Crysta T.v.Dep't of Agric.

Equal Employment Opportunity Commission

May 17, 2017

EEOC Appeal No. 0120151930 (E.E.O.C. May. 17, 2017)

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

Crysta T.,
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120151930

Hearing No. 550-2014-00211X

Agency No. ARS-2013-00571

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s April 10, 2015, final order 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. The Commission’s
review is de novo. For the following reasons, the Commission MODIFIES the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Research Chemist
at the Agency’s Pacific West Area at the University of California in Davis, California.
Complainant experiences complications from hemianopia and foot deformities. The office was
made up of two research groups: the Obesity Unit and the Immunity and Disease Prevention
Unit. Each unit had 12 research scientists, and Complainant worked in the Immunity and
Disease Prevention Unit. The research scientists were supported by support scientists who acted
as laboratory managers by performing such duties as purchasing supplies, keeping inventory and

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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safety records, and supervising the students and lab volunteers. Complainant’s support scientist
retired in April 2012, but the Agency did not immediately hire a replacement. In March 2013,
the Agency’s Administrator informed employees that, due to budget cuts, it would be eliminating
some vacant positions and making other reductions. Since the support scientist position which
reported to Complainant was vacant, it was eliminated by the Pacific West Area Director from
the staffing plan.

Promotions are granted through the Research Position Evaluation System (RPES). An outside
committee reviews the applications using four factors: research assignment; supervisory controls;
guidelines and originality; and contributions, impact, and stature. The panel consists of scientific
peers from across the Agency. One panel member contacts an applicant’s supervisor to discuss
the candidate, but the supervisor is not allowed to express an opinion as to how the committee
should decide. On March 27, 2013, a panel evaluated Complainant’s application for a grade
level promotion based upon the case writeup, the in-depth reviewer’s report, the cited standards,
and related Agency policies and procedures. Each panelist evaluated and scored the case prior to
the meeting. After hearing the in-depth reviewer’s report, followed by open discussion, the
panel arrived at the consensus score and resulting classification decision. Complainant received
a total point score of 40, which indicated that her current GS-14 grade was the proper grade.
Complainant believes that her supervisor (S1) did not give her a good recommendation;
therefore, she was rated as “retain in grade.”

At various points since 1998, Complainant claims that the Agency denied her requests for
reasonable accommodation. Complainant asked for two days of telework per week, but was only
granted one day of telework in 2011. S1 stated that he denied Complainant’s request for two
days of telework because Complainant was required to oversee the work of her part-time support
scientist and several graduate students, as well as a new externally-funded research grant for
which she was responsible. Complainant acknowledged that supervising a series of temporary
employees required more of her time than permanent employees and that this was “not a trivial
problem.” Nonetheless, S1 granted Complainant one day of telework, and Complainant was the
only scientist who teleworked one day a week.

Complainant alleged that S1 and her second-level supervisor (S2) harassed her on several
occasions by stating or implying that she was lazy or that she should quit complaining and get
her work done. Complainant claimed that S1 threatened to cancel her vacation in September
2013. Complainant further alleged that she and S1 had disputes regarding her lab support needs
and that S1 “scapegoated and disrespected” her regarding a research grant and criticized her
unit’s five-year research plan.

On July 10, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of sex (female),
disability, and age (58) when:

1. On March 17, 2013, the Support Scientist position assigned to her was removed,
which compromised her ability to meet the “Supervisory Controls” factor for her
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performance evaluation under the RPES and required her to perform the duties of
that position in addition to her official duties;

2. On or about April 4, 2013, she was issued a “Retaining” rating in RPES, such that
her grade level promotion was denied;

3. On or about July 10, 2013, her request for reasonable accommodation was denied;
and

4. Since March 17, 2013, she has been subjected to various acts of harassment, in
that her supervisors have issued electronic mails and made comments implying
that she was lazy and attempting to do as little work as possible.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ granted summary judgment in favor of the Agency and issued a
decision without a hearing on February 19, 2015.

In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. With respect to claim (1), the Agency explained that the Support Scientist
position that had been assigned to Complainant was not filled because of the Agency’s reduced
budget following the sequestration of funds by Congress. Complainant’s organization was
required to reduce its budget by over $600,000 due to the sequestration and recession of funds by
Congress. The AJ noted that Complainant acknowledged that other research scientists “had their
support scientist positions delayed by the hiring freeze then closed during the sequester.” The AJ
added that Complainant’s principal concerns appeared to be the manner in which existing
resources had been allocated and that a scientist in the Obesity Unit had access to more than one
support scientist. The AJ found that Complainant had presented no evidence rebutting the
Agency’s explanation that it was within the Director’s authority to determine how the Agency’s
discretionary funds would be allocated, including improving the financial position of the Obesity
Unit. Similarly, the AJ determined that there was no evidence rebutting the Agency’s claim that
it was embarking on a five-year plan that would result in support staff being allocated to projects
where they were needed as opposed to the former practice of exclusively assigning them to
individual senior scientists.

Regarding claim (2), the AJ determined that Complainant produced no evidence suggesting that
the Agency panel’s evaluation of her 2013 RPES application was discriminatory. Complainant’s
allegation appeared to be that S2 “lied about the facts regarding the loss of [her] support
scientist.” The AJ found that even if there were facts to support this vague assertion, there was
no evidence that the lack of a support scientist impacted her not reaching the GS-15 level, as
Complainant’s national and international reputation and expertise were the defining factors
between the GS-14 and GS-15 level.

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As to claim (3), S1 stated that he denied Complainant’s 2013 request to telework two days a
week because her unit’s work was “interactive, which is best done” in her laboratory where
Complainant and her colleagues could “oversee activities by support staff in our labs and other
areas.” The AJ found that even assuming that Complainant intended her telework request to be a
reasonable accommodation request, she failed to show how such a request would allow her to
perform the essential functions of her job when such an arrangement would keep her from
performing the essential function of supervising lab personnel. Complainant acknowledged that
supervising temporary employees was not a trivial concern in her workplace environment.
Furthermore, Complainant was the only scientist in her facility who was given the opportunity to
telework on a regular basis for any reason.

Finally, as to Complainant’s harassment claim, that AJ determined that the alleged incidents
were insufficiently severe or pervasive to establish a hostile work environment. The AJ added
that no reasonable person could view Complainant’s disputes with S1 about resource allocation
estimates as creating an abusive or intimidating environment. Similarly, the feedback and
directions from Complainant’s superiors to her about job-related matters such as her work on the
five-year plan or the need to complete work before leave is taken when on deadline were routine
supervisory actions. The AJ further found that there was no evidence that the alleged incidents
were based on discriminatory animus.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination
or a hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ made important errors in her case and failed to
consider the evidence in the light most favorable to her. Complainant claims that she showed
that Agency officials’ statements were untrue. Further, Complainant alleges that the Agency
ignored her request for reasonable accommodation. Complainant argues that she showed that the
Agency treated her less favorably than other employees who did not have a disability.
Accordingly, Complainant requests that the Commission reverse the final order. The Agency
submitted a brief in opposition to Complainant’s appeal in which it urged the Commission to
affirm the AJ’s decision and its final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.
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Order to Show Cause

As a preliminary matter, the Commission notes that in a letter dated May 28, 2015, the
Commission notified the Agency that Complainant had filed the instant appeal and that the
Agency must submit the complaint file to the Commission within 30 calendar days of receiving
the letter. Additionally, the May 28, 2015, letter advised the Agency that failure to submit the
entire complaint file within the specified time frame could result in the Commission drawing an
adverse inference. The Agency failed to submit the requested complaint file within the required
time frame.

On February 24, 2017, the Commission issued a notice to show cause why sanctions should not
be issued against the Agency for failing to submit the complete complaint file. The Agency was
notified that if it failed to submit the entire record in 20 days or show good cause why it could
not do so, the Commission could issue a decision in favor of Complainant or take such other
action as appropriate. The Agency again failed to timely submit the requested complaint file or
otherwise show cause why it could not do so. The Agency subsequently submitted the complete
complaint file on May 4, 2017, with no accompanying explanation for its delay.

The Commission’s regulations are perfectly clear with respect to the Agency’s obligation to
submit the complete record and to do so in a timely manner. “The agency must submit the
complaint file to the [Commission] within 30 days of initial notification that the complainant has
filed an appeal.” 29 C.F.R. § 1614.403(e). Compliance with this timeframe is not optional.
Further, “[a]gencies should develop internal procedures that will ensure the prompt submission
of complaint files upon . . . notice that a complainant has filed an appeal.” Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § IV.G
(Aug. 5, 2015). The Agency’s tardiness undermined the integrity and effectiveness of the EEO
process. As a result, the Commission determines that the imposition of sanctions is warranted.

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the
non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv.,
EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and
provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be
tailored to each situation by applying the least severe sanction necessary to respond to a party’s
failure to show good cause for its actions and to equitably remedy the opposing party. Royal v.
Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are
considered in tailoring a sanction and determining if a particular sanction is warranted: (1) the
extent and nature of the non-compliance, and the justification presented by the non-complying
party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the
consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO
process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007).

The Commission notes that the Agency's repeated and continued failure to timely comply with
the entirety of the 29 C.F.R. Part 1614 regulations is inexplicable and inexcusable. The
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Commission’s regulations require agency action in a timely manner at many points in the EEO
process. Compliance with these timeframes is not optional, and as the Commission stated in
Royal v. Dep’t of Veterans Affairs, supra, “the Commission has the inherent power to protect its
administrative process from abuse by either party and must insure that agencies, as well as
complainants, abide by its regulations.” The Commission further noted that when weighing the
factors pertinent to tailoring an appropriate sanction, the effect on the integrity of the EEO
process, and protecting that process, is of “paramount” importance to the “Commission's ability
to carry out its charge of eradicating discrimination in the federal sector.”

Based on the specific circumstances of this case, the Commission finds that the most appropriate
sanction to address the Agency’s conduct is to order the Agency to: (1) post a notice at its Office
of Adjudication in Washington, D.C. regarding its failure to comply with the Commission’s
regulatory timeframes and orders; (2) provide training to its EEO personnel who failed to comply
with the Commission’s regulatory timeframes and orders; and (3) consider taking disciplinary
action against these EEO personnel. The Commission’s decision to sanction the Agency in this
matter will effectively emphasize to the Agency the need to comply with Commission orders in a
timely manner. The Agency should consider itself on notice that future noncompliance with our
regulations could subject it to the imposition of more stringent sanctions. See Talahongva-
Adams v. Dep’t of the Interior, EEOC Appeal No. 0120081694 (May 28, 2010).

Hostile Work Environment

Turning to the merits of the instant case, to establish a claim of harassment a complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in
the form of unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on her statutorily protected class; (4) the harassment
affected a term or condition of employment and/or had the purpose or effect of unreasonably
interfering with the work environment and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents 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, to prove her harassment claim, Complainant must establish that she was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, Complainant failed to show that the Agency's actions were
based on discriminatory animus.
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The record reflects that the alleged incidents were more likely the result of routine supervision
and general workplace disputes and tribulations. For example, as to claim (1), the Director stated
that Complainant’s Support Scientist had retired and, because of budget cuts associated with
sequestration and rescissions, he determined that it was necessary to abolish any vacant position
in the research unit to maintain an acceptable level of operating funds. ROI, at 72. As a result,
during the Fiscal Year 2013 resource management planning process, management removed
Complainant’s Support Scientist position. Id. S1 and S2 added that the abolishment of the
Support Scientist position would not have affected her RPES review and she was not required to
perform additional duties other than such tasks as ordering supplies or working on the chemical
inventory in her lab for a short time. Id. at 55, 66. S2 stated that Complainant has now been
provided with assistance for “lab duties” from two Support Scientists. Id. at 66. S2 clarified that
“Supervisory Controls” refers to what supervisory controls Complainant was under, not who she
supervised. Id. at 66.

Regarding claim (2), S1 affirmed that Complainant received a “remain in grade” RPES
evaluation, which was the most common outcome for scientists. ROI, at 56. S1 noted that he
was prohibited from making specific recommendations about the decision to be made, and
simply answered questions from the RPES panel member about the impact of Complainant’s
research and her role in conducting the research. Id. S2 confirmed that it is difficult to rise to a
GS-15 because it required evidence of both national and international recognition, stature, and
impact. Id. at 66. The panel considered Complainant’s application and concluded in its
Research Position Evaluation Report that Complainant met “Level D” in each factor; however,
she did not yet reach “Level E.” Id. at 136-39. Accordingly, the panel determined that
Complainant’s position was properly classified at the GS-14 level. Id.

Finally, with regard to her claim that her supervisors made comments implying she was lazy or
attempting to do as little work as possible, S1 denied making any such comments. S1 stated that
Complainant objected to her unit receiving some criticism during the process of developing the
office’s five-year research proposals. ROI, at 56. S1 stated that he simply expressed his view as
her supervisor that the quality and quantity of the proposed research could be improved and that
she needed to do more work on developing her research protocol. Id.

Construing the evidence in the light most favorable to Complainant, the Commission agrees with
the AJ that Complainant has not shown she was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable fact
finder could conclude that the Agency’s explanation was pretext for discrimination. As a result,
the Commission finds no basis to disturb the AJ's summary judgment decision finding that
Complainant was not subjected to discrimination or a hostile work environment as alleged.

Denial of Reasonable Accommodation

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The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals.
See 29 C.F.R. § 1630. In order to establish that the Agency denied Complainant a reasonable
accommodation, Complainant must show that: (1) she is an individual with a disability, as
defined by 29 C.F.R. § 1630.2(g); (2) she 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
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). Under the
Commission's regulations, an agency is required to make reasonable accommodation to the
known physical and mental limitations of a qualified individual with a disability unless the
agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§
1630.2(0) and (p). The Commission will assume without deciding (for the purposes of this
decision) that Complainant is a qualified individual with a disability.

Here, Complainant states that she experiences complications from having a club foot and weak
ankles and being pigeon-toed. Complainant further contends that she cannot see from the left
side of each eye, has no binocular vision, and only 30 percent field of vision. Additionally,
Complainant states she has mild speech issues, asthma, and chronic bronchitis. ROI, at 45.
Complainant alleges that the Agency has denied her at least two days of telework a week as a
reasonable accommodation dating back to 1998. Complainant claims that Agency management
approved her request in 2011, but for just one day of telework per week. Id. at 48. The record
indicates that Complainant requested to telework one to two days a week in 1999, but the request
was initially denied by the then-Director. Id. at 272. Nonetheless, Complainant teleworked one
to two days a week without approval and without being disciplined. Id.

In 2004, Complainant submitted a request for three to four days of telework. ROI, at 268-69.
Complainant noted that she already worked from home on a regular basis, but that the request
was related to her difficulty in “moving from building to building” at the University of California
due to her vision loss. Complainant cited the number of bikes and bikers on campus and several
times where she was almost run over by bikers. Additionally, Complainant noted the smog and
pollen in Davis, California. S2 informed Complainant that her request for additional telework
was denied because she would not be able to perform all of her essential duties while
teleworking, including adequate supervision of technician and graduate students and acting as
Lead Scientist for her Current Research Information System project and collaborating with other
scientists. Id. at 272-73. In addition, S2 noted that the office would be moving to a new building
on the edge of campus and would be remote from bicycles. Id. S2 offered Complainant one day
of telework or to search for other vacant positions for which she was qualified for reassignment.
Id. There is no evidence in the record showing that Complainant responded to the Agency’s
offer, and she continued to telework one day per week.

In July 2013, Complainant requested an additional day of telework. ROI, at 303. S1 responded
that Complainant needed to oversee activities by support staff in the labs and other areas of the
Center. Id. S1 indicated that he would continue to approve one day of telework, but not two. Id.
Additionally, S1 affirmed that he has allowed Complainant to work from home as needed due to
illness, interruption of her public transportation, and other similar circumstances. Id. at 60.
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The Commission finds that Complainant has not established that the Agency failed to provide
her with a reasonable accommodation. Here, Complainant requested at least two days per week
of telework, while management granted her one day of telework and additional days as needed.
The Commission notes that the protected individual is entitled to a reasonable accommodation;
she is not necessarily entitled to the accommodation of choice. See Castaneda v. U.S. Postal
Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). The employer may choose among
reasonable accommodations so long as the chosen accommodation is effective. U.S. Airways v.
Barnett, 533 U.S. 391, 400 (2002). Complainant has presented no evidence that the provided
accommodation was ineffective. Accordingly, the Commission finds that Complainant failed to
prove that the Agency denied her reasonable accommodation in violation of the Rehabilitation
Act.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Commission AFFIRMS the Agency's finding of no
discrimination. The Agency’s final order, however, is MODIFIED in accordance with this
decision and the ORDER below.

ORDER

Unless otherwise indicated, the Agency is ordered to complete the following remedial actions
within sixty (60) days of the date this decision is issued:

1. The Agency shall post a notice in accordance with the paragraph below.

2. The Agency shall provide training to the EEO management officials regarding their
responsibilities concerning case processing under 29 C.F.R. Part 1614.

3. The Agency shall consider taking appropriate disciplinary action against the
management officials responsible for case processing under 29 C.F.R. Part 1614. The
Commission does not consider training to be disciplinary action. The Agency shall
report its decision to the Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not take
disciplinary action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left the Agency's
employ, the agency shall furnish documentation-of their departure date(s).

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1016)
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The Agency is ordered to post at its Office of Adjudication facility located in Washington, D.C.
copies of the attached notice. Copies of the notice, after being signed by the Agency's duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within 10 calendar days of the expiration of the posting period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The
Agency’s report must contain supporting documentation, and the Agency must send a copy of all
submissions to the Complainant. If the Agency does not comply with the Commission’s order,
the Complainant may petition the Commission for enforcement of the order. 29 C.F.R.
§ 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance
with the Commission’s order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the
Complainant has the right to file a civil action on the underlying complaint in accordance with
the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and
1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant
files a civil action, the administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. § 1614.409.

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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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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department in which you work. If you file a request to reconsider and also file a civil action,
filing a civil action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 17, 2017
Date