[Redacted], Jefferey G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2020001176 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020001176 Hearing No. 560-2018-00145X Agency No. 200J-0657-2016103705 DECISION On November 13, 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 October 29, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patient Transporter, GS-0622-03, at the Agency’s St. Louis VA Health Care System, John Cochran Division facility in St. Louis, Missouri. On August 10, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and/or harassment on the bases of race (Black), sex (male, LGBTQ),2 and/or reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 2020001176 2 1. During the past 15 months, co-workers made comments such as “we have no problem working with homosexuals.” 2. On July 13, 2016, Complainant asked his co-worker (CW1) about diversity training and she stated it mostly centered on LBGTQ issues and the instructor was off-base and spoke as if she and the other heterosexual staff members were third grade retards. 3. On July 26, 2016, a co-worker (CW2) complained to Complainant that he had the computer volume up too loud while he was watching a video on race relations in America. 4. On July 27, 2016, a registered nurse (RN1) yelled at Complainant in a loud and aggressive tone, blocked his exit, made reference to his sexual orientation, and made comments such as “don’t give me any of your sassiness.” 5. On May 16, 2016, Complainant was not selected for the position of Supply Technician, GS-2005-05, under vacancy announcement STL-T5-16-GC-1598672- BU. 6. On August 2, 2016, after Complainant reported the incident with the RN1, he was detailed to another department. 7. On September 9, 2016, a supervisor (Supervisor) spoke to Complainant about his failure to communicate with co-workers, telling him that his behavior would be addressed in his yearly performance evaluation. 8. On October 28, 2016, Supervisor accused Complainant of not answering his cell phone. 9. On November 21, 2016, Supervisor denied Complainant overtime. 10. On January 18, 2017, Supervisor asked Complainant about his meeting and informed him that he must inform her first before he leaves for any meetings during his work tour. 11. On October 28, 2016, a co-worker (CW3) made derogatory statements to Complainant with regard to his being a gay man, stating “[Complainant], do you have a problem with me?,” “I feel you need to express yourself if you have problems with people,” “I do not want you to be [intimidated] but you need to speak up and be a real man,” and “you need to be a real man.” 12. On March 25, 2017, Complainant received a proposed removal. A letter dated July 6, 2017, the Agency notified Complainant of its final decision to remove Complainant from employment for conduct unbecoming a federal employee and offensive language. The Agency accepted the complaint and conducted an investigation, which produced the following pertinent facts: (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020001176 3 Regarding his alleged basis of reprisal, Complainant attested that he had prior EEO activity in February 2016 and the Acting Quality Management Officer (Officer), a responsible management official in the instant case, was involved with the prior case. Complainant attested his prior EEO activity also included the instant case. Officer acknowledged being involved in Complainant’s prior EEO activity regarding a non-selection claim. Regarding claim (1), Complainant attested that, when he asked CW1 about the Diversity Training in July 2016, she stated “we have no problem working with homosexuals.” He attested that no other co-worker made similar comments to him and CW1 only said it to him once. The Associate Director of Patient Care Services (Director) attested that there was a female nurse who said during a conversation with Complainant that “we have no problem working with homosexuals in the OR.” CW1 attested that she never made this comment but, when Complainant brought up how Agency employees have difficulty working with the LGBT community, she heard OR staff say, “We have no problems working with homosexuals.” Regarding claim (2), Complainant attested that, on July 13, 2016, he asked CW1 about diversity training and she stated that it mostly centered on LGBTQ issues and the instructor was off-base and spoke as if she and the other heterosexual staff members were third grade retards. Complainant attested that he made a Report of Contact (ROC) and gave it to Officer, but nothing was done. CW1 attested that she made a comment similar to “it was geared more towards my son’s third grade boy scout troop than to experienced health care professionals.” CW1 also attested that she would never refer to anyone as a “retard” and denied using that word. Officer attested that she is aware of this incident. She attested that CW1 was providing feedback on the training and several of the staff felt as though they were being treated as third graders. She attested that she informed the EEO Program Manager about the feedback as an opportunity for improvement on the training. Regarding claim (3), Complainant attested that, on July 26, 2016, CW2 complained to Complainant that he had the computer volume up to too loud while he was watching a video on race relations. Complainant attested that he completed a ROC and gave it to Officer, but management did nothing. Officer attested that she was aware of this due to the ROC. Chief Nurse attested that Officer informed her of the event. Regarding claims (4) and (6), Complainant attested that, on July 27, 2016, he was on the phone in the library when Chief Nurse told him that he was needed for a patient transport. He attested that, when he arrived at the OR, RN1 asked him, “Where in the hell were you?” and stated that he did not want to hear Complainant’s bullshit and told him to quit sassing off to him. 2020001176 4 Complainant attested that he replied and told him, “You will not talk to me that way,” and tried to leave, but RN1 blocked the exit and Complainant’s ability to move out of the area. Complainant attested that he asked if RN1 was detaining him and RN1 told him to “go over there and get the damn patient.” Completed attested that he completed a ROC and gave it to Officer, Director and Chief Nurse. Complainant attested that, subsequently, he was detailed to Patient Transport. He attested that the detail was due to the fact-finding investigation and he was charged with disorderly conduct. Complainant attested that he was detailed again on February 21, 2017 by Director after he verbally asked her for a reasonable accommodation due to mental, emotional, and physical harassment and he was detailed to the Environmental Service Management (EMS) while management conducted a fact-finding investigation. Officer attested that she was aware of this incident, a fact finding was conducted, and appropriate action was taken with the individuals involved. She attested that, due to his behavior, Director detailed Complainant to the Hospital Transport Service and the detail was to be four months. She attested that Complainant also received a 14-day suspension related to inappropriate conduct and volatile behavior over a period of time, to include the incidents referenced in this complaint. RN1 attested that, on July 27, 2016, Complainant could not be found for almost two hours of multiple phone calls and notifying the supervisor. RN1 attested that, after multiple calls, he saw Complainant at the front desk, and he asked Complainant to transport a patient. RN1 attested that Complainant denied receiving any calls and RN1 told him that his phone was off because it went straight to voice mail. RN1 attested that Complainant told him that he was on break and asked why he did not believe him. RN1 attested that he told Complainant that it was not important and that he needed him to transport the patient. RN1 attested that Complainant became upset and screamed, “Yes, Sir! Mr. RN, Sir! Mr. Registered Nurse, Sir!” and he told Complainant that he did not need “the sass” and that Complainant’s comments were inappropriate and were not needed or warranted. RN1 described a series of events during which Complainant slammed on the brakes on the stretcher and walked back to RN1. RN1 attested that Complainant was screaming and when he asked Complainant where he was going, Complainant said “upstairs” and that no one ever talks to him that way. RN1 attested that Complainant backed him up to the button on the wall and RN1 asked Complainant if he was abandoning the patient. RN1 attested that Complainant screamed, “Are you detaining me [RN1]?” and RN1 replied that he was not physically detaining him. RN1 attested that Complainant walked by and hit him with his shoulder. RN1 attested that he notified Chief Nurse. RN1 attested that he used the word “sass” because he has two toddler girls and he used that word with them. Director attested that RN1 attempted to contact Complainant for over 30 minutes and an investigation revealed Complainant was on the phone with HR for almost an hour. 2020001176 5 She attested that Complainant was not on break or lunch and had taken the battery out of his phone. She attested that RN1 did not remark about Complainant’s sexual orientation but did tell Complainant not to give him any “sassiness.” Director attested that she detailed Complainant to the general hospital transport due to his disruptive behavior. She also attested that the police cited Complainant for disorderly conduct. Director attested that she makes the determination regarding detailing based on who was the aggressor, after an investigation. She attested that Complainant was detailed to EMS on February 21, 2017, due to aggressive behavior again at a luncheon for a deceased co-worker. She attested that Complainant “went off” and stated, “you guys don’t care about me, you don’t care about my health if you brought that kind of food in here to eat.” She attested that Complainant was being very aggressive and made aggressive comments toward Supervisor. She attested that he then went missing and it was discovered that he went to mental health. Director attested that management used progressive discipline and Complainant had been previously suspended for aggressive behavior. Supervisor attested that, on February 16, 2017, management held a potluck for the staff due to an employee passing away unexpectedly. She attested that Complainant did not want to participate and was pacing in and out of the room not saying anything to anyone. She attested that an employee asked Complainant to fix a plate and eat and Complainant “blew up” and looked at Supervisor, pointing and yelling that he was not going to eat with her, he was going to write her up, and then said he had to leave before he hurt her. She attested that, at the same time, he was called for a transport and did not answer the phone. Supervisor attested that she called her supervisor and told her that she did not feel safe. She attested that Complainant went to the Emergency Room and said he was having a breakdown due to the sight of Supervisor, which caused his anger. A Memorandum dated August 2, 2016 from Director to Complainant indicates that Complainant was being detailed to work in the Nursing Transport Section in Surgical Operations Service, effective immediately. A Memorandum dated February 21, 2017 from Director to Complainant indicates that Complainant was on a temporary detail to EMS, pending reasonable accommodation and fact finding investigation. Regarding claim (5), Complainant attested that he applied for a Supply Technician position in February 2016. He attested that the Nurse Manager put in a reference for one of the applications in the OR but not him and, when he questioned her, she told him that, had she known he had applied, she would have put in a good word for him too. 2020001176 6 Complainant attested that he was found qualified for the position but was not interviewed. He attested that he believed he was not chosen for an interview because the impression he got from the Nurse Manager was that she preferred women over him, based on changes in her body language and attitude when he came around. He also attested that the Nurse Manager made comments that he did not have to be so opinionated about LGBTQ issues and that two other co- workers were not affected by their sexual orientation so why should he be. He attested that she also said that maybe he was affected because he was black. The Administrative Officer attested that she had never met Complainant and she received his resume along with 43 others to do a Best Qualified review for the Supply Technician position. She attested that, in so doing, she compared all 44 resumes to the Factor Quality Level Definitions and 23 applicants were qualified, 5 of whom were referred to the Selecting Official. She attested that, in order to advance in the process, the applicants needed a score of 10 or higher and Complainant scored a 9 because he did not have knowledge of an automated computerized supply/inventory management system and familiarity with Microsoft Office software programs. She attested that Complainant was not among the 23 qualified applicants on the certificate, therefore, his name was not sent to the interview panel. She also attested that she did not know the Nurse Manager and did not receive any recommendations for any of the applicants. The Nurse Manager attested that Complainant became upset when two of his co-workers were selected for the position at issue. She attested that Complainant made a verbal accusation toward her regarding this. She attested that she was not aware that Complainant had applied for the position until the other two were selected. She attested that she only received reference checks on the two employees that were selected. She attested that she has no authority on who gets hired in other departments. Regarding claim (7), Complainant alleged that, on September 9, 2016, Supervisor spoke to him about his failure to communicate with co-workers and told him that his behavior would be addressed in his yearly performance evaluation. Complainant believed that she meant that, if he was not nice to people, she would hold it against him. Supervisor attested that a few staff members were concerned that Complainant was not responding to requests for patient transports. She attested that she contacted Complainant to go over the expectations of all transporters. She attested that she also went over the performance measures of the transported. She explained that there are three critical elements and explained that one of them was customer service for internal and external customers. She attested that she let him know that customer service was a part of his yearly evaluation. Officer attested that Supervisor made her aware that Complainant was ignoring his co-workers and would not acknowledge them to indicate if he understood the run to transport a patient or to pick up a patient. She attested that he would stare and walk away from his co-workers without acknowledging them and his co-workers did not know if he would take the assignment, which caused them to send another person to take it. 2020001176 7 Officer attested that working collaboratively with peers is a component of customer service and a critical element in Complainant’s performance appraisal. Regarding claim (8), Complainant alleged that, on October 28, 2016, Supervisor accused him of not answering his cell phone. He attested that, on that day, he was transporting a patient and talking to a nurse about picking up labs and his phone rang about 3 times. He attested that, when he picked up the phone, Supervisor told him that she had been trying to call him and the phone was ringing 20 times. He attested that he disagreed with her and said he was not unprofessional and would not let his phone ring 20 times. Supervisor attested that, earlier in the day, Complainant had an altercation with a co-worker, CW3, who had tried to call Complainant to dispatch a patient transport, but Complainant did not pick up the phone. Supervisor attested that she used her deck phone to call Complainant multiple times and he did not answer, but when she called from a different phone, he answered. She attested that she told him that he needed to discuss a concern about him not answering the phone and advised him to get his union representative to come with him to her office. Officer attested that Supervisor advised her that Complainant was not answering his phone when she called from her office, but he did answer when she called him from a different phone number. Regarding claim (9), Complainant alleged that, on November 21, 2016, Supervisor denied him overtime and that he was the only person she denied overtime. He reported that she told him that, due to a fact finding for an incident of sexual harassment that he had alleged on November 17, 2016, she would not grant him overtime. Supervisor attested that she did not recall denying Complainant overtime on that date, but if overtime was not needed, overtime would be denied. Officer attested that she was informed about an incident involving Complainant and, while the fact finding was being conducted, Supervisor told him that he could not request overtime. Officer attested that she informed Supervisor that Complainant was allowed to request overtime. Regarding claim (10), Complainant alleged that, on January 18, 2017, he stopped in the EEO Office to speak with the EEO Program Manager and Supervisor called him and told him that he had abandoned his post. He attested that he explained to her that this was a 2-minute unscheduled meeting during his down time and that she advised him that he needed to request leave for such meetings. Complainant attested that other employees did not need to request leave. Supervisor attested that, on January 18, 2017, she told the staff that anyone who leaves their duty station for any reason other than lunch or breaks needs to notify her. She attested that, on the day at issue, Complainant was called to dispatch a trip and he told the dispatcher that he was in a meeting and could not take the trip. Supervisor attested that she called Complainant because she did not know that he had a meeting. 2020001176 8 Supervisor attested that he said he was not really in a meeting and he just stopped by the EEO Office. She attested that she explained to him that it was his right to go, but he needed to let her know because they needed to care for the patients. Complainant’s co-workers attested that Supervisor advised all of the employees that she needs to know when they leave their tour of duty to attend a meeting. One co-worker attested that she also advised them about using leave for appointments and meetings. Regarding claim (11), Complainant alleged that CW3 made derogatory statements regarding his being a gay man, as indicated above, including statements that he needed to be “a real man.” Complainant alleged that CW3 also told him that she knows of gay men who do not talk as much as he does. Complainant attested that he completed a ROC for this event. Supervisor and Officer attested that they were aware of this alleged event. Supervisor attested that she attempted to counsel both employees, but only CW3 would talk to her about it. CW3 attested that she never made these statements. Regarding his removal, Complainant attested that he explained to Director that he was under stress due to the continued harassment from Supervisor and his sudden outburst was caused when he saw the Nurse Managers not acknowledging the staff that were in mourning over the sudden death of a co-worker. Director attested that Complainant does not take responsibility for his actions and he does not understand that he has to be accountable for his behavior. A Proposed Removal dated March 22, 2017 indicates that it was proposed that Complainant be removed from the Agency for conduct unbecoming a Federal employee and offensive language. There were two specifications of conduct unbecoming a Federal employee and two specifications of offensive language. A Decision Letter dated July 6, 2017 indicates that a decision was made to remove Complainant for the charges indicated in the proposed removal. A Summary Findings report by Officer indicates that there were incidents within and outside the OR where Complainant’s behavior escalated to bullying, intimidation, and causing a hostile work environment to employees at all levels. It indicates that Complainant’s response and reaction is aggressively loud and intimidating to the staff. Regarding the creation of a hostile work environment, the report provides examples of Complainant’s contribution towards the creation of a hostile work environment, intimidation of staff, disorderly conduct, violating privacy of staff, lack of performance, negatively impeding patient care, and providing a false statement. Based on the evidence developed during the investigation, 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. 2020001176 9 The instant appeal followed. On appeal, Complainant asserts that there were “multiple errors stated in the Decision to Remove [him] letter.” In support of his appeal, he submits statements explaining his allegations; witness statements that generally attest to his character, communication skills, and workplace behavior; evidence that was previously of record; and a copy of the letter advising him of the Agency’s decision to remove him. In response, the Agency argues that Complainant does not present any direct evidence of discrimination. It argues that its final decision (FAD) thoroughly and accurately detailed the relevant facts and applied the appropriate legal standard to those facts. It also asserts that Complainant, on appeal, advances nothing to undermine the ultimate conclusions in its FAD. ANALYSIS AND FINDINGS Standard of Review 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”). Harassment Claim To establish a claim of hostile environment 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, a complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in the complainant's position would have found the conduct to be hostile or abusive. A complainant must also prove that the conduct was taken because of a protected basis -- in this case, Complainant’s race, sex, sexual orientation and/or prior protected EEO activity. 2020001176 10 Only if a complainant establishes both of those elements -- hostility and motive -- will the question of agency liability present itself. Some of Complainant’s harassment allegations reflect general workplace disputes and his disagreement with managerial decisions, such as detail assignments, non-selection for a position, overtime denial, and removal. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age). We also find some of Complainant’s allegations reflect personality conflicts with co-workers, general workplace disputes, or petty annoyances with his supervisor, which also are insufficient to support a claim of harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, we also find some of Complainant's allegations involve verbal disagreements with other Agency employees and reflect his objection to being spoken to inappropriately or in an otherwise displeasing manner. We also find these allegations are insufficiently severe or pervasive to have altered the conditions of his employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). While the record establishes that Complainant was engaged in numerous verbal disagreements at the workplace, we decline to find any of the alleged statements, alone or in combination, were so offensive to alter the terms and conditions of his employment. Therefore, we find Complainant has failed to establish a claim of discriminatory harassment. Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020001176 11 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant’s allegations regarding the non-selection, being detailed, the denial of overtime, and the removal give rise to disparate treatment claims. However, even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Administrative Officer explained that Complainant was not selected to be referred to the selecting official because he was not among the best qualified, particularly as he lacked knowledge of an automated computerized supply/inventory management system and familiarity with Microsoft Office software programs. Regarding being detailed, the Agency explained that Complainant was detailed on August 2, 2016 and February 21, 2017 because of his disruptive behavior and, in February 21, 2017, his detail was pending a reasonable accommodation and fact-finding investigation. Regarding the denial of overtime, Supervisor explained that overtime is not granted when it is not needed. Regarding his removal, the record shows that Complainant was removed for conduct unbecoming a Federal employee and offensive language, as noted above. Although Complainant alleges that he was discriminated against based on his race, sex, sexual orientation, and/or prior protected EEO activity, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. 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. 2020001176 12 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). 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. 2020001176 13 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation