Josephine S., Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jul 26, 2017

0120151324 (E.E.O.C. Jul. 26, 2017)

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

Josephine S.,
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120151324

Hearing No. 570-2012-00994X

Agency No. ARHQOSA11SEP03805

DECISION

The Commission accepts Complainant’s appeal2 from the April 16, 2015, final Agency decision
(FAD) 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., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963 (EPA), as amended, 29
U.S.C. § 206(d) et seq. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the FAD.

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.

2 Complainant filed her February 28, 2015, appeal following her receipt of the Equal
Employment Opportunity Commission Administrative Judge’s (AJ) December 5, 2014, Order of
Dismissal of her hearing request. The Agency did not issue its FAD until April 6, 2015.
Although the appeal was initially premature at the time of the filing, the Commission finds that it
is currently ripe for review.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Training Technician
at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. In
November or December 2010, Complainant’s first-level supervisor (S1) recommended to her
second-level supervisor (S2) that Complainant be promoted from her GS-7 position based on
accretion of duties. S2 supported promoting Complainant and instructed S1 to review
Complainant’s position description to determine if it was current with her duties. S1 later
learned from the Human Resources Specialist (HRS-1) that Complainant could not be promoted
to GS-8 based on accretion of duties, but could be considered for promotion to a GS-9 position.
In December 2010, S1 relayed that information to Complainant.

In January or February 2011, HRS-1 informed S1 that she had made a mistake and that an
accretion of duties promotion from GS-7 to GS-8 could occur, but a promotion to GS-9 could not
because the GS-9 position description included work that Complainant was projected to do rather
than the duties Complainant actually performed. S1 informed Complainant of the mistake. S1
then re-worked Complainant’s position description to reflect her current duties and re-submitted
it. Complainant’s position was subsequently upgraded to the GS-8 level.

Around March 2010, S2 learned that the facility needed a Quality Assurance function to support
school accreditation. S2 developed a position description for the position and it was graded at
the GS-9 level. Around February 2011, the Agency posted a vacancy announcement for the GS-
9 Training Technician (Quality Assurance Officer) position as a not-to-exceed four-year term
appointment. Complainant knew of the vacancy announcement, but did not apply.

In April 2011, the Agency was under a hiring freeze. Complainant’s planned promotion and the
Quality Assurance Officer position were placed on hold. In June 2011, when the hiring freeze
was lifted, Complainant was non-competitively promoted to GS-8, Step 9 with a salary of
$54,412. The selectee (CW1) for the Quality Assurance Officer position was hired on June 20,
2011, at the GS-9, Step 1 level with a salary of $47,448.

In June 2012, Complainant had nearly exhausted all of her accrued leave. Complainant
requested 30 days of paid administrative leave from the Commanding General, which was
denied. Complainant was placed on leave without pay (LWOP) and offered advanced sick leave
on the condition that she submit medical documentation in support of her absence. On June 18,
2012, Complainant exhausted all of her leave. On June 19, 2012, S2 left a message for
Complainant stating that they had not heard back from her or received any medical
documentation; therefore, he would have to change her LWOP to absence without leave
(AWOL). Complainant returned S2’s call and claimed that she would be sending him her
medical documentation and would be out for the remainder of the week. On June 21, 2012, S2
sent Complainant an AWOL letter, but Complainant’s medical documentation arrived the next
afternoon. Complainant was then placed on advanced sick leave status.

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On October 21, 2011 (and amended on June 22, 2012), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), sex (female), disability, age (55), and in
reprisal for prior protected EEO activity when:

1. On June 19, 2011, management non-competitively promoted her from Training
Technician, GS-1702-07 to Training Technician GS-1702-08. However, she
contends her supervisors promised her a promotion to the GS-09 level, and upon
inquiring, her supervisors gave her no clear explanation for not promoting her to a
GS-09;

2. On or about June 20, 2011, management appointed a White male to a GS-1702-09
position. Complainant contends he was assigned to perform the same or similar
duties as she but at a higher rate of pay. She further contends that management told
her that she had to get this new employee “up to speed”;

3. On August 9, 2011, Complainant became aware that her supervisors had placed her
non-competitive promotion to a GS-09 on hold and had reworked the submitted
position description and downgraded it to a GS-08. She asserts her supervisors
conspired against her promotion in favor of her White male counterpart based on
FOIA information she obtained;

4. On May 30, 2012, she became aware that the Executive Administrative Assistant and
a Training Technician were monitoring her work activities. She suspects they were
reporting their findings to her supervisors;

5. On June 18, 2012, management informed her that her leave was denied because she
had exhausted all her leave. Management told her that she would be charged leave
without pay (LWOP) if she did not report to work;

6. On June 20, 2012, management placed her on absent without leave (AWOL) after she
had submitted the proper documentation and leave request form to management;

7. On June 21, 2012, her supervisor told her during a conversation that she needed to
hand deliver her leave request so that “they could check her mental health status.”
She asked her supervisor about his statement and her supervisor told her to validate
her medical leave request; and

8. On June 21, 2012, her supervisor left a voice message for her that stated she was
being placed on AWOL after she had hand carried her leave request to her supervisor.

After an 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;
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however, the AJ assigned to the matter dismissed the hearing request after Complainant failed to
appear for the scheduled hearing. The AJ remanded the complaint to the Agency, and the
Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the alleged conduct was based on discriminatory or retaliatory animus. More
specifically, as to claims (1), (2), and (3), management learned that they would need a Quality
Assurance Officer position to ensure that the school would be accredited in March 2011.
Additionally, management wanted to find a way to promote Complainant. A position description
was drafted for Complainant which included some quality assurance duties that Complainant
could begin to assume since the Quality Assurance position was only temporary. The position
description was classified at the GS-9 level as was Complainant’s position description with the
additional duties. The Agency subsequently was subjected to a hiring freeze which prevented
management from being able to hire or promote anyone. HRS-1 prematurely and inappropriately
informed Complainant that management was attempting to promote her non-competitively while
it was still a proposed action. During the hiring freeze, management learned that HRS-1 had
provided them with incorrect information regarding their attempt to non-competitively promote
Complainant. Another Human Resources Specialist (HRS-2) informed management that to non-
competitively promote Complainant, her upgraded position description had to contain duties she
had been performing, but were not already identified in her existing position description. A
revised draft of Complainant’s position description containing the actual duties she performed
was submitted and was upgraded to the GS-8 level. As a result, Complainant was non-
competitively promoted on June 19, 2011.

HRS-2 further explained that the process of initiating the hiring action for the GS-9 Quality
Assurance Officer position began in December 2010, and went through the Delegated Examining
process. HRS-2 noted that Complainant could have applied for the position, but she may not
have met the one-year specialized experience at the GS-8 level or the education requirement.
CW1 was ultimately selected and hired on June 20, 2011, at the GS-9 level. The Agency
determined that there was no evidence to show that anyone ordered that Complainant not be
promoted to the GS-9 level, that Complainant had in fact been promoted to the GS-9 level, or
that Complainant was entitled to a non-competitive promotion to the GS-9 level. Regarding her
claim that management wanted her to get CW1 “up to speed,” S1 explained that since CW1 was
working in the same office as her, he wanted CW1 to learn some of the academic administrative
work that Complainant did so that when Complainant was not around, CW1 could fill in. S2
stated that he mentioned something to that effect based on how they do business and from a team
player sense of duty. Thus, the Agency found there was no evidence that management instructed
Complainant to train CW1 with respect to his major duties.

With respect to Complainant’s EPA claim alleged in claim (2), the Agency noted that
Complainant’s pay is higher than CW1’s as her annual salary effective June 19, 2011, was
$54,412 while CW1’s term appointment to the GS-9 position was $47,563. Further, the Agency
noted that Complainant and CW1 do not perform substantially equal work and their jobs do not
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involve equal skill, effort, or responsibility. The Agency found that 60 percent of Complainant’s
major duties as described in her position description are related to office automation while CW1
is primarily responsible for the evaluation and assessment of the Judge Advocate General’s
Noncommissioned Officer Academy’s student course work. CW1 is responsible for conducting
quality evaluation surveys, assessing and evaluating current training and safety practices,
providing suggestions to the Commandant with respect to improvements to ensure training is in
accord with higher-level guidance, independently managing two distinct learning courses
accessed daily by approximately 1,000 students, maintaining academic files for these courses,
and other duties as assigned. Complainant’s position description contains a similar description
of these duties; however, they fall within the 40% of her duties as listed on her position
description. The Agency concluded that Complainant’s EPA claim must fail.

As to claim (4), management officials denied ordering any employee to monitor Complainant.
S1 noted that Complainant claimed that someone was at her computer on one occasion; however,
the only way to access an employee’s computer files is through that employee’s Common Access
Card or by someone from the Information Technology office with administrative rights.
Additionally, the co-workers Complainant claimed were monitoring her denied doing so.

Finally, with regard to the leave issues alleged in claims (5) – (8), the Commanding General
stated that he received a packet from Complainant requesting 30 days of paid administrative
leave and stating that if she did not hear from him, she would assume her request was approved.
On June 11, 2012, the Captain informed Complainant of the Commanding General’s denial of
her request and told Complainant that she would need to take up her leave issues with her chain-
of-command. The Captain then met with S2 and other officials about the Complainant’s request.
The Captain left a message for Complainant informing her that she was out of leave and on
LWOP as of June 18, 2012, and she would need to go through her chain of command to request
an approved leave status. On June 19, 2012, S2 attempted to contact Complainant about her
leave situation, but left a message informing her that he would be changing her LWOP status to
AWOL because they had not heard back from her or received medical documentation in support
of her absence. Complainant called back and told S2 that she would be out the rest of the week
and would be sending in medical documentation. On June 21, 2012, after not receiving any
medical documentation, S2 sent Complainant an AWOL letter. Complainant’s medical
documentation arrived the next day and management attempted to contact her to let her know
that she was being placed on advanced sick leave. S2 acknowledged telling Complainant that he
was concerned about her health, but did not recall telling her that she needed to hand deliver her
leave request so “they could check her mental health status.”

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant challenges the AJ’s dismissal of her hearing request. Complainant
contends that she was stuck in traffic and claims that she was only given notice of 24 hours for
the hearing. Complainant claims her attorney provided her false information and abandoned her.
Complainant argues that numerous Agency officials harassed her and retaliated against her.
Complainant contends that they downgraded her promotion and placed her under surveillance as
retaliation. Additionally, Complainant raises new claims of retaliation. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The AJ’s Dismissal of Complainant’s Hearing Request

The Commission will first address Complainant’s contentions on appeal regarding the AJ’s
dismissal of her hearing request as a sanction for failure to appear for the hearing. The
Commission notes that Commission regulations and precedent provide AJs with broad discretion
in matters relating to the conduct of a hearing, including the authority to sanction a party for
failure, without good cause shown, to fully comply with an order. See 29 C.F.R. § 1614.109(e);
Equal Employment Opportunity Commission Management Directive 110 for 29 C.F.R. Part
1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). However, such sanctions must be tailored in each
case to appropriately address the underlying conduct of the party being sanctioned. A sanction
may be used to both deter the non-complying party from similar conduct in the future, as well as
to equitably remedy the opposing party.

Upon review, the Commission finds that the AJ did not abuse his discretion in dismissing
Complainant’s request for a hearing as a sanction for not appearing for the hearing. During the
hearing stage, Complainant was represented by an attorney. The record shows that the AJ’s
August 12, 2014 Scheduling Order informed the parties that the hearing would take place in
Washington, D.C., at 8:30 a.m. on a date to be later named. On September 9, 2014, the parties
attended a Pre-Hearing Conference in which the hearing was scheduled for November 3, 2014, in
Washington, D.C. Nonetheless, Complainant claims that she did not learn about the date of the
scheduled hearing until the day before the hearing. Complainant further claims that she
attempted to attend the hearing, but she was stuck in traffic. Complainant’s attorney was present
at the scheduled hearing. The AJ delayed the hearing for an hour to give Complainant more
time, but dismissed the hearing request after she did not appear. The record indicates that
Complainant later arrived almost five hours after the hearing was scheduled to begin.

The Commission finds that Complainant’s arguments on appeal are insufficient to find that the
AJ abused his discretion in remanding the matter to the Agency for a decision on the merits of
the complaint. Further, to the extent that Complainant is claiming ineffective assistance of
counsel, the Commission notes that when a complainant has voluntarily entrusted representation
to an attorney, she may not avoid the consequences of her choice by arguing that the attorney did
not perform the attorney’s duties in a competent manner. See Kennedy v. U.S. Postal Serv.,
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EEOC Request No. 05950157 (Aug. 10, 1995). The record is clear that Complainant was
notified through her attorney of the date, time, and location of the hearing and the possibilities of
sanctions for failure to appear for the hearing. The Commission further notes that a complainant
is responsible for proceeding with the complaint whether or not he or she has a designated
representative. 29 C.F.R. § 1614.605(e). Thus, the Commission finds that the AJ did not abuse
his discretion by dismissing Complainant’s hearing request given Complainant’s failure to
appear for the hearing.

Hostile Work Environment

Turning to the merits of the instant matter, 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 does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Here, Complainant asserted that based on her protected
classes, she was subjected to a hostile work environment based on several incidents where
Agency officials took actions that seemed adverse or disruptive to her. The Commission
concludes that the conduct alleged was insufficiently 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, there is no persuasive evidence in the record that discriminatory or retaliatory
animus played a role in any of the Agency’s actions. The record reflects that the alleged
incidents were more likely the result of general workplace disputes and tribulations. For
example, with respect to the claims related to her promotion alleged in claims (1) – (3), S1 stated
that he recommended that Complainant be promoted from the GS-7 level to the GS-8 level based
on accretion of duties. ROI, at 1264-65. S1 emphasized that he was unfamiliar with civilian
promotions and sought advice from HRS-1. Id. at 1267. S1 affirmed that he was initially
informed by HRS-1 that Complainant could only be promoted from GS-7 to GS-9, and he
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prepared the position description for the promotion which included duties that he wanted
Complainant to do in the future to help get her promoted. Id. at 1289-91. HRS-1 later informed
S1 that she was mistaken and Complainant could only be promoted for duties she actually
already performed. Id. at 1292-93. S1 had already told Complainant that she could be promoted
to the GS-9 level and informed her that he had received incorrect information. Id. at 1293, 1298.
S1 re-wrote Complainant’s position description, it was graded at the GS-8 level, and
Complainant’s position was upgraded to the GS-8 level. Id. at 1299-1300. Complainant’s
promotion was placed on hold in February 2011, due to a hiring freeze that prevented
management from hiring or promoting anyone. Id. at 1384-85. Once the freeze was lifted,
Complainant’s promotion was processed. Id. at 1457

With respect to CW1’s selection to the GS-9 position, S1 asserted that management learned that
the facility needed a Quality Assurance Officer position for accreditation. ROI, at 1305. S1
stated that management believed that it could incorporate the duties of that position into
Complainant’s position description which would allow her to be promoted to the GS-9 level. Id.
at 1306. S1 learned from HRS-1 that the position was graded at the GS-9 level, but the position
would have to be announced and Complainant would have to compete for it. Id. at 1309. The
position, however, was a temporary appointment for up to four years. Id. at 1310-11.
Complainant did not apply for the position based on its temporary nature. Id. at 1311. CW1 was
ultimately selected for the GS-9 position, but Complainant is paid more. Id. at 1325. S2 added
that he may have said something to Complainant about “getting [CW1] up to speed,” but only in
the context of how they conduct business or operate as a team. Id. at 1427-28.

Regarding claim (4), S1 and S2 denied ordering anyone to monitor Complainant’s activities or
computer. ROI, at 1336, 1452. The two employees who Complainant claimed monitored her
activities denied being asked to monitor her. Id. at 185, 192.

Finally, as to her claims regarding leave alleged in claims (5) – (8), the Captain stated that
Complainant submitted a package requesting 30 days of paid administrative leave to the
Commanding General. ROI, at 141-42. The Commanding General denied the request and asked
the Captain to speak with Complainant regarding her leave options. Id. at 142. On June 11,
2012, the Captain informed Complainant that her request had been denied and advised her to go
through her chain-of-command for leave options. Id. On June 19, 2012, S2 called Complainant
about her leave situation, but left a message informing her that he would have to change her
LWOP status to AWOL because she had not contacted management or produced medical
documentation in support of her absence. Id. at 132. Complainant returned his call and stated
that she would be sending documentation. Id. at 133. S2 sent Complainant an AWOL letter on
June 20, 2012, after not receiving the medical documentation. Id. S2 received the medical
documentation after sending the letter, and attempted to contact Complainant to inform her that
she would be placed in advanced sick leave status. Id. S2 denied commenting on Complainant’s
mental health; rather, he stated that he did tell her that he was concerned about her medical
health but that she needed to submit medical documentation to substantiate her absence. Id. at
134.

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The Commission finds that Complainant has not shown that 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 failed to show that the Agency’s explanation
was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant
was not subjected to discrimination, reprisal, or a hostile work environment as alleged.

EPA Claim

Finally, the Commission notes that Complainant also alleged a violation of the Equal Pay Act
(EPA). Specifically, Complainant alleged that CW1 was assigned to “perform the same or
similar duties as she, but at a higher rate of pay.” The United States Supreme Court articulated
the requirements for establishing a prima facie case of discrimination under the EPA in Corning
Glass Works v. Brennan, 417 U.S. 188 (1974). To establish an EPA claim, a complainant must
show that he or she received less pay than an individual of the opposite sex for equal work,
requiring equal skill, effort, and responsibility, under similar working conditions within the same
establishment.

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir.
1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must
be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill,
effort, and responsibility used to measure the equality of jobs are not precisely definable. Id.
Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §
1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the
performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of
accountability required in the performance of the job, with emphasis on the importance of the job
obligation.” 29 C.F.R. § 1620.17(a).

Here, the Commission finds that Complainant failed to establish a prima facie case of
discrimination under the EPA. Specifically, Complainant has not demonstrated that she was
being paid less than her male colleague. The record shows that Complainant was paid at the GS-
8, Step 9 level with a salary of $54,412. ROI, at 272. CW1 was paid at the GS-9, Step 1 level
with a salary of $47,448.3 Id. at 329. Thus, Complainant was not paid less than CW1.
Nonetheless, even taking into account that CW1 was hired at a higher grade level, Complainant
has not established that she and CW1 performed equal work, requiring equal skill, effort, and
responsibility. S1 explained that Complainant’s duties were largely administrative in nature in
that she would input data and information, enroll students when they arrived, ensuring students
have lodging, and prepare certificates for graduating students once they completed the course.
Id. at 1344-46. By contrast, CW1’s duties included evaluating the training materials used in the
classroom, understanding and interpreting regulations, and issuing surveys to students and
supervisors. Id. at 1340-46. S1 noted CW1 had been an instructor so his institutional knowledge

3 The FAD stated that CW1’s salary was $47,563; however, the SF-50 in the record lists his total
salary as $47,448.
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and experience in the classroom were essential in evaluating an academic course’s performance.
Id. at 1343-45. Conversely, S1 pointed out that Complainant did not have experience as an
instructor. Id. at 1345. S2 added that 50 to 60 percent of CW1’s job involves quality assurance
which included building surveys, consolidating surveys, looking for patterns and trends and
making recommendations to him. Id. at 1423. S2 noted that approximately 25 percent of CW1’s
duties were concurrent with Complainant’s administrative duties so that if she was out of the
office, he could step in and do some of her duties. Id. S2 stressed that Complainant performed
more “administrative assistant” type of duties and record-management duties. Id. at 1424.

Upon review, the Commission finds that the record evidence supports that Complainant was not
paid less nor did she perform equal work requiring equal skill, effort, and responsibility.
Accordingly, the Commission finds that Complainant failed to prove that the Agency violated
the EPA.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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
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legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission.

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The court has the sole discretion to grant or deny these types of requests. Such requests do not
alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right
to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

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

July 26, 2017
Date