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

Equal Employment Opportunity Commission

Aug 4, 2020

2019001968 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laurice S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001968 Hearing No. 461-2017-00112X Agency No. 2003-0321-2016105178 DECISION On February 27, 2019, 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 January 28, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS in PART and REVERSES in PART the Agency's final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Counselor, GS-12 at the Agency’s Regional Office in New Orleans, Louisiana. Complainant entered duty with the Agency in 2007, and transferred into the New Orleans office in November 2013, where she worked until her termination in April 2017. Complainant experiences complications from multiple physical and mental conditions including osteoarthritis and post-traumatic stress disorder (PTSD). Because of her conditions, Complainant could not lift more than five pounds and had difficulty typing. As a result, Complainant used dictation software. 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. 2019001968 2 Complainant stated that her PTSD condition was triggered by “noises that were not routine for the office.” Complainant further stated that she sometimes has trouble sleeping and medication makes it more difficult to get started the following morning On December 16, 2015, Complainant’s husband, a veteran with service-connected disabilities, became sick and Complainant needed to take time off from work under the Family and Medical Leave Act (FMLA). However, Complainant claimed that her immediate supervisor (S1) lied about her work productivity and required Complainant to return to work or else be charged with Absent Without Leave (AWOL). When Complainant returned to work, she tried to enter her leave in the Agency’s timekeeping system, but it rejected her requests on the grounds she had no leave available. Complainant insisted this was incorrect because “based upon my calculations I have the leave.” As a result, Complainant was charged with AWOL. Complainant claimed that, during this time, Human Resources asked her to consider disability retirement. S1 denied threatening Complainant with AWOL. Rather, the Agency’s electronic timekeeping system was not properly tracking Complainant’s leave balances due to the Agency’s attempt to fix an earlier issue. Specifically, Complainant had sought advanced annual leave, which had been approved too late to be inputted into the system. In order to ensure Complainant received a paycheck, S1 had to work directly with the payroll processing system, which caused Complainant’s electronic leave balances to be out of sync. In order to accurately track Complainant’s leave, S1 asked Complainant to submit leave sheets. During this process, S1 frequently spoke with Complainant to ensure Complainant understood proper protocol for securing leave, FMLA, and LWOP, and for providing the attendant documentation. S2 confirmed that Complainant had been given written and verbal instructions on the proper protocol for having leave approved. Additionally, Complainant alleged that S1 sent her harassing emails and telephone calls while she was out on extended leave. Further, Complainant claimed that S1 lied when she said Complainant had not done right by her clients, who were veterans trying to gain employment. S1 said that a veteran filed a Notice of Complaint against Complainant. Complainant alleged that the veteran told her that S1 directed the veteran to file a complaint, and that the veteran did not really want to file the complaint. S1 also denied issuing false and manipulative accusations against Complainant. Rather, Complainant was frequently out of the office without notice. While she was out of the office, veterans assigned to her would call. Complainant’s leave became unpredictable, so the Agency needed to tell the veterans she was out on extended leave and needed to try and assist that veteran. S1 explained that some veterans were not happy receiving assistance from others and submitted a complaint. S1 denied telling the veterans to file a complaint against Complainant. S1 also denied harassing Complainant by sending her emails and calling her nonstop. Rather, the nature of the office dictated that priorities shift over time. In the event that Complainant was out on extended leave, the priorities she had when she went out would not necessarily be the same as when she came back. Certain issues take priority over others, according to S1. S1 said such priority-shifting was required of all counselors, not just Complainant. 2019001968 3 Complainant alleged that her coworkers and superiors frequently spoke outside her office and knocked on her door, and it came to a head on August 8, 2016. As a result, Complainant was unable to get any work done because she would be distracted by what her coworkers and superiors were asking about. Complainant felt most of these requests could have been in email form instead of in person. Moreover, the noise that resulted when coworkers talked outside Complainant’s door prevented Complainant from being able to use her dictation software. S1 explained that Complainant was interrupted at times and that most of the time when that happened, Complainant was dictating a case and that person’s needs took priority over completing dictation. S1 added that co-workers sometimes knocked on Complainant’s door when there was a veteran on the phone or in person that had an urgent need. S1 stressed that Complainant was not singled out; rather, it was just part of the daily operation. Complainant did not work between August 9 and September 12, 2016. Complainant claimed that S1 sent her harassing emails during this time and sent her conflicting instructions on what to do with her work. S1 also did not reassign casework during her absence. Instead, she allowed the cases to sit on Complainant’s shelf, which damaged Complainant’s productivity metrics. Complainant also alleged that S1 violated Complainant’s privacy by publishing her work productivity numbers, along with those of all her coworkers, on a board in the office. At this time, Complainant had low productivity, so her numbers were zeros across the board. As a result, Complainant believed all her coworkers viewed her as lazy. Complainant’s husband submitted FMLA documentation on Complainant’s behalf. While Complainant was on leave, she received a letter from the Local Reasonable Accommodation Coordinator (LRAC). In the letter, LRAC explained that Complainant’s request for FMLA leave was not supported by documentation, and that she would be charged AWOL until Complainant provided appropriate FMLA documentation. Complainant did so, and the Agency changed her leave status from AWOL to Leave Without Pay (LWOP). During this time, on August 22, 2016, Complainant requested, as reasonable accommodation, advanced annual leave in lieu of sick leave or FMLA leave. S2 granted Complainant LWOP instead and told Complainant that LWOP was an acceptable alternative to advanced annual leave. Complainant disputed the effectiveness of the accommodation since it resulted in no pay. S2 explained that Complainant had been given advanced leave in the past and she would not have any leave for the remainder of the year if she approved the advanced leave. After Complainant returned from extended leave, on October 5, 2016, the Agency placed her on a Performance Improvement Plan (PIP). Complainant alleged that S1 and S2 used the five months she was out of work against her in calculating her performance metrics. Complainant argued that she would have met her performance metrics if she had been able to use her dictation software and if her time out of work was not used against her. During the PIP period, Complainant claimed that she kept getting the hardest cases. According to Complainant, the PIP should never have happened because if her performance metrics were properly calculated, she would have been meeting her goals. 2019001968 4 S1 stated that Complainant was placed on the PIP because she was not meeting goals and performance standards. For example, Complainant was not meeting timeliness standards for applicant status cases. S1 denied that the five months Complainant was absent were included in calculating her performance metrics or that Complainant was assigned more difficult cases. Complainant believed that the PIP was discriminatory because it was imposed in the middle of her reasonable accommodation request. Complainant alleged that the Agency told her that she would get reasonable accommodations if she agreed to be put on a PIP. S1 retired while the PIP was in effect. S2 issued Complainant a negative PIP summary on January 31, 2017. S2 rated Complainant as “Unacceptable” in each element on the PIP summary. Complainant believed that the PIP was formulated in such a way to force her removal. S2 explained that Complainant received a negative performance summary because she failed to perform her job at a fully successful level during the PIP period. S2 added that Complainant was out on FMLA leave at times during her PIP period, so the Agency accommodated Complainant by extending her PIP period. Instead of lasting 90 days, the PIP period lasted 111 days, so Complainant “had 111 actual workdays to perform at a fully successful level.” S2 noted that Complainant had over 100 cases in applicant status, but by the end of the PIP period, she had only moved six cases into evaluation and planning. Complainant alleged that she requested a reassignment to a similar position in Mobile, Alabama, Biloxi, Mississippi, or Pensacola, Florida, in December 2015. Officials conducted a search but were unable to find a suitable vacant position in those locations. Complainant claimed that reassignment was necessary because the treatment regimen for her mental condition was not available in the New Orleans area, but was available in Mobile, Biloxi, and Pensacola. Complainant claimed that there were open positions, but the Agency delayed its search until after these positions were filled. Complainant subsequently renewed her request in November 2016. LRAC informed Complainant that she reached out to the locations Complainant previously identified and determined again that there were no open, funded positions available. The LRAC noted, however, that Complainant had been previously granted 12 items as accommodations, including dictation software; a private office on the sixth and seventh floors; and various ergonomic equipment. On February 8, 2017, S2 issued Complainant a proposed removal for unacceptable performance. S2 indicated in the notice that Complainant had failed to meet the performance standard of the critical elements of her position. Complainant questions her removal from the Agency because three days prior to receiving the notice of removal, she received a within grade salary increase due to acceptable and competent performance. Complainant notes that the increase came on her anniversary date, which was February 5. S2 instructed Complainant to not have contact with veterans and to work on cleaning up her files to make sure that she had everything noted in the system and to pay any bills that needed to be paid to schools or to the veteran as part of their training. 2019001968 5 The Proposed Removal, dated February 8, 2017, reiterated the information summarized in the PIP summary and concluded that Complainant’s removal was being proposed because she failed to demonstrate an overall acceptable performance level. Because Complainant’s termination was proposed, S2 had to plan for the possibility that Complainant would not be performing the duties of her position and transition her caseload to other counselors. Further, “once we have issued an unsuccessful PIP, we cannot allow the employee to continue to perform a job that they have been unable to perform successfully.” On November 28, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (orthopedic issues, PTSD, anxiety, and depression), age (57), and in reprisal for prior protected EEO activity when: 1. From December 16, 2015, through July 31, 2016, Complainant’s immediate supervisor (S1) and second-level supervisor (S2) threatened her with being charged with Absent Without Leave (AWOL) whenever she entered a leave request; 2. From July 14, 2016, through August 30, 2016, S1 subjected Complainant to numerous manipulative and false allegations, harassing emails, and telephone calls, and disclosed confidential information to her co-workers; 3. On August 8, 2016, coworkers and supervisors continually knocked on Complainant’s office door, preventing her from completing work assignments; 4. On August 16, 2016, Complainant became aware she was being charged 80 hours of AWOL for the period of August 8 through 20, 2016; 5. On or about August 22, 2016, S2 denied Complainant’s reasonable accommodation request for advanced annual leave; 6. On October 26, 2016, S1 placed Complainant on a Performance Improvement Plan (PIP); 7. On February 7, 2017, S1 issued Complainant a negative PIP summary; 8. On February 8, 2017, Complainant’s “renewed” reasonable accommodation request was denied; 9. On February 8, 2017, S2 issued Complainant a proposed removal; and 10. Effective February 13, 2017, S2 instructed Complainant to no longer have contact with veterans. 2019001968 6 Complainant further alleged that on July 21-22, 2016, management officials provided dishonest testimony in a prior EEO case. The Agency dismissed this claim for failure to state a claim because testimony in a prior EEO hearing is protected by an absolute litigation privilege. Additionally, Complainant claimed that she was denied official time and reasonable time to process her EEO complaints from July 23, 2016 through August 4, 2016. The Agency dismissed this claim for failure to state a claim as well. The Agency reasoned that an allegation of denial of official time was to be processed by the Agency through a written statement in the complaint file noting the reasons for the denial. Therefore, the Agency concluded that such allegations do not state a claim. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request on the grounds that Complainant’s hearing request was untimely filed. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination, reprisal, or a hostile work environment as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Denial of Reasonable Accommodation Under the Rehabilitation Act, an agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that Complainant is an individual with a disability. First, Complainant contends that the Agency did not reasonably accommodate her when S2 declined to grant her advanced annual leave and instead placed her on LWOP. S2 explained that Complainant was granted LWOP instead of advanced leave because Complainant had been given advanced leave in the past and she would not have any leave for the remainder of the year if she approved the advanced leave. 2019001968 7 S1 affirmed that management believed it was more prudent and beneficial to Complainant to grant her LWOP so that she could accumulate leave to use if she needed it. The Commission notes that Complainant is not entitled to the accommodation of her choice if another accommodation would also be effective. See e.g., Casteneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994) (stating complainants are not necessarily entitled to the accommodation of their choice, but to a reasonable accommodation). Further, an Agency is not obligated to provide Complainant with paid leave beyond that which is provided to similarly situated employees. Joseph v. Dep’t of Def., EEOC Appeal No. 0120060710 (Mar. 7, 2007), citing EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship, EEOC Notice 915.002 at p. 29 (Oct. 17, 2002). Here, Complainant has not presented arguments or evidence showing that the granted accommodation of LWOP was ineffective. Regarding Complainant’s request for reassignment as an accommodation, the Commission notes that reassignment is the reasonable accommodation of last resort and should be considered only when (1) there are no effective accommodations that would enable an employee to perform the essential functions of his or her current position or (2) accommodating the employee in the current position would cause an undue hardship. 29 C.F.R. pt. 1630 app. § 1630.2(n); Enforcement Guidance on Reasonable Accommodation, “Reassignment.” An agency is in the best position to know which jobs are vacant or will become vacant within a reasonable time and, as part of the interactive process, should ask the employee about his or her qualifications and interests. Because it possesses the relevant information, an agency is obligated to inform an employee about vacant positions for which the employee may be eligible as a reassignment. Woodman v. Runyon, 132 F.3d 1330, 1344 (10th Cir. 1997) (federal employers are far better placed than employees to investigate in good faith the availability of vacant positions); see also Enforcement Guidance on Reasonable Accommodation at Question 28. The employee should assist the agency in identifying vacancies to the extent that the employee has information about them. Further, if the agency is unsure whether the employee is qualified for a particular position, the agency can discuss with the employee his or her qualifications. Mengine v. Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997) (once an employer has identified possible vacancies, an employee has a duty to identify which one he is capable of performing)); see also Enforcement Guidance on Reasonable Accommodation at Q. 28. In this case, Complainant had previously requested reassignment in December 2015, but the Agency found no available, open positions into which to reassign her. The record indicates that the Agency received Complainant’s “renewed” request on November 30, 2016. LRAC averred that she conducted a search within Complainant’s desired area and discovered no vacant, funded positions into which Complainant could be assigned. Although Complainant contends the Agency unreasonably delayed its search, we find no evidence of such in the record. The Agency conducted the search and ultimately informed Complainant that there were no available positions on December 23, 2016. Complainant has not met her burden in establishing a likelihood that there was work available or there was otherwise a vacant, funded position into which she could have been reassigned anywhere at the Agency at the relevant time. 2019001968 8 While Complainant claims that she applied for a position and was told by the selecting official that she could have been reassigned into that position, the record is devoid of any evidence in support. Accordingly, the Commission finds that the Agency did not deny or otherwise unreasonably delay Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this case, as detailed more fully above, S1 and S2 articulated legitimate, nondiscriminatory reasons for their actions. Regarding claims (1) and (4), Complainant was charged 80 hours of AWOL because she had not submitted appropriate documentation to support FMLA leave. When she did, the Agency rescinded her AWOL status and placed her on LWOP. As to claims (6) and (7), S1 identified concrete performance numbers that indicated Complainant was not performing at the “fully successful” level, which required the implementation of a PIP. Complainant also received a negative summary on the PIP because her performance during the review period also did not meet standards. With respect to claims (9) and (10), Complainant did not meet standards indicated in the PIP, so S2 proposed her removal and prepared for the possibility she would be removed by transitioning Complainant’s assigned cases to other counselors. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2019001968 9 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. We find Complainant has not carried his burden. As a result, the Commission finds that Complainant has not demonstrated that she was subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant claims that the alleged incidents constitute a claim of harassment, 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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 a protected basis -- in this case, because of her disability, age, or for engaging in prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management subjected her to a hostile work environment as evidenced by several incidents of what she believed to be discriminatory and retaliatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, 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 or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations as discussed above. There is no evidence reflecting the existence of discriminatory or retaliatory animus toward Complainant based on her protected classes. The Commission concludes that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. Denial of Official Time The Commission has stated that a claim regarding the denial of official time states a separately processable claim alleging a violation of the Commission's regulation and does not require a determination of whether the denial was motivated by discrimination. 2019001968 10 Such a claim should not be processed in accordance with 29 C.F.R. 1614.108 because the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Essentially, the Commission has held that it has the authority to remedy a violation of 29 C.F.R. § 1614.605 without a finding of discrimination. See Edwards v. U. S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). In this case, the Agency erroneously dismissed Complainant's claims that she was denied or not granted sufficient official time. Although the Agency did not need to investigate the claim pursuant to 29 C.F.R. § 1614.108 to determine whether the denial was discriminatory, it nonetheless should have determined whether the denial was justified. See Malone v. U.S. Postal Serv., EEOC Appeal No. 01994267 (Jan. 29, 2001) (claims regarding the denial of official time state a claim). We cannot determine from the record before us whether Complainant received an appropriate amount of official time for EEO matters. Accordingly, we will remand this matter to the Agency for an investigation and determination on this issue. See Xavier P. v. U.S. Postal Serv., EEOC Appeal No. 0120180972 (Apr. 4, 2018) (ordering agency to investigate complainant's claim that he was denied official time for EEO matters and to issue decision with appeal rights to Commission); Natalie S. v. Dep't of Veterans Affairs, EEOC Appeal Nos. 0120140815, 0120142049 (Jan 26, 2018). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision with respect to Complainant's allegations concerning the denial of official time. We AFFIRM the Agency's final decision with respect to all other allegations. ORDER Within sixty (60) calendar days of the date this decision issued, the Agency is ORDERED to conduct a supplemental investigation into the issue of whether Complainant was denied official time regarding Agency No. 2003-0321-2016105178. The Agency shall include in the record the following information: documentation showing how much time was requested; how much time was granted, if any; the justification for the denial of any requested time. The Agency shall notify Complainant of the opportunity to place into the record any evidence supporting her claim that she was denied a reasonable amount of official time. Thereafter, the Agency shall issue a final decision as to whether Complainant was denied a reasonable amount of official time, with appeal rights to the Commission. A copy of the report of investigation and the final decision on official time shall be sent to the Compliance Officer as referenced below. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” 2019001968 11 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 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. 2019001968 12 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 (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 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. 2019001968 13 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 August 4, 2020 Date