[Redacted], Jeannie T., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2021000144 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000144 Hearing No. 420-2016-00279X Agency No. 2003-0741-2016102020 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s final order concerning an 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKROUND During the relevant time, Complainant was employed by the Agency as a Claims Assistant, GS- 6, with the Agency in Pearl, Mississippi. Report of Investigation (ROI), at 142-143. Complainant was hired by the Agency on September 22, 2013, to her temporary appointment term with a “not to exceed” date of September 22, 2014. Complainant suffered an on-the-job injury on May 2, 2014, when she missed her chair and fell to the floor. ROI, at 858. According to Complainant, shortly after her fall, she notified the Supervisory Program Specialist of the incident. Id. at 177-181. 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. 2021000144 2 Complainant explained that she told the Supervisory Program Specialist that her knee was hurting, but she felt fine and so she returned to work. Id. Complainant averred that the following day she notified the Supervisory Program Specialist that she had a bruise on her knee and was still sore. Complainant recalled that the Supervisory Program Specialist then informed her that she would contact the Office Manager, who would most likely contact the Office of Workers’ Compensation Programs (OWCP). Id. Complainant explained that she initially told the Supervisory Program Specialist that she felt fine and did not need to be referred to the OWCP, but her knee later became worse. Id. According to Complainant, the Office Manager stated that the Supervisory Program Specialist informed her of the incident, but she did not yet complete the appropriate documentation for the injury claim. Id. The Office Manager believed that Complainant was upset that her worker’s compensation claim had not been reported in a timely manner. Id. at 368. Additionally, Complainant attested that she sought a reasonable accommodation for her injury, to elevate her knee, which would have allowed her to return to work. Management never responded to her request, stated Complainant, or provided her with a foot stool as recommended by the Ergonomic Coordinator. Id. at 155. However, according to the Human Resources (HR) Specialist, while the Ergonomic Coordinator did recommend a foot stool as an accommodation, Complainant’s OWCP leave was extended and she never returned to work. Id. at 284-287. According to Complainant, she first became aware that her temporary term had not been extended in March 2015, when the Agency notified her via letter that she was no longer employed with the Agency. Id. at 196-197. Complainant believed that the Agency should have extended her appointment while she was on approved leave through the OWCP. Id. Meanwhile, Complainant applied for a permanent Voucher Examiner position under Vacancy Announcement No. VX-15-EGH-1308345-BU. Id. at 961. The vacancy announced positions in multiple locations, including Pearl, Mississippi; Bohnam, Texas; and Denver, Colorado. Id. Complainant accepted Voucher Examiner positions located in Bohnam, Texas and Denver, Colorado. Id. However, according to Complainant, the Supervisory HR Specialist said he withdrew her acceptance for the Voucher Examiner positions. Contrastingly, the Supervisory HR Specialist explained that Complainant was selected for and accepted the Denver position but, a week before she was supposed to report for duty, Complainant said she was not able to move and declined the position. Id. at 427. The Supervisory HR Specialist additionally recalled that Complainant was also selected for and accepted the Voucher Examiner position in Bonham, Texas, which she later declined because her physician had not medically cleared her to return to work. Id. Prior to June 2015, Complainant was also interviewed for Voucher Examiner positions in Pearl, Mississippi. Complainant was reportedly not selected for the positions in Pearl, Mississippi because the Agency had started to process her acceptance for the Denver, Colorado position. Id. at 961. Complainant also believed that she should have initially received SF-50 documentation related to the termination of her appointment. Id. at 196. 2021000144 3 According to Complainant, she did not learn that the expiration of her term appointment was the reason for her termination until she finally received the SF-50. Id. at 209-210. In response, the Officer Manager stated that she entered an SF-50 for Complainant on September 25, 2014, when her term appointment expired and after a 90-day extension of her appointment, in accordance to HR guidance. Id. at 399. The Office Manager attested that Complainant never requested an SF- 50 from her, nor was she aware that Complainant had difficulty obtaining it from anyone else. Id. at 400. Complainant further averred that her physician released her to resume work, limiting her work hours to four hours daily starting on January 19, 2016. Id. at 171. But, according to the HR Specialist, the Agency did not have anywhere to place her and would notify her when a vacancy became available. Id. The Supervisory Program Specialist explained that Complainant was released from OWCP leave in January 2016, at which point her temporary appointment had already expired. According to the Supervisory Program Specialist, their work unit no longer had any openings to offer, as all vacancies were filled in November 2015. Id. at 449-450. On March 14, 2016, Complainant filed a formal complaint2 alleging that the Agency discriminated against her and subjected her to harassment on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. On or about May 2, 2014, the Office Manager, failed to send her to Employee Health after she reported an on-the-job injury; 2. In August 2014, the Office Manager denied her reasonable accommodation request; 3. On or about January 1, 2015, the Office Manager failed to process documentation for an extension of her temporary term appointment; 4. In approximately February or March 2015, the Office Manager terminated her from her temporary term appointment; 5. On or about July 5, 2015, the Lead Human Resources (HR) Specialist withdrew three job offers; 6. In September 2015, the Office Manager told her that a SF-50 had not been completed at the time of her termination, but one would be fabricated after the fact; and 2 Complainant maintains she attempted to file her formal complaint on January 20, 2016, as it had been 133 days since her first contact with the Agency’s EEO Office, but that the Agency rejected her formal complaint on the grounds that she had not contacted an EEO Counselor. Complainant argues that she was then made to refile her formal complaint on March 14, 2016. 2021000144 4 7. On or about January 19, 2016, the Workers’ Compensation Coordinator failed to provide her with a job upon her release from workers’ compensation. When the Agency failed to complete its investigation within 180 days of the filing of her complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). After the Agency completed its investigation, the Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ initially denied Complainant’s motion for sanctions concerning the Agency’s untimely processing of her complaint and EEO investigation. In so doing, the AJ noted that the Agency completed the Report of Investigation, which it submitted to Complainant during the hearing process. The AJ found that Complainant did not establish that she was prejudiced by the Agency’s delay and denied Complainant’s request for sanctions. In addressing the merits of Complainant’s complaint, the AJ noted, with regard to claim 1, that the Office Manager was unaware that Complainant suffered from a disability or had engaged in EEO activity when she delayed reporting Complainant’s injury to Employee Health Further, the AJ observed that Complainant herself did not initially consider her injury to be significant. In addressing claim 2, the AJ noted that Complainant’s requests for accommodations were part of her approved OWCP claim, and management actively engaged with Complainant and OWCP in trying to address her request for accommodation. The AJ observed that the Agency continued to approve Complainant’s leave in coordination with the OWCP. Regarding claims 3 and 5, the AJ found no evidence that Complainant or the OWCP sought an extension of the term before its expiration on or before January 7, 2015. The AJ further found that Complainant was never actually terminated, but rather, she was simply notified that her term had expired on January 7, 2015. Complainant continued with OWCP coverage, noted the AJ, until she was removed from it almost a year later. With respect to claim 5, the AJ stated that Complainant was offered and accepted multiple positions, more than once; she even had a start date for one position, for which she chose not to accept. The AJ determined that the Agency was not required to hold the job offers open until Complainant wanted to accept them and begin work. The AJ also found no evidence of discriminatory or retaliatory animus regarding claim 6, concerning the preparation of the SF-50. As for claim 7, the AJ concluded, in pertinent part, that the Agency was not required to create a position for Complainant under the OWCP or the Rehabilitation Act. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2021000144 5 CONTENTIONS ON APPEAL On appeal, Complainant requests that we issue a default judgment in her favor as a sanction against the Agency for its failure to timely process her EEO complaint and initiate an investigation. Specifically, Complainant argues that attempted to contact an EEO Counselor on the morning of September 9, 2015, by calling the Agency’s “EEO hotline” and leaving a voice mail message. Complainant notes that she called the EEO hotline a second time the afternoon of September 9, 2015, but there was again no answer. On September 29, 2015, when she still had not been contacted by the Agency’s EEO office, Complainant contends she called the EEO hotline a third time. Minutes later, explains Complainant, she finally received a call back from the Agency’s EEO Counselor. However, argues Complainant, the Agency’s EEO Counselor did not handle her informal EEO complaint or begin the EEO process with her. Complainant noted that, as a result, she filed her formal complaint on January 20, 2016, since it had been 133 days since her first contact with the Agency’s EEO Office. The Agency rejected her formal complaint, explains Complainant, on the grounds that there had not been an informal complaint. According to Complainant, the Agency then treated her January 20, 2016, formal complaint as an informal complaint and then finally initiated EEO Counseling with her. Complainant contends that she was then required to refile her formal complaint on March 14, 2016. Complainant additionally contends that the Agency did not assign an EEO Investigator to her case until 226 days after her initial January 20, 2016, formal complaint was filed and 172 days after her formal complaint was refiled. Complainant notes that she requested a hearing on September 16, 2016, before an AJ because the Agency had not completed the investigation within the required 180 days. Complainant argues that that the Agency provided no explanation for failing to answer the EEO hotline, return her voicemails, or initiate the EEO process in September 2015. Complainant also asserts that the Agency claimed it was unable to begin the EEO investigation in a timely fashion because it “ran out of money in its contract for investigations.” Complainant maintains that the Agency did not explain why it failed to allocate sufficient funds in its budget as required by statute. In addressing the merits of her case, Complainant maintains that she suffered a fall at work, suffering injury on May 2, 2014. She contends, however, that the Agency failed to engage in the interactive process regarding her restrictions and did not offer her any form of reasonable accommodation for her injury. Complainant asserts that in February 2016, the HR Specialist held a conference call with management officials, urging them to bring her back so she could complete her temporary assignment. But management instead chose to permanently terminate her from the Agency. Complainant also states that she applied for a permanent position to work as a Voucher Examiner in Pearl Mississippi but was not selected even though she made the “well qualified list.” Complainant believes that management personnel provided false reasons for the failure to permanently hire her, which included saying that all their permanent vacancies were filled. 2021000144 6 In response, the Agency asserts that the AJ acted within her discretion in denying Complainant’s motion for sanctions. The Agency further requests that we affirm its final order adopting the AJ’s decision finding no discrimination. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency's final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). ANALYSIS AND FINDINGS Complainant's Request for Default Judgment Complainant asserts that the AJ erred in not issuing a default judgment in her favor as a sanction against the Agency for its failure to timely process her EEO complaint and timely initiate the EEO investigation. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. Here, we find that the Agency failed to comply with the Commission's regulations. In so finding, we note that Complainant attempted to make EEO Counselor contact on September 9, 2015, and a second time on September 29, 2015. The Agency however did not initiate the informal EEO complaint counseling process with Complainant until January 20, 2016, when Complainant attempted to file her formal complaint after not being contacted by the Agency’s EEO office. 2021000144 7 We note that EEOC regulation 29 C.F.R. § 1614.105 specifies that an agency has thirty (30) days from the date of contact to complete the informal, pre-complaint counseling of an individual, and that this time frame may only be extended by a maximum of sixty (60) days with the written consent of the counselee. We also note that 29 C.F.R. § 1614.108(f) provides, in pertinent part, that, within 180 days from the filing of the complaint, the agency shall provide complainant with a copy of the investigative file, and shall notify complainant that, within 30 days of receipt of the investigative file, complainant has the right to request a hearing and decision from an AJ or may request an immediate final decision pursuant to § 1614.110 from the agency with which the complaint was filed. In the instant case, because the Agency did not complete its investigation within 180 days of the filing of Complainant’s formal complaint, Complainant requested a hearing on September 16, 2016, pursuant to 29 C.F.R. § 1614.108(f). We note that the Agency did not complete its investigation until November 1, 2016. Although the Agency failed to timely process Complainant's claims as required by regulation, we find that the Agency did not act in a manner to warrant a default judgment sanction. See, e.g. Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the agency's 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep't of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep't of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)); Anthony M. v. Dep't of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020). In the instant case, we find that there is no evidence that the Agency's delay is attributable to contumacious conduct or bad faith. As such, under the specific circumstances present, we do not find that the AJ abused her discretion in declining to sanction the Agency for its delay in processing Complainant’s complaint or completing the investigation. While we will not impose a sanction in the present case since the processing delay did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency's failure to abide by the regulations reflects negatively on the Agency's support for the integrity of the EEO process. Beatrice B. v. Dep't of Veterans Affairs, EEOC Appeal No. 2019001641 (Sept. 17, 2020) (declining to issue a sanction where following a supplemental investigation, the agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP), which monitors the federal agencies' EEO programs, of the Agency's failure to comply with the regulations regarding the timely processing of complaints. 2021000144 8 Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. We find that there are no genuine issues of material fact in dispute presented here. The record has been adequately developed, Complainant had the opportunity to engage in discovery, she was given notice of the Agency's motion to issue a decision without a hearing, and she was given an opportunity to respond. 2021000144 9 Reasonable Accommodation (Claim 2) Under the Commission's regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume for purposes of analysis only, without so deciding, that Complainant is an individual with a disability. We note that Complainant attested that she sought a reasonable accommodation to elevate her knee, which would have allowed her to return to work from being on paid leave through the OWCP. We note that the Ergonomic Coordinator did recommend a foot stool as an accommodation for Complainant, but the record reflects that Complainant’s doctor extended Complainant’s OWCP leave and she never returned to work prior to the expiration of her appointment. We find that Complainant did not establish that she was denied a reasonable accommodation for her purported disability, as alleged. Disparate Treatment (claims 3-5, and 7) 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 802 n. 13. 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, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on her protected classes, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claims 3 and 4, the Supervisory Program Specialist explained that Complainant was hired as a temporary appointee but had been out on approved leave through the OWCP when her one-year term expired. Regarding claim 5, the Supervisory HR Specialist explained that Complainant was selected for and accepted the Voucher Examiner position in Denver, Colorado. ROI, at 427. But a week before she was supposed to report for duty, Complainant said she was not able to move and declined the position. Id. The Supervisory HR Specialist additionally recalled that Complainant was selected and accepted the Voucher Examiner position in Bonham, Texas, which she later declined for not having medical clearance from her physician to return to work. Id. The Agency also noted that Complainant was not selected for a permanent Pearl, Mississippi position because she indicated that she did not wish to work the night shift and the Agency had started to process Complainant’s acceptance for the Denver, Colorado position. 2021000144 10 As for claim 7, the Supervisory Program Specialist explained that Complainant was released from OWCP leave in January 2016, at which point her temporary appointment expired. But their work unit no longer had any openings to offer, as all vacancies were filled in November 2015. Id. at 450. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant asserts that in February 2016, the HR Specialist held a conference call with management officials, urging them to bring her back so she could complete her temporary assignment. But management instead chose to permanently terminate her from the Agency. Complainant additionally maintains that she applied for a permanent position to work as a Voucher Examiner in Pearl Mississippi but was not selected even though she made the “well qualified list.” Complainant asserts that management personnel provided false reasons for the failure to permanently hire her, which included saying that all their permanent vacancies were filled. Upon review, we find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reasons were pretextual based on her protected classes or that the Agency was motivated by discriminatory or retaliatory animus. In so finding, regarding claims 3-4, there is no dispute that Complainant’s temporary term appointment expired while she continued to be on leave status under the OWCP. There is also no dispute that the Agency extended Complainant’s appointment, yet Complainant remained in leave status through the OWCP. We also note, with regard to claim 5, that there is no dispute that Complainant was not released from her OWCP leave until January 2016, and therefore she would have been unable to accept any of the Voucher Examiner positions she applied for. In addition, we can find no evidence, with respect to claim 7, that the Agency was motivated by discriminatory or retaliatory animus in not offering Complainant a position after her release from leave through the OWCP. Hostile Work Environment Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail with regard to claims 3-5, and 7. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000). Regarding claims 1, 2, and 6, we find that Complainant did not establish that the Agency’s actions were severe or pervasive enough rise to the level of a hostile work environment. CONCLUSION After careful consideration of the record and the arguments presented on appeal, we AFFIRM the Agency's final order, implementing the AJ's summary judgment decision finding no discrimination. 2021000144 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000144 12 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 April 5, 2022 Date