U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darell C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181833
Hearing Nos. 450-2016-00283X, 450-2017-00018X
Agency Nos. 4G-752-0083-16, 4G-752-0179-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 12, 2018, final
order concerning his equal employment opportunity (EEO) consolidated complaints alleging
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order which adopted the decision of the EEOC
Administrative Judge finding no discrimination.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency was entitled to a grant of summary judgment as
a matter of law; and (2) whether Complainant has failed to show by a preponderance of the
evidence that the Agency discriminated against him when it changed his start-time twice and
reduced his working hours from an eight-hour day.
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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BACKGROUND
At the time of giving rise to these complaints, Complainant’s position was that of a City Carrier at
the Agency’s Highland Hills Station in Dallas, Texas. Complainant was involved in a work-related
accident in August 1986. Over the years following, the Agency had assigned Complainant to
limited-duty work through the Department of Labor’s Office of Workers’ Compensation Programs
(OWCP).
Complainant had participated in protected activity by filing other complaints and filing appeals
before the Commission. The alleged discriminating official in the instant complaints was the
Acting Manager (Manager) of the Highland Hills Station. She began working in the Highland
Hills Station in November 2015. She was not involved in Complainant’s prior discrimination
complaints. She changed Complainant’s starting time from 4:30 a.m. to 6:30 a.m. and prohibited
him from working an eight-hour workday. From December 16, 2015, to December 24, 2015,
Complainant worked only part of the day and was sent home for the remainder of the day.
Complainant was on annual leave from December 26, 2015, to January 1, 2016. On January 2,
2016, the Manager brought Complainant back to work for a full eight-hour day and he was
permitted to begin work at 4:30 a.m. as he had done previously. He continued to begin work at
4:30 a.m. until March 31, 2016.
Meanwhile, on January 13, 2016, the Clerk union filed a grievance alleging that Complainant was
performing Clerk craft duties. As a result of the grievance, the Manager again changed
Complainant’s starting time from 4:30 a.m. to 6:30 a.m. She offered Complainant an Offer of
Modified Assignment casing routes for up to six hours daily from 6:30 a.m. to 3:00 p.m. which
Complainant accepted under protest.
Complainant filed two discrimination complaints, subsequently consolidated, alleging that the
Agency discriminated against him on the bases of disability (back injury) and reprisal for prior
protected activity when:
Complaint-1, Agency No. 4G-752-0083-16
1. On December 16, 2015, his starting time was changed by two hours.
2. From December 16, 2015, and continuing, he was not permitted to work an
eight-hour day.
Complaint-2, Agency No. 4G-752-0179-16
3. On April 1, 2016, his starting time was changed by two hours.
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Complainant stated in his affidavit that the Manager told him that the reason his starting time was
changed was because a grievance had been filed by the Clerk union, alleging that Complainant
was performing Clerk work from 4:30 a.m. to 6:30 a.m. In her affidavit, the Manager stated that,
on December 16, 2015, the union representing the Clerks filed a grievance claiming that
Complainant was crossing crafts. When the Manager came to the Highland Hills Station in
November 2015, Complainant was sorting mail to the “distribution/hot case,” which was a Clerk
function that Clerks were to perform during the hours of 4:30 a.m. to 1:00 p.m.
Complainant told the Manager that he had a modified job assignment permitting him to perform
Clerk work. The Manager requested that Complainant provide a copy of the modified assignment.
When Complainant did not do so, the Manager changed Complainant’s start time from 4:30 a.m.
to 6:30 a.m.
Complainant’s PS Form 50 indicates that Complainant’s position is that of a City Carrier. An
OWCP Duty Status Report (Report) discloses that Complainant was examined on February 8,
2016, and had chronic low back strain with a diagnosis of lumbar disc disease.2 The Report also
reveals that Complainant could not perform his regular work. It further discloses, among other
restrictions, that he could lift 20 pounds of mail but could not carry it, was restricted from climbing,
and could not work in extreme temperatures or exposure to fumes, dust or noise.
At the conclusion of the two investigations conducted on the complaints, the Agency provided
Complainant with a copy of each report of investigation (ROI) and notice of his right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s December 4, 2017, motion for a decision without a hearing (summary
judgment) and issued a decision on April 5, 2018. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
AJ’s Decision
The AJ found that Complainant failed to establish a prima facie case of reprisal or disability
discrimination as to claims 1 and 2. Regarding claim 3, the AJ determined that Complainant had
established a prima facie case of reprisal but failed to show that he was treated less favorably than
similarly-situated employees.
The AJ also determined that, even if Complainant had established a prima facie case on each basis,
Complainant had failed to rebut the Agency’s reasons for its actions. The AJ noted that the actions
were taken because of a grievance filed which alleged that Complainant was performing Clerk
work in violation of the collective bargaining agreement, i.e., crossing crafts.
2 An Investigator’s Note in Complaint-2 discloses that Complainant did not provide a waiver in
order to obtain any of his workers’ compensation records, although it was requested.
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The AJ assumed without deciding that Complainant was a qualified individual with a disability
during the relevant time period because, according to the AJ, Complainant was qualified to
perform the work contained in the two offers of Modified Assignment, one in January 2013 and
the other one in April 2016, which were issued by the Manager.
CONTENTIONS ON APPEAL
Complainant asserts that there are genuine facts in dispute, that he has established a prima facie
case on each basis, and that the actions were taken against him for discriminatory reasons. He also
argues that a hearing was necessary because his witnesses would show that the Agency’s reason
for prohibiting him from performing Clerk craft work was not the true reason. Complainant further
asserts that he would testify that he continues to perform Clerk work.3
Complainant continues to maintain that the Agency violated provisions of the Employees and
Labor Manual (ELM) because it failed to make every effort to assign him to limited duty consistent
with his medical restrictions. He also maintains that other limited-duty employees were given
work within their medical limitations.
Complainant contends that the Manager should have known of his protected activity since 2010.
The Agency provided a brief statement urging that its decision be affirmed.4
STANDARD OF REVIEW
The decision in this matter was issued without a hearing. Accordingly, it is subject to a de novo
review by the Commission. 29 C.F.R. § 1614.405(a); Equal Employment Opportunity
Management Directive (MD-110) for 29 C.F.R. Part 1614, at Chapter 9, § VI.B. (Aug. 5, 2015).
A de novo review requires that the Commission examine the record without regard to the factual
and legal determinations of the previous decision maker and 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. The Commission is 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.
3 On appeal, Complainant asserts that the modified assignment was not made pursuant to Office
of Workers’ Compensation Programs guidelines. This assertion is a collateral attack on the
workers’ compensation process and does not state a claim under the discrimination statutes.
Therefore, it will not be considered.
4 Although, in its “Agency’s Response Opposing Complainant’s Request to Reconsider,” the
Agency referenced a brief having been filed, we find none in the record.
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ANALYSIS AND FINDINGS
Grant of 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 no genuine issue of material fact exists. 29 C.F.R. § 1614.109(g); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. According to the U.S.
Supreme Court, “the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, 477 U.S. at 247.
The AJ’s function is not to weigh the evidence but rather to determine whether there are genuine
issues for trial. Id. at 249. In considering whether summary judgment is proper, 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. Anderson v. Liberty Lobby, 477 U.S.
at 255.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In addition, in the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination that
the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003).
We find that summary judgment was appropriate, and the Agency was entitled to a grant of
summary judgment as a matter of law. Having considered Complainant’s arguments in his
opposition to the motion for summary judgment and on appeal, we find that there exists no genuine
issue of material fact; the record is adequately developed; and no findings of fact need be made by
weighing conflicting evidence or assessing witness credibility.
We have long recognized that the party opposing summary judgment must do more than merely
recite facts or rest on his pleadings to demonstrate that such a genuine dispute of material fact
exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson, 477 U.S. at 247. Accordingly, the party opposing summary judgment
must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have
also recognized that not every factual dispute qualifies as a genuine issue that will prevent
summary judgment. Adah P. v. Dep’t of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31,
2016); Complainant v. Dep’t of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014).
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Although Complainant stated that, had he and his witnesses been given the opportunity to go
forward to hearing, he would have been able to show that the reasons given by the Agency for its
alleged discriminatory conduct were not the true reasons for its actions, Complainant has provided
no specific proffer as to what their testimony would be.
Merits of the Complaint
1. Applicable law
a. Disparate treatment
Complainant alleged that he was subjected to disparate treatment. Generally, the adjudication of
a complaint of discrimination alleging disparate treatment follows a three-step analysis.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, the burden is on the
complainant to establish a prima facie case 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
challenged action. Second, the agency has the burden of production to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Third, once the agency has articulated a legitimate, nondiscriminatory reason for its
actions, and in order for the complainant to prevail, the complainant must show by a preponderance
of the evidence that the agency’s stated reasons are pretext for discrimination. 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. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Complainant can demonstrate that the Agency’s reason for its action was pretextual, that is, not
the true reason for the Agency’s action, by showing that the reason offered by management is
factually baseless, is not the actual motivation for the action, or is insufficient to have motivated
the action. See Tincher v. Wal-Mart Stores, Inc., 118 F.3d 1125, 1130 (7th Cir. 1997); Morgan v.
Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Also, pretext may be supported by evidence of
unequal applications of agency policy. Harris v. Dep’t of the Army, EEOC Request No. 05940999
(Mar. 14, 1996). “Pretext can be demonstrated by ‘showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for
its action that a reasonable fact finder could rationally find them unworthy of credence.’”
Dalesandro v. United States Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing
Morgan v. Hilti, Inc., 108 F.3d at 1323).
b. Reasonable Accommodation
An employer is required to make reasonable accommodation to the known physical or mental
limitations of an "otherwise qualified" employee with a disability, unless the accommodation
would impose an undue hardship. 29 C.F.R. § 1630.9.
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In order to establish that the Agency denied him a reasonable accommodation, Complainant must
show that: (1) he is an “individual with a disability,” as defined by 29 C.F.R. § 1630.2(g); (2) he
is a “qualified” individual with a disability pursuant to 29 C.F. R. § 1630.2(m); and (3) the Agency
failed to provide a reasonable accommodation. See EEOC Enforcement Guidance: Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No.
915.002 (Oct. 17, 2002) (Enforcement Guidance).
The term qualified means "that the individual satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such individual holds or desires
and, 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 duties of a job, i.e., the
outcomes that must be achieved by someone in that position. Id. at § 1630.2(n); Complainant v.
U.S. Postal Serv., EEOC Appeal No. 0120080613 (Dec. 23, 2013). The function may be essential
because the reason the position exists is to perform that function. 29 C.F.R. § 1630.2(n).
c. Reprisal
Complainant has also alleged that he was subjected to reprisal. EEOC Regulation 29 C.F.R.
§1614.101(b) provides that no person shall be subject to retaliation for opposing any unlawful
discriminatory practice or for participating in any stage of the EEO complaint process or in judicial
proceedings. To establish a prima facie case of reprisal, the complainant must present facts that,
if unexplained, reasonably give rise to an inference of discrimination. See Cardozo v. Dep't of
Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004). Specifically, the complainant
may establish a prima facie case of reprisal by showing that: (1) he engaged in 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. See Whitmire v. Dep’t. of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000);
Coffman v. Dep't of Veteran Aff., EEOC Request No. 05960473 (Nov. 20, 1997). The nexus may
be shown by evidence that the adverse treatment followed the protected activity within such a
period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of
Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005). Although temporal proximity raises an
initial inference of discrimination, it does not establish pretext. See Matilda C. v. Equal
Employment Opportunity Commission, EEOC Appeal No. 0720140027 (July 31, 2018).
2. Analysis
Upon review, the Commission finds that Complainant has failed to show by a preponderance of
the evidence that the Agency was motivated by discriminatory animus when it engaged in the
alleged discriminatory actions. In so concluding, we have also found that Complainant has failed
to show that the reasons articulated by the Agency were pretextual and that he was subjected to
disparate treatment.
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Regarding claims 1 and 3 (starting times changes) and claim 2 (reduced working hours), we first
note that it is outside of our jurisdiction to determine whether the Agency was in violation of the
collective bargaining agreement. That being noted, the Agency’s articulated reasons were that
grievances were filed against it for crossing crafts, i.e., Complainant was performing work of the
Clerk craft and not the Carrier craft between 4:30 a.m. and 6:30 a.m.; also, that there was no Carrier
work available to provide Complainant with eight hours of work daily within his restrictions. In
his affidavits, Complainant stated that the Manager told him that the Clerk union had filed a
grievance accusing him of performing Clerk craft work when she changed his starting times.
Even if the agency lied about the existence of a grievance, the alleged lie had to be linked to
discriminatory animus, which Complainant has not demonstrated by the preponderance of the
evidence.5 “An employer has the discretion to determine how best to manage its operations and
may make decisions on any basis except a basis that is unlawful under the discrimination statutes.”
Andre v. Dep’t of Defense, EEOC Appeal No. 01994562 (Feb. 22, 2002). An agency may make
an employment decision for a “good reason, a bad reason, a reason based on erroneous fact, or for
no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984).
Regarding his claim of being disparately treated, Complainant identified Employee A as a
comparator. Complainant asserted that Employee A’s starting time was not changed, and he was
permitted to work an eight-hour day. However, the evidence establishes that he was not similarly
situated because Employee A was not supervised by the Manager, the official to whom
Complainant reported directly and who had changed his starting times. In addition, Employee A
is within Complainant’s protected groups. He has a medical condition and he has engaged in
protected activity. Regarding claim 3, Complainant identified Employees B and C as comparators.
However, they are not similarly situated. They had different medical restrictions and were both
able to carry mail and deliver their routes.
The evidence does not establish that discriminatory animus motivated the Manager. Also, as stated
before, Complainant has not shown that the Agency’s articulated reasons for its actions were
pretextual.
To the extent that Complainant’s arguments about a modified assignment concern reasonable-
accommodation matters, we find that Complainant has not shown that the Agency unlawfully
failed to provide him with a reasonable accommodation.6
5 The Supreme Court stated that “nothing in law would permit us to substitute for the required
finding that the employer's action was the product of unlawful discrimination, the much different
(and much lesser) finding that the employer's explanation of its action was not believable.” St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 514-15 (1993).
6 In his affidavit, Complainant stated that he had never requested a reasonable accommodation for
his work restrictions nor has he appeared before the Agency’s District Reasonable
Accommodation Committee. We note that we have previously rejected the argument that federal
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We will assume, without deciding and for purposes of analysis only, that Complainant has a
disability. However, Complainant has not established that he is a qualified person with a disability
who can perform the essential functions of his position, that of a Mail Carrier, with or without an
accommodation. Complainant has the threshold burden of establishing that he is a qualified
individual with a disability, and that there is a nexus between his disability and his need for
accommodation in order to be entitled to a reasonable accommodation under the Rehabilitation
Act. See Nelson v. U.S. Postal Serv., EEOC Appeal No. 01981981 (Aug. 17, 2001); Ricco v. U.S.
Postal Serv., EEOC Appeal No. 07A10007 (Feb. 21, 2002); Struthers v. Dept. of the Navy,
07A40043 (June 29, 2006). Complainant acknowledges that he cannot perform some of the
functions of a Carrier.
What the record discloses is that Complainant is a City Carrier who cannot deliver mail. As noted
earlier, to be a “qualified individual with a disability,” Complainant must be able to perform the
essential functions of his position, with or without an accommodation. 29 C.F.R. § 1630.2(m).
The Commission's Enforcement Guidance explains that an employer does not have to eliminate an
essential function of a position to accommodate an individual with a disability. Enforcement
Guidance at “General Principles”; Gerald L. v. Dep't of Veterans Aff., EEOC Appeal No.
0120130776 (Nov. 10, 2015). Complainant has not identified a reasonable accommodation that
would have enabled him to perform the essential functions of his City Carrier position.
Further, the Agency provided Complainant with work consistent with his restrictions. We have
held that protected individuals are entitled to reasonable accommodation, not necessarily the
accommodation of the individual's choice but one that is effective. Castaneda v. U.S. Postal Serv.,
EEOC Appeal No. 01931005 (Feb. 17, 1994). Although an employee's preferred accommodation
should be considered, the Agency may ultimately choose among effective accommodations.
agencies should automatically provide reasonable accommodation under the Rehabilitation Act to
those who receive workers' compensation benefits. Byrd v. U.S. Postal Serv., EEOC Appeal No.
0120090961 (Aug. 2, 2011); see also Allen M. v. U.S. Postal Serv., EEOC Appeal No.
0120170370 (Dec. 12, 2018). In Byrd, we also rejected the contention that “receipt of workers'
compensation benefits puts the Agency on notice that it had to provide ... an accommodation.”
Byrd also recognized that “[a]n employee's rights under the Rehabilitation Act are separate from
[the employee's] entitlements under a workers' compensation law.” Byrd noted that “[t]he purpose
of the Rehabilitation Act is to prohibit federal agencies from discriminating against qualified
individuals because of disability in all aspects of employment. On the other hand, the purpose of
a workers' compensation law is to provide a system for securing prompt and fair settlement of
employees' claims against employers for occupational injury and illness.” It is under workers’
compensation laws that the agency provides “limited duty” assignments. See Wood v. U.S. Postal
Serv., EEOC Appeal No. 01A46073 (May 5, 2006)(“limited duty” work refers to employees who
have work restriction resulting from a work injury and “light duty” work refers to work provided
to employees who have medical restrictions not related to a work injury).
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See also Watson v. U.S. Postal Serv., EEOC Appeal No. 01A12280 (June 20, 2002) (an
individual's preference should be given primary consideration; however, the agency providing the
accommodation has the ultimate discretion to choose between effective accommodations)
We note that the Rehabilitation Act does not require an agency to provide “make do” work, create
“make work” jobs, or transform light-duty or limited-duty assignments into permanent jobs to
accommodate an employee's disability. See Mengine v. Runyon, 114 F. 3d 415, 418 (3d Cir.
1997); see also Josephine S. v. Dep't of Homeland Security, EEOC Appeal No. 0120161196 (June
26, 2018) (agency does not have to create “make do” or “make work” jobs); Complainant v. U.S.
Postal Serv., EEOC Appeal No. 0120122755 (Sept. 11, 2014) (employer not required to provide
“make do” work or create a job for an employee with a disability); Wood v. U.S. Postal Serv.,
EEOC Appeal No. 01A46073 (May 5, 2006) (employer not required to transform temporary light-
duty jobs into permanent jobs to accommodate a disability). To the extent that Complainant is
arguing that the Agency should have created a limited-duty position for him as part of its
reasonable-accommodation obligations under the Rehabilitation Act, his argument is without
merit.
Based on the foregoing and having construed the evidence in a light most favorable to
Complainant, we conclude that the preponderant evidence does not establish that discriminatory
animus motivated the Agency when it changed his starting times for work and when it reduced the
hours of his work day or that the Agency unlawfully failed to provide Complainant with a
reasonable accommodation.
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 decision finding no
discrimination.
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.
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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. 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 (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
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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 12, 2019
Date
