in Kansas City, Missouri. On September 11, 2018, Complainant filed an EEO complaint alleging that he was subjected to discrimination by the Agency on the bases of disability and reprisal for engaging in 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. 2020004892 2 prior protected EEO activity,2 when: 1. On May 3, 2018 and ongoing, Management failed to accommodate his medical restrictions for his on-the-job injury due to a vehicle safety issue, 2. On or around June 14, 2018, Management denied his request for a change in craft, and, 3. Since September 28, 2018, the District Reasonable Accommodation Committee (“DRAC”) has failed to notify him of the outcome of his request for accommodation.3 The Agency accepted the complaint for investigation which revealed the following relevant facts. Prior to the relevant time frame for the instant complaint, Complainant was injured on the job, causing him to take substantial time off work, and resulting in ongoing spinal pain.4 On January 9, 2018, the Agency sent Complainant a Medical Certification Request. The Request explained that if Complainant provided medical documentation that “identified limitations to some or all of [his] ability to perform the job [of City Carrier],” the Agency would engage in an interactive evaluation with Complainant to determine whether he could perform the essential functions of his job with a reasonable accommodation. It does not appear the Complainant responded, as he had no medical restrictions when he returned to work in April 2018. On or about May 1, 2018, Complainant agreed to drive a postal van (Vehicle #7220698) to deliver his route when the Station Manager (“SM”) informed him that the route’s assigned postal truck was out for repairs. 2 Complainant raised multiple prior EEO complaints and grievances with the Agency, and told his manager (“SM”) about them “to his face;” on appeal, he contends that he also filed various appeals with this Commission and asks that they be reviewed together. At the date of this decision, our records reflect that Complainant filed two additional appeals, both have already been closed, and they concern matters that occurred outside the relevant time frame for this complaint: EEOC Appeal No. 2020004802 (Agency Case No. 4E640002320) (Oct. 7, 2020), and, EEOC Appeal No. 2020003700 (Agency Case No. 4E640002620) (Feb. 25, 2020). 3 A fourth claim was resolved via settlement agreement reached through the grievance process. 4 Complainant filed a complaint with the Department of Labor, Occupational Safety and Health Administration (“OSHA”), about the conditions giving rise to this injury, and after his return to work in April 2018, he filed an OSHA Whistleblower Complaint (OSHA Case No. 7412018069). Complainant repeatedly discusses his OSHA activity as the basis for his retaliation claim in this complaint. However we will not address these arguments further because actions filed with OSHA are outside EEOC jurisdiction, and, it is undisputed that these OSHA actions involved different management officials than those named in this complaint. 2020004892 3 On May 3, 2018, Complainant submitted a PS Form 4595 Vehicle Repair Tag for Vehicle #7220698 to SM, which is the proper procedure for mail Carriers to report damage to a vehicle. On the form, Complainant listed multiple repairs that he explained were necessary for Vehicle #7220698 to be safe to drive. For instance, he was experiencing pain while driving because the seat of the van was worn and uneven, misaligning Complainant’s hips. No action was taken, so Complainant continued to drive Vehicle #7220698, and claimed it resulted in ever-increasing pain in his ribs, hips, spine and neck. On May 9, 2018, Complainant was driving Vehicle #7220698 on his regular route, when he was overcome with pain, and he temporarily lost feeling in his legs.5 Complainant submitted another PS Form 4595 for Vehicle #7220698 to SM. This time he stated, “the seat is damaged, it is causing me pain in the hips pain in the spine, pain in my ribs making it difficult to breathe, [and] pain in the neck.” Complainant followed up or about May 10, 2018, by submitting a Form 1767 Report of Unsafe Condition (“Safety Hazard Report”) stating, “the seat is broken down on the driver’s side making the driver sit out of level. Consequentially this made my spine bend to sit up straight.” On May 11, 2018, Complainant learned that SM never signed or forwarded these forms, and had not done so for the May 3, 2018 PS Form 4595 either. On May 13, 2018, Complainant states that he returned to work, but was not offered a safe vehicle to deliver his route, so he went on leave to prevent further injury. Complainant provided SM with a completed Injury Report, and a Traumatic Injury/Claim of Continuation of Pay form to submit to the Office of Workers Compensation Programs (“OWCP”). SM submitted the claims for processing, and the Agency challenged his Traumatic Injury/Claim of Continuation of Pay. On May 15, 2018, Complainant underwent an MRI and spinal exam by an OWCP Physician. The MRI Report revealed that, among other things, Complainant’s Cervical (neck) vertebrae, contained a medium-sized disc-osteophyte (bone spur) impinging the nerve roots on Complainant’s C7 vertebra. Complainant also had a medium-size disc protrusion causing “mild” impingement of Complainant’s C6 nerve root, and his C4 nerve root was impinged due to the moderate hypertrophy (enlargement) of part of a right facet joint in his neck. The MRI Report also noted “severe” foraminal stenosis within Complainant’s cervical vertebrae, which is the narrowing of openings between spinal bones that nerves pass through, and can cause pinched nerves. Complainant’s Lumbar (lower back) vertebrae revealed a small circumferential disc bulge, superimposed on two millimeter degenerative anterolisthesis (misaligned vertebrae) in L4-5, additional foraminal stenosis, and mild bulging discs in L2-3,L3-4. Complainant was also diagnosed with mild Scheuermann’s Disease (curvature of the spine), based on a “slight wedging of [his] T4 through T8 vertebrae,” in the Thoracic (middle/upper back) spinal area. 5 Although the Repair Tag and Hazard Report indicate May 9, 2018, as the date of injury, it is May 10, 2018 in most other documentation throughout the record. 2020004892 4 On May 16, 2018, Complainant submitted a doctor’s note from the OWCP Physician, which, based on the MRI deemed him temporarily fully disabled from May 15, 2018 through June 13, 2018. 6 The note further instructed that, upon returning to work, Complainant would require the following restrictions: “no sideways bending of hips/spine while seated/driving.” With the note, Complainant included the appropriate documents to request a reasonable accommodation based on his medical restrictions. SM forwarded all of the paperwork to an HR Specialist that day. In addition, Complainant recounts contacting DRAC and requesting “a level suspension truck seat” on or about June 7, 2018. Modified Assignment #1 On June 13, 2018, Complainant accepted a Modified Assignment offered by the Agency, even though it was substantively no different than his usual job requirements. On June 14, 2018, Complainant notified SM and Human Resources (“HR”) in writing that he was requesting a change in craft “within the post office.” Significantly, Complainant specified, “being as I am offered a modified assignment PS Form 2499, this may be the proper time to again request a chance of craft.” Complainant testified that at the time, he was aware of a Window Clerk vacancy at another post office and believed the position would be compatible with his restrictions. SM testified that there were no open positions within another craft at Parkville Station, but he forwarded Complainant’s request to the Postmaster (“PM”). On June 19, 2018, Complainant submitted an OWCP Duty Status Report to SM. The Report provided clinical findings of “low back pain, knee pain, leg weakness” and advised that Complainant could return to work with the following new restrictions: lifting no more than 10 pounds, no bending/stooping or twisting, no walking or climbing for more than 2 hours, and a 10 minute break per hour. On June 21, 2018, PM denied Complainant’s request for a change in craft. On June 25, 2018, Complainant notified SM in writing: “I refuse to work today or any time in the future as a letter carrier or any time in the future until my work restrictions allow me to. My current work restrictions from [physician] preclude me from performing the duties of a letter carrier” On June 28, 2018 Complainant followed up by requesting reassignment to another craft “in light of the fact that the post office will not recognize the [June 19, 2018] work restrictions.” Complainant also sent another letter to DRAC on or about July 15, 2018. Modified Assignment #2 On or about August 1, 2018, the Agency offered Complainant a second Modified Assignment within Complainant’s current craft, but also consistent with Complainant’s medical restrictions. Specifically, he was assigned to case assigned route and deliver CBUs on his own assignment for one and half hours and carry express for one hour. 6 On June 11, 2018, based on the May 15, 2018 MRI Report, OWCP re-opened Complainant’s, Traumatic Injury Claim, which it initially closed on May 24, 2018, after the Agency challenged it. 2020004892 5 The physical requirements for the modified assignment was standing and driving for four hours, walking for two hours and lifting up to ten pounds for one hour. However, Complainant alleges that the Agency only honored this assignment for four days before he was assigned work outside his medical restrictions. On August 8, 2018, Complainant received a letter (dated July 23, 2018) from the Manager, Labor Relations and (acting) DRAC Chair. Multiple attempts were made to schedule a meeting, and ultimately one was held on September 28, 2018. Meanwhile, the record includes a September 25, 2018 report from a Chiropractic Physician, who determined that the source of Complainant’s pain was that his right leg was one and a half inches shorter than his left leg. The Chiropractic Physician recommended that Complainant be placed on light duty where his hip will not be rotated and remain level. Complainant completed another form requesting light duty with the restriction: “no mispositioning of the hips,” but the form lacks a management official’s signature. DRAC Meeting On September 28, 2018, Complainant, accompanied by his Union Representative, and DRAC held a teleconference to discuss Complainant’s request for a reasonable accommodation. The accommodation Complainant request was a position that “would not break his back.” The DRAC Chair testified that Complainant may have submitted the June 7, 2018 accommodation request, but it was not in his file. The earliest submission appears to have been the June 19, 2018 medical restrictions, and accompanying medical documents. The Committee determined that Complainant could not perform the essential functions of a City Carrier, and asked Complainant to return for another teleconference on November 17, 2018. On November 21, 2018, the Committee issued a Letter of Decision, after Complainant failed to participate in the November 17, 2018 call. We note that the record is unclear whether Complainant received the invitation for the second call. Regardless, DRAC convened and reviewed fully funded vacant positions in other crafts to see if any could accommodate his medical restrictions. When none could be found, the DRAC Chair sent Complainant a letter denying his accommodation request, explaining that no accommodation was available that would meet the restrictions issued by his medical care provider. Complainant did not receive the letter until on or about January 4, 2019. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant initially requested a hearing, but later withdrew his request. The Agency’s FAD, issued pursuant to 29 C.F.R. § 1614.110(b), concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 2020004892 6 ANALYSIS AND FINDINGS 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, (“EEO MD- 110”) 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”). Withdrawal of Hearing Request The record contains a November 13, 2019 email exchange between Complainant and the AJ. The AJ, referencing a phone conversation she had with Complainant the day before, provided him with the instructions on how to withdraw his hearing request so he could receive a FAD instead. Complainant responded, “I withdraw my hearing request and request a Final Agency Decision,” followed by his agency case number and hearing number, per the AJ’s instructions. On appeal, Complainant contends that he never withdrew his hearing request, and asks that his complaint be reinstated for a hearing before an AJ. He asserts that without his knowledge or consent, an imposter with access to his email account and phone number caused his hearing request to be withdrawn. However, all email communications to and from Complainant with respect to the withdrawal are from Complainant’s email address of record, provided in a March 1, 2019 Designation of Representative form that he signed and submitted to the AJ. By signing the Designation of Representative form, Complainant certified that he was the point of contact for all matters pertaining to his complaint, and that the contact information he provided on that form (his contact information “of record”) was correct (i.e. would reach Complainant). Therefore, it is Commission policy to presume that communications originating from a complainant’s contact of record are authorized or submitted by that complainant. Regardless of who sent the email formally withdrawing Complainant’s complaint, since it came from Complainant’s email address of record, and there is no evidence to show otherwise, the Complainant is presumed to be the originator of the hearing withdraw request. Complainant’s hearing request will not be reinstated. However, we assure Complainant that in reaching this Decision, we thoroughly reviewed the record, including the emails and their attachments submitted directly to the AJ. 2020004892 7 Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 the personnel action at issue, 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); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim 2, in context, and based on Complainant’s statements throughout the record, alleges denial of a reasonable accommodation. Complainant also raises a disparate treatment argument, contending that when he submitted his June 14, 2018 request to change crafts, which the Agency denied, there was a vacancy for a Window Clerk position at another office. Complainant argues that the Agency’s actions were discriminatory and retaliatory because if one of his colleagues, outside his protected categories, made the same request, the Agency would have granted a reassignment to the Window Clerk position. There is no evidence in the record to support Complainant’s speculative assertions, and the Agency was not obligated to consider Complainant’s request at that time. Once Complainant updated his medical restrictions on June 19, 2018, the Agency’s legitimate nondiscriminatory explanation for denying Complainant’s requests to change crafts was that no positions were available that would meet his medical restrictions. Although this is addressed in the next section, we note that the Agency supported its legitimate nondiscriminatory reason with evidence, including testimony from the DRAC Chair, a list of available fully-funded positions at the time and their corresponding job descriptions, with Complainant’s medical restrictions for reference. As for Claim 3, the DRAC Chair testified that the DRAC Decision Letter was addressed to Complainant’s address of record, and that he dropped it off at the Mail Room on or about November 21, 2018, when the Committee issued its decision. 2020004892 8 Complainant notified the Agency’s EEO Office on December 9, 2018 that he had yet to receive a decision from DRAC when he initiated the instant complaint. The DRAC Chair testified that he did not learn Complainant had not received the DRAC Decision Letter until early January, when a Union Representative notified him. The DRAC Decision Letter was re-sent on January 4, 2019, and Complainant does not dispute receiving the Letter when it was mailed the second time. While we are puzzled by the EEO Office’s apparent lack of follow up when on December 9, 2018, Complainant informed it that he had not received a DRAC Decision Letter for a meeting held on September 28, 2018, there is no evidence that Complainant’s prior protected activity and disability were factors in his delayed receipt. Reasonable Accommodation Agencies must reasonably accommodate the known limitations of a qualified individual with a disability unless it can show that the accommodation would cause an undue hardship. 29 C.F.R. § 1630.9(a). An individual with a disability is one who: has, has a record of, or is regarded as having a physical or mental impairment that substantially limits one or more of that person's major life activities. 29 C.F.R. § 1630.2(g). A qualified individual with a disability is an individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Essential functions are the fundamental job duties of the employment position the individual with a disability holds or desires. 29 C.F.R. § 1630.2(n). A function may be essential, for example, because the reason the position exists is to perform that function or there are a limited number of employees available among whom the performance of that job function can be distributed. Id. at § 1630.2(n)(2). Evidence of whether a particular function is essential includes the employer's judgment as to which functions are essential; written job descriptions; and the amount of time spent on performing that function. Id. at § I630.2(n)(3). We have long held that reassignment (i.e. a change in craft), is an “accommodation of last resort” that should only be utilized after a determination has been made that there are no other accommodations that would enable Complainant to perform the essential function of his current position, without imposing an undue hardship upon the Agency. See Zachary K. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). It is undisputed that Complainant is an “individual with a disability,” but the record reflects that from June 19, 2018, when he was issued new OWCP medical restrictions, through the remainder of the relevant time frame, Complainant was not a “qualified” individual with a disability. According to the City Carrier position description, the essential functions of Complainant’s job were to “deliver and collect mail on foot or by vehicle under varying road and weather conditions in a prescribed area.” This entailed carrying mail weighing up to 35 pounds and loading or unloading a container of mail weighing up to 70 pounds. 2020004892 9 Complainant’s June 19, 2018, medical restrictions consisted of lifting no more than 10 pounds, no bending/ stooping or twisting, no walking or climbing for more than 2 hours, and a 10 minute break per hour. Complainant acknowledges in his June 25, 2018 letter to SM and HR, that the June 19, 2018 medical restrictions “precluded [him] from performing the duties of a letter carrier.” Complainant identifies June 21, 2018 as the date he was first denied a reasonable accommodation because that was when the Agency denied his request for a change in craft.7 In context, Complainant’s June 14, 2018 and June 28, 2018 requests to change crafts were made in response to what he believed were ineffective accommodation. Complainant asserts that the Agency failed in its obligation to engage the interactive process when it denied his request on June 21, 2018, without initiating further discussion to determine an alternate effective reasonable accommodation. Likewise, he asserts the Agency’s lack of response to his June 25, 2018 and June 28, 2018 letters notifying SM and HR that he has not been provided work within his medical restrictions constituted a failure to engage in the interactive process. The Agency argues that it complied with its obligations under the Rehabilitation Act by providing Complainant with a reasonable accommodation in the form of the June 13, 2018 and August 1, 2018 Modified Assignment Offers, which Complainant accepted. When these offers were made, the Agency was aware of the nature of Complainant’s disability from his accounts of his prior on the job injury, the May 3, 2018 and May 9, 2018 Repair Tags, the Hazard Report, and his detailed OWCP injury claims, which were all submitted directly to SM. Yet, the record supports Complainant’s assertion that the June 13, 2018 Modified Assignment Offer, which listed “case and carry” as his duties, and 8 hours as the average time spent doing them, had no impact on his existing duties. As for the August 1, 2018 Modified Assignment Offer, which Complainant states was an effective reasonable accommodation, the Agency allegedly ignored his restrictions after four days, rendering it ineffective. While the Agency was not necessarily obligated to provide Complainant with his preferred accommodation of a change in crafts (even if Complainant could show that a position was available), it was obligated to engage in an interactive process upon learning that the accommodation provided was not effective or no longer met his medical restrictions. As Complainant stated in his affidavit, “I was hurt, they knew I was hurt, and would not give me a job more suited to my injuries.” 7 Complainant’s May 3, 2018 and May 9, 2018 PS Form 4595 Vehicle Repair Tags for Vehicle #7220698 (Claim 1) could also be construed as requests for a reasonable accommodation that Management failed to address. Management was aware that Complainant experienced significant work-related injuries, keeping him off work for months, and that he only recently returned to work. Complainant submitted the tags to S1, and both expressly identified Vehicle #7220698 as the source of his pain while delivering his route. However, Complainant clarifies multiple times in the record that he does not feel that he was denied a reasonable accommodation until the Agency denied his request to change crafts on June 21, 2018. 2020004892 10 However, the sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation. Liability for a failure to engage occurs when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). See also Georgeann R. v. Dep’t of the Army, EEOC Appeal No. 0320170037 (July 25, 2017) (affirming dismissal of alleged denial of reasonable accommodation where it was undisputed that the agency failed to engage in the interactive process, because the complainant could not show that the agency denied her a reasonable accommodation). In other words, failure to engage in the interactive process cannot be a separate cause of action because “the interactive process is not an end in itself,” but rather a means to obtain a reasonable accommodation. Broussard. Although the Agency initially failed to initiate the interactive process with Complainant, it successfully engaged in the interactive process on September 28, 2018, when Complainant met with DRAC. They discussed Complainant’s formal request for a reasonable accommodation, which was “a job that won’t break [his] back.” Afterward, DRAC determined that Complainant could no longer perform the essential functions of a city carrier position. Complainant withdrew from a follow-up meeting scheduled in November 2018, so on November 21, 2018, DRAC reviewed open positions in different crafts and definitively found that there was no fully funded position available that could accommodate Complainant’s medical restrictions. The record contains a list of available vacant positions at that time, and all fell outside of Complainant’s restrictions. Complainant has not offered any contradictory evidence. Thus, Complainant was not denied an accommodation by the Agency because, after engaging in the interactive process, the Agency determined that there was no available accommodation that would meet his restrictions. Because no accommodation met Complainant’s medical restrictions, any earlier failure by the Agency to initiate the interactive process did not result in the Agency's failure to provide a reasonable accommodation. Likewise, to the extent Complainant is arguing that the delayed delivery of the DRAC Decision Notice had the effect of denying him a reasonable accommodation, as no accommodation existed for Complainant, the delay in notice is not an actionable claim in itself. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency’s final decision that Complainant was unable to establish discrimination as alleged is AFFIRMED. 2020004892 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). 2020004892 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 February 9, 2021 Date Copy with citationCopy as parenthetical citation