Claude S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 2, 2019

0120170251 (E.E.O.C. Apr. 2, 2019)

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

Claude S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120170251

Hearing No. 451-2011-00140X

Agency No. 2003-0674-2010102693

DECISION

On October 19, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 30, 2016, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final order.

ISSUES PRESENTED

The issues presented are whether the Agency discriminated against Complainant based on
disability, reprisal, and sexual orientation when it ordered him to take a mental fitness-for-duty
examination, and when he was denied union representation; and whether the Agency subjected
Complainant to a hostile work environment based on disability, reprisal, and sexual orientation.

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 events giving rise to this complaint, Complainant worked as a Social Worker,
Suicide Prevention Counselor, at the Agency’s Central Texas Veterans Health Care System in
Temple, Texas.

On or about May 26, 2010, Complainant alleged that a coworker made a death threat against him,
which was investigated by the police. A police detective interviewed Complainant, who stated that
he was being harassed. For example, when discussing the possible repeal of the military’s “Don’t
Ask, Don’t Tell” policy, a coworker allegedly stated that he “would hate for a tire to fall on
[Complainant]”, which Complainant perceived as a death threat. Complainant also alleged that the
Federal Bureau of Investigation (FBI) was spying on him; and that there was a conspiracy against
him. Report of Investigation (ROI) at pgs. 1242-1244. On June 4, 2010, the Chief of Staff (CS),
and the Chief of Mental Health (CMH) met with Complainant to instruct him to report for a fitness-
for-duty examination, based on the detective’s investigation.

Also on June 4, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male, homosexual), disability (unspecified perceived mental
disability), and in reprisal for filing the instant EEO complaint when:

A1 On June 4, 2010, Complainant was ordered to submit to a mental fitness-for-duty
examination.

A2 On June 4, 2010, Complainant was denied union representation.

B Complainant also alleged that he was subjected to a hostile work environment based
on sex with regard to 27 incidents that allegedly occurred from November 2008,
through June 4, 2010:

B1 In November 2008, a Supervisory Social Worker (SSW) denied Complainant’s
request to stay late;

B2 In November 2008, SSW denied Complainant’s request to work weekends;

B3 In November 2008, after addressing the Complainant’s concerns with the Chief of
Social Work, Complainant was given the hotline consults for all three regions, five
days a week, an increase in workload which lasted until August 2009;2

2 The Agency dismissed this claim as a discrete claim due to untimely contact with an EEO
counselor but accepted it as part of Complainant’s overall harassment claim.

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B4 Shortly after the Christmas 2008 holiday, while in a staff meeting, Coworker 1,
laughed at Complainant while looking at Coworker 2, as others present pretended
not to see or hear anything;

B5 On April 15, 2009, Coworker 1 proceeded to laugh at Complainant, who told
Coworker 1 that he did not appreciate him laughing and snickering at him.
Coworker 1 replied, “You should not be so sensitive.” Complainant had previously
alleged sexual harassment against Coworker 1;3

B6 On or about April 15, 2009, Coworker 3, Complainant’s office-mate, in a
conversation with Complainant about a movie, said, “Sometimes a person does
have doubt.” According to Complainant, in context with their conversation, she
was accusing Complainant of being a pedophile;

B7 In July 2009, Coworker 3 and Coworker 4 were visiting each other. Coworker 4
commented, “Look, [Complainant’s] here.” Complainant asked Coworker 4 if
Coworker 3 bothered to mention that he works through lunches and on the
weekends. Coworker 3 replied, “See, I told you he’s paranoid;”

B8 On August 3, 2009, the Chief of Clinical Support Service walked over to Coworker
7’s office, and they began gossiping about and laughing at Complainant. The Chief
of Clinical Support Service commented, “He had that look on his face,” referring
to Complainant. Coworker 7 then commented about the smell in the office, and the
Chief of Clinical Support Service said, “Yes, he caught a whiff of that;”

B9 On August 7, 2009, in a video-teleconference meeting with Coworker 3, the sound
was distorted for approximately 15 minutes, which Complainant felt was done
intentionally as a conspiracy to psychologically torment him;

B10 On August 7, 2009, Complainant (who has an office by himself) was called by
Coworker 5 with a general question. Minutes later the air vent began to rattle loudly
and the air came out a lot harder than normal, and Complainant suddenly became
very sleepy. Complainant feared for his safety and left work early;

B11 On December 4, 2009, the Hospital Operator made the comment to Complainant
and Coworker 3, that she was “trouble #1” and Complainant was “trouble #2;”

3 Complainant alleged that Coworker 1 made a comment about Complainant being on the “DL” or
“down low,” meaning that he was keeping his homosexuality a secret. Coworker 1 denied making
the statement and testified that he was speaking to another coworker about the Dalai Lama, who
they referred to as “DL.” Hearing 2 Transcript, at pg. 332.
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B12 On December 4, 2009, Coworker 3 and Coworker 6 inquired if Complainant
wanted to be in their play. Coworker 3 looked at Complainant and said, “You can
play the slut;”

B13 On December 7, 2009, in a condescending voice, the Chief of Social Work
commented that Complainant looked depressed. Coworker 7 then proceeded to
question Complainant in the manner that he questions suicidal veterans. Coworker
7 then ended the conversation with the sarcastic statement that Complainant knows
“all the right things to say”;

B14 On December 10, 2009, Coworker 3 and Coworker 1 discussed the comedy movie
“Team America” commenting on a scene where the puppets “eat each other’s shit.”
Coworker 1 then talked about a character on the television show South Park.
Complainant felt that Coworker 3 and Coworker 1 were implying that he was into
“scat” (eating feces);

B15 In January 2010, the Director of the Domiciliary (DD), allegedly sent Complainant
an electronic mail message reminding him about the monthly Suicide Flag List.
Complainant asserts that the subject line read “Suicide Fag List”;

B16 On February 2, 2010, Coworker 7 said something to Complainant like, “You should
feel free to come in if you ever need to vent or to check anything out like the patients
do, since I think of you like a patient”;

B17 On April 6, 2010, Coworker 7 allegedly said loudly to Coworker 9, “This guy is
crazy as hell,” referring to Complainant;

B18 On April 15, 2010, Coworker 7 was on the telephone, and allegedly said, regarding
Complainant, “We’re not buying him off. He’s sitting over there right now”;

B19 On April 15, 2010, Coworker 7 commented that if President Obama succeeds in
changing the “Don’t ask, don’t tell” policy in the military that “there would end up
being more accidents in the field that really aren’t accidents.” He then told the story
of a tire jack slipping and crushing a military supervisor. Coworker 7 then said, to
Complainant, “I’d hate for a tire to fall on you”;

B20 On May 14, 2010, a medical social worker (MSW) called Complainant using a
high-pitched voice. Complainant asserts that it was clear that MSW was trying to
“push his buttons” about being gay;

B21 On May 14, 2010, Coworker 7 allegedly said to Complainant, “Have a good
weekend, and go get a social life.” After Complainant replied, Coworker 7
allegedly said, “But you can have double the fun” (meaning that Complainant could
have sex with men, women, or three-way sex);
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B22 On May 18, 2010, Coworker 8 said loudly to Complainant, “[Complainant] is here
to say vicious things about people”;

B23 On May 18, 2010, Coworker 9 asked, “So, we can kill him then?” (referring to
Complainant);

B24 On May 19, 2010, Coworker 7 came into Complainant’s office and said, “I have
now learned that I have been accused of something else.” Coworker 7 also said, “I
sit over there being crazy and you sit here being crazy”;

B25 On May 26, 2010, Coworker 7 said that the Chief of the Clinical Support Service
gave him the go ahead, but to wait until Friday. Complainant did not know if they
were plotting to kill him. Complainant feared for his life and reported the incident;

B26 On June 1, 2010, Coworker 7 was talking loudly on the phone, and asked the person
on the other end if he was wearing a dress and high heels that day. When the call
ended, he said, “So, you’re having a good day even though you’re not wearing a
dress and high heels.” He then said, “Talk to you later. Have a good day, guy”; and

B27 On June 4, 2010, Complainant was ordered and pressured by CS and CMH, a
Psychiatrist, to take a mental fitness-for-duty examination prompted by concerns
raised by a Veterans Affairs Police detective. Complainant alleged that he was
denied union representation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing.

On June 29, 2011, the AJ (AJ1) dismissed claims B1-9, 11, 12, 15, 18, and 19, because
Complainant alleged discrimination based on sexual orientation alone, and not disability or
reprisal, for those claims.4 AJ1 conducted a hearing on the remaining claims, and found that the

4 AJ1 dismissed the claims for failure to state a claim under 29 C.F.R §1614.103 and
§1614.107(a)(1), stating that the Commission did not have jurisdiction for discrimination claims
based on sexual orientation. Pursuant to an internal Agency policy, it issued a final decision on
these claims of discrimination based on sexual orientation. We note, however, that the Commission
does have jurisdiction over sexual orientation discrimination claims pursuant to the Commission’s
finding in Baldwin v. Dep’t of Transp., which held that a claim of sexual orientation discrimination
is a claim of sex discrimination, and therefore covered under Title VII and properly processed
under the 29 C.F.R. Part 1614 process for EEO complaints. Baldwin v. Dep’t of Transp., EEOC
Appeal No. 0120133080 (July 15, 2015).

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Agency articulated legitimate, nondiscriminatory reasons for its action because the management
officials had a reasonable, objective belief that Complainant presented a direct threat to patients.
AJ1 also determined that Complainant had not shown that the reasons were pretext for
discrimination based on disability or reprisal for his EEO activity. With regards to the harassment
claim, AJ1 found that there was no evidence to support that incidents B10, 14, 17, 23, 24, or 25
occurred. Additionally, AJ1 found that while incidents B13, 16, 20, 21, 22 and 26 may have
occurred, they were not based on Complainant’s perceived disability or protected activity. AJ1
concluded by finding in favor of the Agency, which issued a final order fully implementing AJ1’s
decision. Complainant appealed the Agency’s final order.

In the appellate decision for Claude S. v. Department of Veterans Affairs, EEOC Appeal No.
0120120387 (January 28, 2015), the Commission noted that Title VII’s prohibition of
discrimination on the basis of sex includes discrimination because an individual fails to conform
to gender-based expectations, stereotypical or otherwise. Citing Macy v. Dep’t of Justice, EEOC
Appeal No. 0120120821 (April 20, 2012). In this case, we found that Complainant alleged a viable
claim of sex discrimination. The Commission vacated the Agency’s final order and remanded the
entire complaint back to the Agency for further processing.

A different AJ (AJ2) held a hearing on August 24-26, 2016, to hear Complainant’s sex
discrimination claims based on his sexual orientation. AJ2 issued a bench decision on August 31,
2016, which was finalized on September 15, 2016.

For claim A1, AJ2 found that the Agency’s decision to have Complainant take a mental fitness-
for-duty examination was not based on his sexual orientation. Rather, AJ2 found the Agency’s
decision to be reasonable under the circumstances because Complainant alleged that his coworkers
were making death threats against him, and that the FBI had installed listening devices in his home.
AJ2 also found with respect to claim A2 that Complainant was given an opportunity to contact the
union, but that the union declined to participate in his case. AJ2 determined that Complainant did
not proffer evidence showing that the Agency’s articulated reasons were pretext for discrimination
on any basis. AJ2 concluded that the Agency did not discriminate against Complainant based on
his sexual orientation when it instructed him to undergo a mental fitness-for-duty examination, or
when he was denied union representation.

With regards to Complainant’s allegation that he was subjected to harassment based on his sexual
orientation, AJ2 found that the record evidence in this case was insufficient to find that many of
the incidents occurred as alleged. For example, AJ2 found that Complainant overheard his
coworkers’ conversations, which was insufficient to conclude that the conversations were about
Complainant, or to conclude that the conversations were done to harass him because of his sexual
orientation. AJ2 determined that, even assuming that all of the complained of incidents occurred
as alleged, the comments were not made based on Complainant’s sexual orientation, except for
claim B20. AJ2 determined that MSW was “trying to push Complainant’s buttons about being
gay,” but that this one-time incident did not meet the definition of harassment.

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AJ2 concluded that Complainant had not shown that he was subjected to a hostile work
environment based on his sexual orientation. The Agency subsequently issued a final order
adopting AJ2’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

Complainant filed the instant appeal and submitted a statement in support of his appeal on January
19, 2017.5 The Agency did not file a response to Complainant’s appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s witnesses committed perjury, and that AJ2 was
biased in favor of the Agency. Complainant alleges that AJ2 found the Agency’s witnesses to be
“highly credible,” which shows bias in favor of the Agency. Complainant also notes that he is
appealing the earlier decision finding no discrimination based on reprisal and disability, issued by
AJ1 on August 8, 2011. Complainant also argues that AJ1 was biased.6 In his statements in support
of his appeals, Complainant provided extensive rebuttal statements to the Administrative Judges’
determinations in their decisions.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.

ANALYSIS AND FINDINGS

As an initial matter, we note that Complainant’s allegations of discrimination based on disability
and reprisal were not addressed on the merits in Complainant’s earlier appeal, EEOC Appeal No.
0120120387, because the entire case was remanded back to the Agency for further processing.
Complainant notes that these claims are still before the Commission, and accordingly, we will
address Complainant’s discrimination claims based on disability and reprisal, in addition to sex,
in the instant appeal. Additionally, we affirm the Agency’s dismissal of claim B3 as a discrete
claim of sex discrimination due to its untimeliness.

5 Complainant requested, and was granted, an extension to file his statement through January 19,
2017.

6 The record also contains Complainant’s July 1, 2011, Motion for Recusal of the AJ, in which
Complainant accused AJ1 of bias. That motion was denied.
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We find that Complainant has not shown that either AJ was biased towards the Agency.
Complainant alleged that the Administrative Judges’ determinations that the Agency’s witnesses
were more credible than Complainant were “unbalanced.” However, Complainant has not
presented any affidavits, declarations, or even unsworn statements from witnesses other than
himself, or any documents, establishing bias. Upon review of the record of evidence, we do not
find that the Administrative Judges inappropriately treated the Agency more favorably than
Complainant.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap.
9, at § VI.B. (Aug. 5, 2015). On appeal, Complainant argues that many of the Agency’s witnesses
committed perjury during the hearing. We note that Complainant repeatedly alleged that the
witnesses were untruthful throughout the hearings, and that the Administrative Judges took his
concerns into consideration when making their credibility determinations. As Complainant noted,
the Administrative Judges determined that the Agency’s witnesses were credible; and we find that
Complainant has not presented any evidence showing that they committed perjury.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

In this case, we find that the Administrative Judges’ determinations that the Agency did not
discriminate against Complainant based on disability, reprisal, or sex when it ordered him to
undergo a mental fitness-for-duty exam, and when he was denied union representation, are
supported by substantial evidence in the record.

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Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
disability, reprisal, and sex, the Agency articulated legitimate, nondiscriminatory reasons for its
action. CS testified that he was concerned that Complainant may harm himself, or another, based
on Complainant’s allegations that people were conspiring to kill him, and that the Agency paid a
patient to spy on him. Hearing 1 Transcript, Vol. 5, pgs. 43-44. CS also noted that Complainant
alleged that someone pumped a gas through the air-conditioning system. Hearing 2 Transcript, at
pg. 398. CMH testified that he was concerned that Complainant felt that some of his patients were
malicious toward him. Hearing 2 Transcript, at pg. 670. CMH added that they met with
Complainant to offer help. Hearing 1 Transcript, Vol. 5, at pg. 95. CS also stated that when they
met with Complainant, he stated that he wanted a union representative in the meeting, and they
waited for him to contact the union. CS stated that Complainant spoke with the executive vice-
president of the union, who refused to come to the meeting. Hearing 1 Transcript, Vol. 5, pgs. 52-
53.

We find that Complainant has not shown that these reasons were pretext for discrimination.
Complainant makes bare assertions that the management officials were untruthful or that their
actions were discriminatory. Accordingly, we find that Complainant has not shown that the
Agency discriminated against him based on disability, reprisal, or sexual orientation when it
ordered him to undergo a mental fitness for duty examination, and when he was denied union
representation.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In assessing whether the Complainant has set forth an actionable claim of harassment, the conduct
at issue must be viewed in the context of the totality of the circumstances, considering, inter alia,
the nature and frequency of offensive encounters and the span of time over which the encounters
occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual
Harassment, N-915-050, No. 137 (March 19, 1990); Cobb v. Dep’t of the Treasury, EEOC Request
No. 05970077 (Mar. 13, 1997). Generally, “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Kozak v. U.S. Postal Service, EEOC Request No. 01A63021 (Aug.
23, 2006); Battle v. U.S. Postal Service, EEOC Request No. 0120083387 (Feb. 4, 2010).
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Such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person
would find [the work environment to be] hostile or abusive, and … that the victim in fact did
perceive to be so.” Id.

We find that substantial evidence in the record supports the Administrative Judges’ determinations
that Complainant has not shown that he was subjected to a hostile work environment based on
disability, reprisal, or sex. As noted by the Administrative Judges, incidents B1-14, 16-19, 21-25,
and 27, did not occur as alleged, or were not based on Complainant’s protected categories. We
note that AJ2 inadvertently omitted her analysis for incident B26, but that AJ1 found that B26 was
not based on Complainant’s perceived disability or reprisal for his EEO activity. For the purposes
of this decision only, we will assume that incident B26 was due to Complainant’s sex.

Only incidents B15 and B20, can be construed as being related to Complainant’s sex. However,
we note that incident B15 was explained as, at most, a typo, and was not an intentional use of the
epithet “fag.”7 Even assuming that incidents B15, B20, and B26, were due to Complainant’s sexual
orientation, we do not find that they rise to the level of severe or pervasive so as to create a hostile
work environment. In looking at the totality of the circumstances, we find that the record contains
substantial evidence showing that the Agency did not subject Complainant to harassment based on
disability, reprisal, or sex.8

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final orders adopting the Administrative
Judges’ findings that the Agency did not discriminate against, nor subject Complainant to a hostile
work environment, based on disability, reprisal, or sex.

7 Complainant testified that he deleted this email, and despite many attempts by the Agency to find
a copy, it was not recovered. Additionally, DD denied sending such an email, and only concedes
that if he did send it, he made a typo. Hearing 1 Transcript, at pgs. 716, 738.

8 We note that the Agency removed Complainant on October 29, 2010, for the inability to perform
the clinical duties of his position, based, in part, on the results of the fitness-for-duty examination.
Complainant appealed his removal to the Merit Systems Protection Board (MSPB), claiming that
he had been discriminated against based on sex (sexual orientation), disability, and reprisal. The
MSPB issued a Remand Order reversing Complainant’s removal, finding that that the Agency did
not have the authority to order him to undergo the fitness-for-duty examination, but that he did not
prove his discrimination claim based on sex (sexual orientation). (By the time of the MSPB’s
decision, Complainant’s disability and reprisal claims were no longer before the Board).
Complainant filed a Petition for Review with the Commission and in EEOC Petition No.
0320140050 (March 22, 2016), we found that Complainant did not establish that the decision to
remove him was based on his sex (sexual orientation).
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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. 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.
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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 2, 2019
Date