Summer F.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jul 30, 2019

0120171529 (E.E.O.C. Jul. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Summer F.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120171529
Hearing No. 410-2015-00170X
Agency No. HS-ICE-01985-2013

DECISION

Complainant timely 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 final action 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. For the following reasons, the Commission VACATES the Agency’s final action.

ISSUE PRESENTED

The issue presented in this case is whether the Administrative Judge erred in granting the Agency’s
motion for summary judgment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer,
GS-12, at the Agency’s Enforcement and Removal Operations (ERO) office in Atlanta, Georgia.
Report of Investigation (ROI), at 1.

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.
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Complainant’s husband (Asian, Japanese/European, age 55) also worked for the Agency as a
Supervisory Detention and Deportation Officer in Atlanta, Georgia. Id. at 474, 476.

In June 2012, Complainant’s first-level supervisor (S1) offered Complainant an opportunity to
escort an immigrant back to the immigrant’s home country of Jamaica. Id. at 49. In choosing
Complainant, S1 apparently passed over 11 to 15 officers on the rotation. Id. The Supervisory
Immigration Enforcement Agent (SIEA) (Hispanic, Puerto Rican, age 37) was next in line on the
rotation but was not chosen for the escort to Jamaica. Complainant stated that the Jamaican escort
is considered a bad escort as you do not earn per diem, overtime, or get to stay overnight. Id.
According to S1, he was responsible for a spreadsheet called the “escort travel wheel,” used for
assigning escort duty to employees. He stated that Complainant notified him that he missed the
SIEA on the rotation, so he phoned the SIEA who declined the job. Id. at 448-49. S1 stated that he
then again offered Complainant the Jamaica escort duty and she accepted.

On June 25, 2012, the SIEA reportedly became upset and yelled and cursed at Complainant’s
husband after he realized his name was put at the bottom of the escort wheel after he declined the
Jamaica escort. Id. at 477-78. The SIEA then allegedly directed several profanities at
Complainant’s husband, threatening to “mess up” his and his wife’s (Complainant’s) careers. Id.
Complainant’s husband then apparently filed a formal EEO complaint over the incident, and
thereafter sent several emails to management expressing concern over his and his wife’s
(Complainant’s) safety. On August 17, 2012, Complainant’s husband sent emails to management
notifying them that the SIEA had subjected him to a hostile work environment and expressed his
fear that the SIEA could become violent toward either him or his wife (Complainant). Id. at 104-
109. On August 17, 2012, Complainant’s husband specifically wrote, in pertinent part:

I believe the [SIEA] is out of control, has personal issues with me, he himself stated
that he believes I stand in the way of his career and advancement, that this meeting
was his “last resort” and that he did not respect me, did not trust me, like me, want
to work with me and would not stand by and let me ruin his career. [The SIEA] got
way too personal by bringing in my wife, my past duty locations. What state of
mind is he in when he would reach out to my previous duty station and inquire
about me? There are too many “RED” or warning flags in this situation. He brags
continuously about his weapons expertise, he is a firearms instructor and he has
many years' experience with weapons. Let me make it clear that I have a genuine
concern for my safety; I feel the [SIEA] made many personal threats against me
and he expressed how he feels I am ruining his career. . . .

Id. at 104-105.

The Agency thereafter conducted an investigation into Complainant’s husband’s allegations
concerning the SIEA and issued a memorandum on October 31, 2012. Id. at 146-152. Therein, the
Agency found that Complainant’s husband’s allegations that the SIEA had subjected him to a
hostile work environment were supported by the evidence. Id. at 150.

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Nevertheless, on December 18, 2012, Complainant and her husband attended a firearm instruction
training in Cartersville, Georgia at which the SIEA was designated as one of two instructors for
the training. Id. at 56-57. Complainant averred that she was not aware that the SIEA was assigned
to be one of the firearm instructors at the time she signed-up for the training. Id. Eight other officers
also attended the training with Complainant and her husband. Complainant averred that during the
training, while shooters were gathered in a semi-circle, the SIEA started pointing his weapon to
the middle of her forehead. Id. Complainant stated that she felt threatened, so she took three steps
to the right, but the SIEA kept following her with his weapon. Id. She and her husband attested
that the SIEA then pulled the trigger of his weapon while it was pointing directly toward her. Id.
According to Complainant and her husband, the SIEA then holstered his weapon. Id. Complainant
and her husband attested, however, that the SIEA then took out his weapon again, inserted another
magazine then pointed the weapon at her husband and pulled the trigger. Id. Complainant and her
husband attested that until the SIEA pulled the trigger, they were unware that his weapon was not
loaded. Id.

On December 20, 2012, a Supervisory Detention and Deportation Officer (SDDO), who attended
the firearm training with Complainant and her husband, provided a memorandum for management.
Id. at 535. Therein, the SDDO wrote, among other things:

At one point during the demonstration, [the SIEA] pointed his firearm in the
direction of the officers/students. More specifically, the firearm was pointed at the
officers/students to my right, which would be at and around [the SIEA’s] center.
When [the SIEA] raised the firearm at the officers/students, my awareness was
raised as I had never seen an instructor point a firearm at another person in my near
fourteen (14) year law enforcement career. At the time of the occurrence and in
retrospect, I did not believe that the firearm was loaded. However, I believe that
pointing the weapon at the officers/students was unnecessary, unsafe, showed a
clear lapse in judgment, and lacked instructional purpose.

Id.

Also, on December 20, 2012, a former firearm instructor emailed management, writing:

This is because [the SIEA] pointed his duty weapon at [Complainant and her
husband] at the range on 12/18/12, during a demonstration of reloading and
immediate action skills. This occurred not once, but twice and almost a third time
before the other [instructor] stepped in and pushed the service weapon away and
handed [the SIEA] a 'Blue Gun'. What an idiot . . .

Id. at 170.

Nevertheless, the Agency issued a memorandum on January 10, 2013, finding nothing to
substantiate Complainant’s and her husband’s allegations regarding the firearm training. Id. at 578.
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The Agency then made the decision to assign the SIEA to the same building where Complainant
worked. Id. at 63, 502-503. However, the SIEA was assigned to the fourth floor and Complainant
was assigned to the third floor. Id. Complainant nevertheless believed that the SIEA was not
restricted from entering the third floor where she worked. Id. at 63-64.

On March 24, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (Asian), national origin (Chinese and Indonesian), sex (female),
color (yellow), age, and in reprisal for prior protected EEO activity (her husband’s EEO activity)
when:

1. S1 failed to follow standard operating procedure (SOP) when he did not follow the
travel wheel rotation and she improperly received an escort request for her to go to
Jamaica out of rotation;

2. S1 removed her work cell phone from her desk on numerous occasions without cause;

3. S1 ordered her to inform him on a daily basis when she was to work Administratively
Uncontrollable Overtime (AUO), which is not a common practice;

4. The SIEA yelled, cursed at her and her husband, called her out by her name, and
threatened both her and her husband not to mess up his career;

5. Management treated her unfavorably by treating her Jamaican escort as an international
escort instead of a domestic escort;

6. The SIEA pointed his service weapon at her and her husband and pulled the trigger;

7. Her building access was restricted from entering the floor on which the SIEA, who
allegedly harassed her, worked, but the SIEA was not restricted from entering the floor
on which she worked; and

8. While she was taking pictures of the final four scoreboard at the CNN building during
her lunch, management spoke to her in an aggressive and loud manner, bringing public
attention to her by stating, “Why are you secretly taking pictures of me on Government
time.” “Don't worry, I will talk to your AFOD and deal with you in the office.”

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned
to the case granted the Agency’s December 1, 2015, motion for a decision without a hearing and
issued a decision without a hearing on September 9, 2016, in the Agency’s favor. When the
Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s
decision finding that Complainant failed to prove that the Agency subjected her to discrimination
as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
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The AJ specifically noted that Complainant alleged that she was subjected to retaliation based on
her husband’s protected EEO activity, which occurred in June 2012. But the cell phone, AUO, and
Jamaica escort allegations occurred prior to June 2012. The AJ also found no evidence that any
employees involved in these claims had any knowledge of her husband’s prior EEO activity. The
AJ further noted, with respect to claims 1 and 5, that Officers are not required to take a particular
escort, and therefore Complainant could have simply rejected the offer. The AJ found no evidence
that the Jamaican escort offer to Complainant was motivated by discriminatory or retaliatory
animus. In addressing claim 2, the AJ noted that S1 stated that he took Complainant’s cell phone
from her desk to remind Complainant that she should keep her cell phone with her so that she
could be reached when needed. The AJ found no evidence that S1’s taking of Complainant’s cell
phone was based on Complainant’s protected classes. The AJ further observed, regarding claim 3,
that the record did not reflect that S1 had actually ordered Complainant to provide him with daily
notification of AUO, as Complainant asserted. In addressing claim 4, the AJ noted that
Complainant admitted that she was not present during the incident, and even if the matter occurred
as alleged, there was no evidence that Complainant’s protected classes played any role in the event.
With respect to claim 5 (the gun range incident), the AJ found that Complainant did not establish
that the event transpired as she alleged nor that her protected classes played a role in the SIEA’s
actions. The AJ additionally found no evidence of discriminatory or retaliatory animus with
respect to claims 7 and 8.

CONTENTIONS ON APPEAL

Complainant’s Brief

On appeal, Complainant maintains, inter alia, that the SIEA pointed his firearm at her and her
husband and pulled the trigger during the firearm training in Georgia on December 18, 2012.
Complainant cites to the statement of another employee at the training who stated that she
witnessed the SIEA point his weapon in Complainant’s direction and pull the trigger twice.
Complainant also cites to a December 20, 2012, statement from another employee who stated that
the SIEA almost pointed his firearm at her for a third time, but his gun was pushed away.
Complainant states that she was taught at the academy to treat all weapons as loaded and to never
point or aim a gun at someone unless your intent is to kill. Complainant asserts that after the
December 18, 2012, incident the Agency changed its policy and directed that live-fire weapons
would not be utilized on ranges to demonstrate training exercises. Complainant additionally
maintains that that SIEA would attempt to scare her with the improper display of his weapon, talk
outside her office about how many weapons he owns, and how he would react in a workplace
shooting, among other things.

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Complainant contends that the Agency has not adequately addressed the SIEA’s harassment of her
and believes that the Agency wants the December 18, 2012, incident quashed.2

Agency’s Response

In response, the Agency argues, in pertinent part, that several witnesses did not corroborate
Complainant or her husband’s account of the December 18, 2012, firearm training incident. The
Agency maintains that the SIEA was simply providing instruction on firearms techniques and the
matter was closed without any disciplinary action after an investigation cleared the SIEA. The
Agency also states that Complainant and her husband took their allegations to state court where a
criminal warrant was dismissed for a lack of probable cause in March 2013. The Agency
summarily maintains that Complainant did not establish that the December 18, 2012, incident
occurred as she alleged or that a protected class was the reason for the SIEA’s actions. The Agency
additionally states that while the SIEA was assigned to the same building as Complainant from
March through April 2013, he was assigned to a different floor and was instructed to have no
contact with Complainant.

STANDARD OF REVIEW

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).

2 We note that Complainant only addresses claims 4, 6, and 7 on appeal.

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ANALYSIS AND FINDINGS

Summary Judgment

We first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission’s regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An
issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
Issuing a decision without holding a hearing is not appropriate for a case that can only be resolved
by weighing conflicting evidence. If the non-moving party “has not had the opportunity to discover
information that is essential to his opposition,” then a decision without a hearing is inappropriate.
Anderson, 477 U.S. at 250. The AJ must enable the non-moving party to engage in sufficient
discovery to respond to a motion for a decision without a hearing. After receiving an opposition to
a motion for a decision without a hearing, an AJ may order discovery as necessary. 29 C.F.R.
§ 1614.109(g)(2).

After a careful review of the record, we find that the AJ’s issuance of a decision without a hearing
was not appropriate, as the record is not sufficiently developed, there are genuine issues of material
fact in dispute, and the credibility of witnesses is at issue, as explained below.

Coworker Harassment Based on Reprisal

To establish a prima facie case of hostile environment harassment, complainant must show that:
(1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer.

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See McCleod v. Social Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In the case of coworker harassment, an agency is responsible for acts of harassment in the
workplace where the agency (or its agents) knew or should have known of the conduct, unless it
can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance:
Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An
agency can raise an affirmative defense when it shows that it took immediate and appropriate
corrective action. Id. What is appropriate remedial action will necessarily depend on the particular
facts of the case, such as the severity and persistence of the harassment and the effectiveness of
any initial remedial steps. Taylor v. Dep’t of Air Force, EEOC Request No. 05920194 (July 8,
1992).

Upon review, we find that a genuine issue of material fact exists as to whether the SIEA pointed
his firearm at Complainant and pulled the trigger on December 18, 2012, and whether he did so in
reprisal for Complainant’s husband reported prior protected EEO activity.3 In so finding, we note
that both the SDDO and a former firearm instructor corroborated Complainant’s version of events.
The SDDO specifically attested that she observed the SIEA unprofessionally pointing his firearm
in Complainant’s and her husband’s direction, pulling the trigger twice. ROI, at 530-531, 535. The
former firearm instructor also wrote that another instructor had to intervene to prevent the SIEA
from pointing his firearm at Complainant for a third time. Id. at 170. If the description of this
matter is true as Complainant, her husband, the SDDO, and the former firearm instructor describe,
the SIEA’s actions during the training would no doubt be severe enough to amount to a hostile
work environment.

In addition, Complainant (and her husband) stated that her husband filed a formal EEO complaint
in June 2012 over the SIEA’s harassment towards him, but the record does not contain a copy of
the husband’s formal complaint. Id. at 60, 477. We note, however, that a Deportation Officer
expressed his belief that Complainant’s association with her husband’s prior EEO activity was a
factor with respect to the circumstances surrounding the firearm incident and the Agency’s
subsequent handling of it. Id. at 566.

3 The Commission and courts have long recognized that an allegation of discrimination based on
an individual’s association with, or relationship to, another individual of a protected class gives
rise to an associational discrimination claim under Title VII. See Smith v. Dep’t of Agriculture,
EEOC Appeal No. 0120110535 (Apr. 25, 2011) (finding that the EEO activity of complainant’s
wife was sufficient to form the basis of a cause of action for reprisal discrimination, regardless of
any other EEO activity of complainant) see also Complainant v. Dep’t of Transp., EEOC Appeal
No. 0120133080 (July 15, 2015); Complainant v. Dep’t of Hous. and Urban Dev., EEOC Appeal
0120122992 (Feb. 10, 2015); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th
Cir. 1986).

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We also note that Complainant’s husband directly wrote to management in emails in August 2012
that the SIEA had been subjecting him and his wife (Complainant) to a hostile work environment.
The Agency found that evidence did support Complainant’s husband’s allegations on October 31,
2012. We find that a genuine issue of material fact exists as to whether Complainant’s husband’s
August 2012 emails to management constituted protected EEO activity as the record does not show
if discrimination was mentioned by Complainant’s husband in alleging a hostile work
environment. ROI, at 104-105. We note that shortly after the Agency found that evidence did
support Complainant’s husband’s allegations, the SIEA was reported to have pointed his firearm
at Complainant and her husband. Complainant was also apparently not told in advance that the
SIEA would be her firearm instructor, and we note that the SIEA was also later assigned to work
in same building as Complainant even after the December 18, 2012, alleged incident. These
circumstances raise another genuine issue of material fact as to whether the Agency took
appropriate corrective action to separate Complainant and the SIEA, so as to avoid liability for the
alleged hostile work environment.

Given the severity of the alleged harassment (pointing a gun at Complainant and pulling the
trigger) and that Complainant’s husband purportedly engaged in protected EEO activity shortly
before the incident, we find that judgment as a matter of law should not been granted in the
Agency’s favor. We find that the unresolved issues described above require an assessment as to
the credibility of the various management officials, co-workers, and Complainant, herself.
Therefore, we find that the AJ erred in issuing Summary Judgment in this case.

The courts have been clear that summary judgment is not to be used as a “trial by affidavit.”
Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that, when
a party submits an affidavit and credibility is at issue, “there is a need for strident cross-
examination and summary judgment on such evidence is improper.” Pedersen v. Dep't of Justice,
EEOC Request No. 05940339 (February 24, 1995).

CONCLUSION

Therefore, after a careful review of the record, including Complainant's arguments on appeal, the
Agency’s response, and arguments and evidence not specifically discussed in this decision, the
Commission VACATES the Agency’s final action and remands the matter to the Agency in
accordance with this decision and the Order below.4

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide
written notification to the Compliance Officer at the address set forth below that the complaint file
has been transmitted to the Hearings Unit.

4 In light of our remand of claims 4, 6, and 7, the Commission declines to fragment the complaint
by separately addressing claims 1-3 and 8 on appeal.
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Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with
29 C.F.R. § 1614.110.

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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition.
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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). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the
absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received
by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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 (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
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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

July 30, 2019
Date