Matt A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120171698 (E.E.O.C. Mar. 19, 2019)

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

Matt A.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120171698

Hearing No. 570-2016-00377X

Agency No. DON156919700624

DECISION

On April 14, 2017, 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
March 15, 2017 final decision concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Equal Employment
Specialist (Final Agency Decision (FAD) Analyst) at the Agency’s Office of Civilian Human
Resources, Naval Office of Equal Employment Opportunity Complaints Management and
Adjudication facility in the Washington, D.C. Navy Yard. Complainant began working with the
Agency in December 2013.

On or about April 21, 2014, Complainant’s first-level supervisor (S1) held a meeting with
Complainant in which they discussed FAD Analyst standards, Complainant’s work performance
since the start of his employment, and other concerns. ROI, Ex. F30, at 2.

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.
0120171698

2

On May 30, 2014, S1 emailed Complainant regarding two cases that were returned for rework,
encouraging him to ensure that future drafts did not contain the same mistakes and errors. ROI,
Ex. F17, at 7. S1 reiterated that the expectation was for Complainant to send the Team Lead (TL)
at least one FAD per week and offered Complainant the opportunity to discuss concerns with her
or get one-on-one assistance from TL.

In an email dated June 23, 2014, S1 informed Complainant that she reviewed the spreadsheet and
Complainant had not submitted a draft since the end of May. She noted that they had previously
discussed the requirement that each Analyst needed to submit at least one FAD per week and asked
Complainant if they needed to go over the requirements, which Complainant declined. ROI, Ex.
F17, at 5.

In an undated memorandum, S1 informed Complainant that he had failed to meet the core
requirements of his job as a FAD Analyst based on a six-month performance record. ROI, Ex.
F16, at 1-2. The memorandum indicated that based on Complainant’s start date, he should have
completed at least 24 FADs. However, Complainant had completed 13 FADs and of the submitted
drafts, 12 required major revisions. Accordingly, the memorandum informed Complainant that he
was removed from telework and required to submit a minimum of two FADs per week.
Complainant responded that he would comply. S1 noted that she would have another discussion
with Complainant regarding his performance on August 15th. ROI, Ex. F16, at 3. Through August
2014, S1 continued to follow-up with Complainant regarding his failure to meet the previously-
discussed quota and the need for major corrections in his drafts. ROI, Ex. F17, 2-3.

On October 28, 2014, S1 issued Complainant a “Notice of Unacceptable Performance and
Opportunity to Improve,” placing him on a Performance Improvement Plan (PIP). ROI, Ex. F2,
at 2-6. The notice stated that Complainant was provided with performance standards during a
March 2014 discussion and again with a follow-up email on May 7, 2014, but Complainant
continued with unacceptable performance. Specifically, Complainant’s performance was
unacceptable related to two critical elements: Quality of Products and Compliance with Regulatory
Timeframes.

November 2014 email correspondence between Complainant and S1 show that on November 13,
2014, S1 approved Complainant’s annual leave request for November 25, 2014, through December
1, 2014. ROI, Ex. F17, at 51. S1 informed Complainant that “leave is fine but please submit your
required drafts (2/week) to [TL] before you take your leave.”

On November 14, 2014, Complainant met with S1 for a weekly discussion on the status of his
work. ROI, Ex. F17, at 16. At the end of their meeting, S1 instructed Complainant to send TL a
draft along with a supplemental request for additional information. Id. On November 17, 2014,
S1 and TL could not confirm receipt of the requested documents and S1 emailed Complainant
stating that because he had failed to follow her instructions, she was disapproving his leave request.
Id. at 17. Complainant maintained that he followed S1’s instructions and S1 ultimately approved
Complainant’s leave request once he informed her that he had already purchased tickets.
0120171698

3

On December 12, 2014, S1 emailed Complainant, noting that she was following up on their phone
conversation. ROI, Ex. F17, at 10-11. In the email, S1 indicated that Complainant had five
pending cases with expired and adjusted deadlines. S1 reiterated the performance standards. In
response, on December 15, 2014, Complainant asserted that the critical elements regarding the
total number of required merit FADs was unrealistic and he was dissatisfied with S1’s performance
management. Complainant stated that S1’s performance management was “severely impeding
[Complainant’s] ability to write FADs in an environment that is free of intimidation and
harassment.” Complainant added that he considered the terms and conditions that S1 imposed to
be a hostile work environment. S1 escalated Complainant’s concerns and Complainant’s second-
level supervisor (S2) initiated a management inquiry.

On December 17, 2014, S2 conducted a meeting between Complainant, TL, and herself. ROI, Ex.
F18, at 5. At the meeting, S2 informed Complainant that TL would be handling the administrative
matters regarding his performance pending the conclusion of the management inquiry. Id. On
December 18, 2014, Complainant emailed Human Resources, stating that he had concerns about
TL’s presence at his meeting. ROI, Ex. F18, at 8.

On March 19, 2015, S1 issued Complainant a “Notice of Proposed Removal” due to Complainant’s
failure to demonstrate an acceptable level of competence during the PIP. ROI, Ex. F215, at 2-14.

On January 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American) and sex (male) when:

1. At various times between December 2013 and March 2015, he was subjected to a
hostile work environment as evidenced by the following events:

a. Beginning December 2014, Complainant’s first-line supervisor (S1) had not
assigned him “Special Assignments” in accordance with his “Critical
Elements,” while other coworkers have been assigned such tasks;

b. On December 17, 2014, S1 assigned an employee who was not a manager to
conduct weekly meetings concerning Complainant’s performance while on a
PIP;

c. On November 17, 2014, S1 sent him an email threatening to disapprove his
preapproved leave, contingent upon the production of two Final Agency
Decisions (FADs) per week;

d. Beginning October 28, 2014, S1 failed to provide him clarification regarding
his PIP;

e. On October 28, 2014, S1 issued a PIP in the presence of a team leader who is
not part of management;
0120171698

4

f. On October 28, 2014, S1 subjected Complainant to different FAD writing
standards than his fellow coworkers;

g. Beginning October 2014, S1 failed to provide Complainant with a FedEx
account to conduct business while teleworking;

h. Beginning March 2014, S1 subjected Complainant to different telework
standards than his fellow coworkers;

i. From January 2014 to the time of the FAD, S1 excluded Complainant from
attending DON EEO sponsored meetings, including teleconferences and work
group discussions;

j. From December 2013 to the time of the FAD, S1 forced him to work in a
workspace two times smaller than other employees;

k. From December 2013 to April 2014, S1 did not provide him with his
Performance Standards;

l. From December 2013 to the time of the FAD, S1 assigned Complainant to a
workspace two times smaller than those assigned to his coworkers; and

m. On March 19, 2015, S1 issued Complainant a proposed termination letter.

2. On October 28, 2014, S1 placed him on a PIP;

3. In October 2014, S1 denied him the opportunity to attend the DON Southbridge
training conference; and

4. On October 6, 2014, S1 provided him with an inaccurate position description.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the
AJ denied the hearing request on the grounds that Complainant’s hearing request was untimely.
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 him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erroneously denied his hearing request, averring that
his request for a hearing was timely when the Agency continued to supplement the ROI through
0120171698

5
October 2, 2015. Complainant asserts that the Agency excluded pertinent information from the
investigative file. Complainant contends that without including some, if not all, of the
documentation that he requested from the Agency, there are material facts in dispute. Complainant
further contends that management officials were not credible in their testimonies. Accordingly,
Complainant requests that the Commission reverse the final decision.

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”).

ROI and Untimely Hearing Request

As an initial matter, the Commission will address Complainant’s contentions regarding the
adequacy of the Agency’s investigation into his complaint and the AJ’s dismissal of his hearing
request. On appeal, Complainant argues that the Agency’s ROI is not a complete, impartial, or
appropriate record and that there are conflicts of interest associated with the Agency’s processing
of his complaint. EEOC Regulation 29 C.F.R. §1614.108(b) states, in relevant part, that the agency
shall develop an impartial and appropriate factual record. Complainants can also cure defects in
an investigation, after reviewing the ROI, by requesting a hearing before an AJ. Here,
Complainant apprised the Agency of several perceived ROI deficiencies and requested an
extension of the ROI review. Complainant’s extension was granted until July 30, 2015. On
September 8, 2015, the contractor tasked with conducting the investigation reviewed
Complainant’s letter of perceived deficiencies and determined that Complainant’s assertions were
beyond the purview of the claims accepted for investigation. In addition, the contractor asserted
that Complainant’s allegations were addressed by individuals who had firsthand knowledge of the
accepted claims. Upon review, the Commission finds that the investigation was adequate and that
the record is sufficiently thorough for the fact finder to address the ultimate issue of whether
discrimination occurred.

With respect to the denial of his hearing request, Commission regulations provide that a
complainant has 30 days from receipt of the ROI to request a hearing from the Commission or a
final decision from the agency. 29 C.F.R. § 1614.108(f). Complainant acknowledged that he
received a “Post Investigative Options Notice” on July 18, 2015. The record reflects that on
October 2, 2015, the Agency notified Complainant that supplemental information, including
information related to workspace allocations, was added to the ROI. Complainant did not request
a hearing until November 9, 2015, which was beyond the requisite time to submit a hearing request.
0120171698

6
Accordingly, we find that the AJ did not err when she denied Complainant’s untimely hearing
request.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he 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 his
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 his harassment claim, Complainant must establish that he 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 his protected classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

We find that the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids
“only behavior so objectively offensive as to alter the conditions of the victim’s employment.”
Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged
conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission
finds that Complainant failed to show that the Agency’s actions were based on discriminatory
animus.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. For example, S2 denied
that Complainant did not receive “Special Assignments.” ROI, Ex. F2, at 5. S2 explained that
Complainant was hired to write FADs, but in her opinion, Complainant received special
assignments, including identifying issues and common errors in complaints, ensuring that
templates were correct, and performing any other task outside of FAD writing. Id. S1 affirmed
that upon his hiring, Complainant was informed that the focus was on production and quality of
the FAD. S1 stated that while trying to resolve their backlog, special assignments included
providing feedback on the sufficiency of ROIs or processing by the servicing offices. ROI, Ex.
F3, at 6.

Regarding the incidents surrounding Complainant’s PIP, claims 1(b), (d), and (e), management
officials affirmed that Complainant’s PIP was issued in the presence of TL. ROI, Ex. F3, at 8. S2
averred that as a Team Lead, TL is considered a management official and his responsibilities
0120171698

7
include providing feedback to the FAD Analysts. ROI, Ex. F2, at 5, 6. S1 added that TL attended
discussions with other Analysts regarding their work performance and work expectations, but TL
was present at the meeting in question in case Complainant had questions on specific cases and
the outcome of their review. ROI, Ex. F3, at 8. With respect to TL conducting Complainant’s PIP
meetings, S2 explained that TL took over when S1 was out with a medical emergency. ROI, Ex.
F2, at 5. S1 added that Complainant’s weekly workload discussion was assigned to TL pending
the completion of a management inquiry. ROI, Ex. F3, at 6. As for PIP clarification, S2 stressed
that both S1 and TL provided Complainant with very specific feedback during the relevant period.
ROI, Ex. F2, at 6. S1 noted that she was very clear in explaining why the PIP was delivered and
she held numerous discussions with Complainant about his work deficiencies. ROI, Ex. F3, at 8.
Evidence within the record reflects ongoing communication about the quantity and quality of
Complainant’s work.

With respect to Complainant’s claim that his first-line supervisor sent him an email threatening to
disapprove his preapproved leave contingent upon the production of two FADs per week, S1
affirmed that she informed Complainant that she would not approve future leave requests until he
completed his pending caseload. ROI, Ex. F3, at 7, 8. S1 explained that she had previously
instructed Complainant to send a FAD draft and supplemental request to TL, but when
Complainant failed to do as instructed, she told him that she would pull his leave for Thanksgiving.
Id. Nevertheless, Complainant was allowed to take leave. FOI, Ex. F2, at 13.

As to Complainant’s claim that he was held to different FAD writing standards than his coworkers,
S2 averred that while one employee may have had a different plan during her training period,
Complainant was never subjected to standards different than the other experienced FAD Analysts.
ROI, Ex. F2, at 6. S1 clarified, however, that Complainant remained at the one FAD per week
standard with the goal of increasing his production requirement once he reached an acceptable
level. ROI, Ex. F3, at 9. TL confirmed that Analysts were required to submit one to two FADs
per week to TL, but once Complainant was placed on the PIP, he was only required to provide one
FAD per week. ROI, Ex. F5, at 6. TL affirmed that Complainant’s coworkers met the standard
and their work did not require major substantive revisions. Id.

Regarding the FedEx and telework standards claims, S1 asserted that Complainant did not want
an account and did not want to telework when he began working with the Agency. ROI, Ex. F2,
at 6; ROI, Ex. F3, at 10. Complainant subsequently requested telework, but because he was in the
office twice per week, he did not receive an account. Id. S2 confirmed that accounts were not
provided to individuals who work in the office or only telework part-time. ROI, Ex. F2, at 6.
Agency officials noted that Complainant worked under a liberal telework policy until he was
placed on the PIP. ROI, Ex. F5, at 7. Upon his placement on the PIP, Complainant was required
to work in the office full-time. Id.

Regarding Complainant’s claim that his first-line supervisor excluded him from attending DON
EEO sponsored meetings, teleconferences, and workgroup discussions, S1 denied that
Complainant was excluded. ROI, Ex. F2, at 7. She averred that the Southbridge conference was
0120171698

8
for operational employees and Complainant never requested to attend any of the events in question.
Id.

With respect to Complainant’s workspace allocation claims, claims 1(j) and (l), S2 affirmed that a
lower-graded employee utilized the larger space to perform clerical tasks and S1 noted that the
administrative assistant’s placement was due to privacy concerns. ROI, Ex. F2, at 7; ROI, Ex. F3,
at 12. S2 asserted that Complainant was placed in a smaller cubicle because he was teleworking
twice per week and maintained that Complainant’s space was the same size as other Analysts. Id.
S1 stated that Complainant was assigned the same workspace as the FAD Analyst who retired
prior to Complainant coming onboard and agreed that the FAD Analysts have the same workspace.
ROI, Ex. F3, at 12.

As to the issues related to Complainant’s claim that from December 2013 through April 21, 2014,
his first-line supervisor did not provide him with his Performance Standards, management officials
explained that they were shorthanded when Complainant came onboard and several employees
experienced a delay in receiving their performance standards. ROI, Ex. F2, at 7. S1 stressed that
from day one, Complainant received assistance and information even though the standards were
not provided until all new employees were in place. ROI, Ex. F3, at 12. She added that TL was
always available for consultation, advice, mentoring, and guidance. Id.

With respect to the proposed termination letter claim, claim 1(m), S1 averred that prior to the
proposed termination, Complainant was not performing at an acceptable level and had difficulty
meeting performance objectives despite constant feedback. ROI, Ex. F7, at 3, 4. S2 confirmed
that at the end of Complainant’s PIP, management officials determined that Complainant failed to
improve, which resulted in the proposed termination. Id. S1 specified that through the duration
of the PIP, from October 28, 2014 through February 6, 2015, Complainant did not meet two of the
four critical elements in his PIP. ROI, Ex. F8, at 3, 4. A Human Resources Specialist (HR)
confirmed that from his understanding, management officials proposed termination based on
unacceptable performance as a result of the unsuccessful completion of the PIP. ROI, Ex. F9, at
3.

After reviewing the record in its entirety, we agree with the conclusion that the preponderance of
the evidence of the record does not support a finding that the alleged incidents were sufficiently
severe or pervasive to establish a hostile work environment or that management’s conduct was
motivated by discriminatory animus.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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
or she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. 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
0120171698

9
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 Products, Inc., 530
U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Regarding claim (2), management officials affirmed that Complainant was placed on the PIP
because the quantity and quality of his work were not at the same level as the other FAD Analysts.
ROI, Ex. F2, at 9. Specifically, S2 stated that she observed that Complainant was not producing
at least one FAD per week by his sixth month of employment and when he completed a FAD, the
errors required excessive rework. Id. at 10. S1 noted that she held multiple conversations with
Complainant regarding the quality of his FAD and work production leading up to his placement
on the PIP. ROI, Ex. F3, at 14, 15. S1 added that she placed Complainant on notice of his
unacceptable performance in July 2014 and subsequently notified Complainant of the PIP during
his year-end performance discussion. Id. at 15. HR asserted that although he felt management
officials rushed the PIP and Human Resources had concerns about legal sufficiency, he did not
believe Complainant’s race or gender played a role in the Agency’s actions. ROI, Ex. F4, at 8, 10.

With respect to claim (3), S1 and S2 explained that the Southbridge conference was held for
operational employees with roles that were vastly different from Complainant’s. ROI, Ex. F2, at
11; ROI, Ex. F3, at 11. They added, however, that Complainant never requested to attend the
conference and if he had asked, the request would have been denied due to their backlog and
irrelevance to Complainant’s position. Id. Moreover, TL asserted that none of the Analysts were
expected to attend and there was no purpose for them to attend. ROI, Ex. F5, at 10. S1 confirmed
that no other FAD Analyst attended other than one employee who was still working as an EEO
Office practitioner at another command. ROI, Ex. F3, at 11.

As for claim (4), S1 affirmed that prior to 2010, FAD Analysts were classified as GS-0201. ROI,
Ex. F3, at 17. The FAD Analysts were transitioned to GS-0260, but their work and duties did not
change. Id. In the transition, the standard position description did not receive updates to reflect
the changes. ROI, Ex. F2, at 12. Both S1 and S2 stressed that the position description was updated
once they were apprised of the error. ROI, Ex. F2, at 12, 13; ROI, Ex. F3, at 17. The record
includes the position descriptions at issue, which corroborate the testimony provided by Agency
officials. ROI, Ex. F13, 2-8; ROI, Ex. F14, 2-8.

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. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant failed to timely request a hearing, 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. The Commission finds
0120171698

10
no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's
actions. 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 animus. Complainant failed to carry this burden.
Accordingly, we find that Complainant has not established that he was subjected to discrimination
or a hostile work environment as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:

1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
0120171698

11
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. 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

March 19, 2019
Date