Verla G.,1 Complainant,v.Mike Young, Acting Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120150367 (E.E.O.C. Apr. 5, 2017)

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

Verla G.,1
Complainant,

v.

Mike Young,
Acting Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120150367

Hearing No. 450-2013-00285X

Agency No. FS-CF-2012-01039

DECISION

On October 29, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s October 6, 2014, final decision 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., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a Supervisory Employee Relations Specialist (SERS) at the Agency’s
Service Center in Albuquerque, New Mexico, although her actual duty station was in Fort
Worth, Texas. She filed an EEO complaint on August 13, 2012, and amended it on July 7 and
August 6, 2013. In her complaint, she alleged that the Assistant Director for Employee
Relations who was her supervisor between September 2011 and March 2012 (S1), the Branch

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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Chief who served as her supervisor since August 2012 (S2), and the Human Resources
Management Director who served as a Selecting Official (SO) for a position for which
Complainant applied (SO) had subjected her to disparate treatment and harassment because of
her race (African-American), disability (residual effects of back injury), age (40+), and
reprisal (instant EEO complaint) between September 2011 and July 2013.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing but subsequently withdrew her request. Consequently, the Agency issued
a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

Complainant identified the following incidents as comprising her complaint:2

1. On March 25, 2012, S1 removed Complainant from her temporary position as a GS-14
SERS and returned her to her previous GS-13 position without explanation.

2. On March 25, 2012, S1 assigned Complainant to a GS-13 position that was not the
position from which she had been temporarily promoted.

3. On March 26, 2012, S1 temporarily promoted Complainant’s previous subordinate (S3)
to GS-14, while reassigning Complainant as S3’s subordinate between March and
August 2012.

4. On March 27, 2012, S1 failed to notify Complainant of a vacancy for the Personnel
Misconduct Investigations branch chief position.

5. Between September 2011 and May 2013, S1 and S2 subjected Complainant to a hostile
work environment as evidenced by the following alleged occurrences:

a. Since September 2011, S1 had assigned Complainant an inordinately large
amount of work.

b. Since September 2011, S1 had not relieved Complainant of her duties as a
journey-level ERS while in her temporary supervisory position.

c. Since September 2011, S1 assigned Complainant to be the lead over the most
critical and time-consuming projects.

2 Although the incidents are not listed in chronological order, this is the order in which they
were identified in the Agency’s final decision.
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d. Since September 2011, S1 had not given Complainant any information about her
service regions.

e. Since September 2011, S1 had not invited Complainant to visit any sites in
Region 5.

f. Since September 2011, S1 held Complainant to a higher standard regarding
work-related travel, production, and quality.

g. In September 2011, when S1 temporarily promoted Complainant to GS-14, S1
did not notify Complainant of her new assignment.

h. In late September or early October 2011, S1 made negative comments directed
toward Complainant.

i. Since September 2011, S1 met with and emailed Complainant’s subordinates
without copying her or inviting her to participate in those discussions.

j. In November 2011, S1 belittled Complainant after she provided input for the
team responsible for the Labor and Employee Relations Information System
(LERIS).

k. In November 2011, S1 disturbed Complainant’s presentation.

l. In December 2011, S1 did not respond to Complainant’s request for leave
restoration.

m. In January 2012, S1 humiliated Complainant for stating that she was going to
ask that the workload be distributed more equitably between her and S3.

n. In January and February 2012, while Complainant was attending two training
sessions, S1 singled her out by having a separate meeting with her instead of a
staff meeting with all of the subordinate supervisors.

o. In February 2012, S1 denied Complainant’s staffing recommendations.

p. In February 2012, S1 belittled Complainant via email regarding case studies for
Region 5.

q. In March 2012, S1 humiliated Complainant on a conference call with a
colleague in connection with a training session Complainant was attempting to
arrange.

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r. In August 2012, the Assistant Director for Employee Relations who had taken
over for S1 (S4) limited Complainant’s opportunities to compete for promotion
by not making a new branch chief position a 100% telework position.

s. In January 2013, S2 awarded Complainant an overall rating of “Superior,”
rather than “Outstanding” for her FY 2012 performance appraisal.

t. From February to May, 2013, S2 failed to correct an element on Complainant’s
FY 2012 performance appraisal that management agreed to raise.

u. Since November 2012, S2 failed to process a performance award that
Complainant was entitled to receive by virtue of having earned an overall rating
of “Superior” on her FY 2012 performance appraisal.

6. From March through July 2012, the SO did not interview Complainant for a permanent
GS-14 Branch Chief Position.

7. Between June and July 2012, the SO did not select Complainant for the GS-14 Branch
Chief position.

The incidents are described in detail as follows3:

Harassment

Incidents 5(h), 5(j), 5(k), 5(m), 5(n), 5(p), 5(q): Complainant averred that S1 disparaged her
on numerous occasions during and after her detail as a GS-14 Branch Chief. She averred that
S1 had said that many senior managers did not know their Employee Relations Specialists, that
the work of the Specialists in the Washington Office needs to be more succinct, that S1 had
snapped at her when she tried to make a suggestion during a meeting, that S1 had interrupted
Complainant while she was making a presentation at another meeting, that S1 became angry
with her when she asked for a realignment within the organization at a third meeting, and
several other similar incidents. She characterized S1’s statements as personal attacks on her,
but acknowledged that she never advised anyone at the time that she believed S1’s comments to
constitute harassment. IR 110-11, 113-20, 123-26. Concerning the presentation, in an email to
Complainant and the other presenters dated December 1, 2011, S1 stated that she wanted to
congratulate them on a job well done. AB: Ex. 11, p. 64a. On March 1, 2012, S1 sent
Complainant another complimentary email regarding training materials she had prepared
regarding medical issues. AB: Ex. 11, pp. 65-66.

3 To the extent that incidents describe different elements of the same events or transactions,
discussions of those incidents will be combined.
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Disparate Treatment

Terms and Conditions of Employment

Incidents (1) – (3): Per S1’s recommendation, Complainant received a one-year temporary
promotion to GS-14, effective September 18, 2011. IR 247-48, 295. However, effective
March 25, 2012, approximately six months into the detail, S1 restored her to a GS-13 position
equivalent to the position she held prior to the temporary promotion. IR 94-96, 249-50. As a
result of that action, she effectively reversed roles with one of her subordinate employees. IR
96-99. S1 averred that after Complainant was placed into the position of Branch Chief, it
became apparent that she was unable to manage her staff or her workload. Agency’s Brief in
Response to Complainants Appeal (RB): Exhibit (Ex.) 3, ¶ 5. In particular, S1 noted that
Complainant spent far too much time writing excessively long emails and second-guessing her
decisions and that she and Complainant had several counseling sessions in which she tried to
give Complainant advice on how to manage her staff and work more effectively. RB: Ex. 3,
¶¶ 6-8. S1 also stated that she replaced Complainant with S3 because she felt that S3 was
more decisive and was better able to manage subordinates. RB: Ex. 3, ¶ 10; Ex. 7. Email
traffic dated March 12, 2012, indicates that S1 honored Complainant’s request that she state
that Complainant had stepped down for personal reasons. Appeal Brief (AB): Ex. 12, pp. 68-
70.

Incident (4): Complainant averred that on March 27, 2012, S1 failed to notify her about the
posting of a vacancy announcement for the position of Chief of the Personnel Misconduct
Investigations (PMI) Branch, a permanent GS-14 position. She averred that the Agency had a
policy of announcing positions via email to employees, and that S1 had sent out an email on a
Human Resources Officer position but not on the PMI Branch Chief position. IR 99-101.

Incidents 5(a) – 5(g): Complainant averred that she was never formally notified that she had
been given a temporary promotion, and that during the six-month time frame in which she
served as a GS-14 Branch Chief, she was given a far larger work load to manage that the other
Branch Chief (S4). IR 101-02, 105-10. According to S4’s affidavit and an email from S1 to
the Deputy Business Operations Chief’s Special Assistant, Complainant managed Team (1)
while S4 managed Team (2). Complainant was responsible for Regions (1) through (5) and the
Job Corps while S4 was responsible for Regions (6) through (10) and several other offices. Of
the 116 cases received by the two teams, 81 were distributed to Team (1) with 45 cases going
to Region (5) alone. RB: Ex. 4; Ex. 5, ¶ 8. Complainant acknowledged that she was unaware
of any policy regarding the distribution of work or employee travel. IR 102-05, 108-09. S4
averred that when she became an acting supervisor S1 did not call her to notify her that she
had been selected and that, like Complainant, she was not relieved of her previous
responsibilities. RB: Ex. 5, ¶¶ 4, 5.

Incidents 5(i), 5(l), 5(o): Complainant averred that between September 2011 and March 2012,
S1 bypassed her and communicated directly with her subordinate supervisors without including
her in the ensuing discussions, that in December 2011, S1 failed to respond to her request for
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leave restoration, and that in February 2012, S1 denied her staffing recommendations. IR 111-
13, 116-17, 121-23; AB: Ex. 1, pp. 1-7; Supplemental Appeal Exhibit 1, pp. 2-7. S1
responded that because Complainant was so bogged down, she often had no other choice but to
contact Complainant’s Employee Relations Specialists directly, many of whom were dealing
with high profile cases that were considered priorities by the Assistant Secretary for
Administration. RB, Ex. 3, ¶ 9. As to S1’s alleged failure to respond to Complainant’s
request for leave restoration, Complainant herself stated that she never pursued the matter
beyond the initial request. IR 116.

Incident 5(r): Complainant averred that in August 2012, rather than making a third permanent
branch chief position 100% telework so that she could apply for it, the Assistant Director for
Labor Relations who succeeded S1 (ADER) limited possible locations for that position to
Albuquerque, New Mexico or Vallejo, California. IR 126-28. The ADER responded that
100% telework was not compatible with leadership positions at the GS-14 level and was
inconsistent with guidance put out by the new Director of Human Resources. He further
averred that none of the existing GS-14 branch chief positions were 100% telework, and that
he had approved up to two days of telework per pay period for those positions. IR 210-11.

Incidents 5(s), 5(t): Complainant alleged that S2 issued her a performance appraisal rating of
“superior,” rather than “outstanding” in January 2013, and that S2 failed to correct one of her
performance elements between February and May 2013. IR 128-31. Documentation of
Complainant’s performance appraisal for FY 2012 shows that Complainant initially received
ratings of having met the fully successful performance standard for two out of four critical
elements and that she received ratings of having exceeded the standard for the other two
elements, entitled, “civil rights” and “safety.” IR 261. After Complainant appealed the
rating, S2 agreed to change the rating on the civil rights element to “exceeds,” in May 2013,
which did not result in a change of the overall rating. IR 201-02, 211-12, 263-73.

Incident 5(u): Complainant alleged that since November 2012, S2 had denied Complainant a
$750 performance award that she had earned by virtue of having received an overall
performance appraisal rating of “superior” for FY 2012. She averred that S2 failed to input
information pertaining to her award into the appropriate database. IR 132-33. Both S2 and the
ADER responded that Complainant was advised in December 2012 that she would receive the
$750 award, but that the delay initially resulted from the fact that Complainant was contesting
her overall appraisal rating and would have been entitled to a higher award if she had
prevailed. They also averred that the awards to be given to Complainant and several other
employees were placed on hold in early 2013 due to a budget freeze resulting from
sequestration, and that as of the date of the investigation, the holds were still in place. IR 203,
212, 262, 269, 274-75; AB: Ex. 39, pp. 260-65.

Nonpromotion

Incidents 6, 7: Complainant alleged that she was neither interviewed nor selected by the SO
for a permanent Branch Chief position between March and July 2012. According to the
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documentation pertaining to the selection process, Complainant was on a lateral referral list but
did not score high enough to merit an interview. AB: Ex. 42, p. 277. Complainant
nevertheless maintained that she had more experience than either of the selectees, S2 and S4.
IR 148-49, 151-54, 287; AB: Ex. 4, pp. 21-22; Ex. 5, pp. 34-35.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).

Harassment – Incidents 5(h), 5(j), 5(k), 5(m), 5(n), 5(p), 5(q)

Harassment of employees that would not occur but for their membership in statutorily
protected groups is unlawful if sufficiently patterned or pervasive. Wibstad v. United States
Postal Service, EEOC Appeal No. 01972699 (August 14, 1998). To establish a claim of
harassment Complainant must initially 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 her
statutorily protected classes; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

Complainant belongs to statutorily protected classes. We will assume, for purposes of
analysis, that Complainant considered the conduct in question unwelcome, which satisfies the
second element. It is upon the third and fourth elements, however, that Complainant’s
harassment claim runs aground.

In order to satisfy the third element, Complainant must establish, by a preponderance of the
evidence, the existence of an unlawful motive attributable to S1, and if she fails to do so, the
harassment inquiry ends. See e.g. Complainant v. Dept. of Homeland Security, EEOC Appeal
No. 0120132795 (June 17, 2015) (The focus of the inquiry always remains on the motivation
of the named officials, even if their business judgment turns out to be incorrect, [and] if
Complainant fails to establish the existence of a discriminatory or retaliatory motive on the part
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of any named official, the Commission’s inquiry will end without the need to determine
whether any of those incidents are severe or pervasive enough to rise to the level of
harassment). Inadequately explained inconsistencies in the record are often indicative of
unlawful motive. See Broderick D. v. U.S. Postal Service, EEOC Appeal No. 0120162220
(Jan. 11, 2017) (indicators of pretext include inconsistencies in the evidentiary record).

When asked why she believed that her race, age, disability, and EEO activity were motivating
factors in the incidents comprising her harassment claim, Complainant responded that S1, who
was African-American, had a propensity to treat her harshly and that S2, S3, and S4 were all
non-African American. IR 133-44. Beyond these extensive, but conclusory assertions,
Complainant has not presented affidavits, declarations, sworn statements from witnesses other
than herself, or documents which contradict the explanations provided by S1, or that call S1’s
veracity into question. Complainant’s harassment claim therefore founders on the third prong
of the analysis.

Even if Complainant had established the requisite intent on the part of S1, her claim would still
not survive the fourth prong. Anti-discrimination statutes are not general civility codes
designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC
Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes,
trivial slights and petty annoyances between an alleged harasser and a Complainant do not rise
to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the
work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81
(1998). In other words, the incidents complained of must have been “sufficiently severe or
pervasive to alter the conditions of Complainant's employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore,
regardless of the existence of unlawful intent on the part of S1, routine work assignments,
instructions, and admonishments are by definition neither severe nor pervasive enough to rise
to a level of abuse on par with a racial epithet or otherwise engender a hostile work
environment. Complainant v. Dept. of State, EEOC Appeal No. 0120123299 (February 25,
2013). Similarly, a single incident or group of isolated incidents will generally not be regarded
as discriminatory harassment unless the conduct is severe. Irvin C. v. Dept. of State, EEOC
Appeal No. 0120141173 (Aug. 29, 2016). In this case, all of the incidents cited by
Complainant as evidence of harassment amounted to nothing more than work-related directives
or admonishments that are neither singly nor collectively severe enough to be considered even
remotely abusive or hostile. Consequently, we need not address the final element of the
harassment analysis.

Disparate Treatment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claim, Complainant would
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have to prove, by a preponderance of the evidence, that S1, S2 or the ADER was motivated by
unlawful considerations of her race, age, disability, or EEO complaint in connection with the
incidents comprising her disparate treatment claim. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant may establish motive by presenting
evidence tending to show that the reasons articulated by the officials named in the complaint
for their actions were pretext, i.e., not the real reason but rather a cover for discrimination.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them
unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802
(Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May
30, 2008). Indicators of pretext include discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, or deviations from standard procedures without
explanation or justification. Mellissa F. v. U.S. Postal Service, EEOC Appeal No.
0120141697 (Nov.12, 2015).

Employment Terms and Conditions – Incidents 1 – 5(g), 5(i), 5(l), 5(o), 5(r)-5(u)

As to incidents 1 through 3, which concern S1’s decision to end Complainant’s temporary
promotion to GS-14, S1’s stated reason for doing so was that Complainant had not been able to
manage her subordinates or her workload, and that S3 was able to accomplish both of those
tasks. S1’s decision to honor Complainant’s request that she state that Complainant voluntarily
resigned from the detail undermines her assertion that S1 harbored a discriminatory motive
towards her. Regarding incident 4, the fact that S1 had not notified Complainant of an
upcoming vacancy appears to be an oversight on the part of S1.

Concerning incidents 5(a)-(g), (i), (l), and (o), the friction between Complainant and S1 was
the result of Complainant’s apparent inability to manage her workload while on detail to the
GS-14 Branch Chief position. To the extent that S1 communicated directly with Complainant’s
subordinates, she stated that she did so in order not to overburden Complainant even further.
Complainant had not shown that S1 had violated any Agency policy, procedure, or protocol in
doing so. Complainant obviously found out about her temporary promotion notwithstanding
S1’s failure to officially inform her. Moreover, S1 also failed to let S4 know that she would
become an acting Branch Chief. Neither Complainant nor S4 had been relieved of their duties
as GS-13 Employee Relations Specialists. While it is true that most of the 118 cases opened
during FY 2012 were assigned to Complainant’s team, Complainant has not presented any
documents or sworn statements tending to establish the existence of any of the indicators of
pretext described above in connection with how those cases were actually assigned. The same
is true regarding incidents 5(r) through 5(u). Complainant has not submitted any evidence
contradicting the ADER’s explanation for not making the additional GS-14 Branch Chief
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position 100% telework or S2’s explanations for giving Complainant an overall performance
appraisal rating of “superior” for FY 2012 and for why Complainant did not receive her
performance award for FY 2012.

Nonpromotion – Incidents 6 and 7

When hiring or promoting, agencies have broad discretion to choose among equally qualified
candidates as long as the selection is not based on unlawful considerations. Complainant v.
Dept. of Homeland Security, EEOC Appeal No. 0120141478 (July 31, 2015). Agencies may
select candidates with fewer years of experience if they believe that such candidates are best
qualified to meet the needs of the organization. See Complainant v. Dept. of Justice, EEOC
Appeal No. 0120131151 (Feb. 25, 2015). Agencies may even preselect a candidate as long as
the preselection is not premised upon a prohibited basis. See Complainant v. Dept. of
Homeland Security, EEOC Appeal No. 0120132858 (Mar. 9, 2015). In addition to the factors
listed above, Complainant could demonstrate pretext in nonselection cases by showing that her
qualifications for the GS-14 position were plainly superior to those of the selectees, S2 and S4.
Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015).

In this case, the documentation pertaining to the selection process shows that while
Complainant was on the list of lateral referrals by virtue of having been at the GS-14 level for
at least six months, the rating score of 96 that she was given for her application package did
not reach the cutoff score of 100 necessary for her to move on to the interview. While
Complainant had extensive experience and was undoubtedly qualified for the position, she has
neither shown that her qualifications were plainly superior to those of S2 and S4, nor that the
SO somehow deviated from the Agency’s standard merit promotion procedures in selecting S2
and S4 over her. And as with the other incidents, she has not provided any documents or
sworn statements suggesting the presence of the other indicators of pretext listed above.

Summary

We agree with the Agency that Complainant has not presented enough evidence to establish the
existence of an unlawful motive on the part of S1, S2, the ADER, or the SO with respect to
any of the incidents identified in the instant complaint. We likewise agree with the Agency
that none of the incidents, either singly or collectively, constitute unlawful harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against or harassed as alleged.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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.

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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

April 5, 2017
Date