[Redacted], Judi S., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021003689 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judi S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003689 Hearing No. 430-2020-00327X Agency No. ARBRAGG19JUN02470 DECISION 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 May 13, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Administrative Officer at the Agency’s Communications Electronics Command Integrated Logistics Support Center in Fort Bragg, North Carolina. On August 28, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to ongoing harassment based on race (Black), disability (chronic anxiety and post-traumatic stress disorder), and in reprisal for prior protected EEO activity (prior EEO complaint ARBRAGG16NOV04600) 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. 2021003689 2 a. On or about October 29, 2018, the Deputy Director issued Complainant a management directed reassignment from Fort Bragg, North Carolina to Aberdeen Proving Ground, Maryland. From October 2018 through August 2019, the Deputy Director directed Complainant’s reassignment to Aberdeen Proving Ground even though Complainant’s current position was funded beyond what was told to her. b. On or about November 5, 2018, the Deputy Director denied Complainant’s request to extend the deadline to accept or decline the management-directed reassignment until 2019 and only granted her until November 16, 2018, to decide. c. On November 16, 2018, the Deputy Director reiterated that Complainant would be processed out of federal service, which forced her to accept the management- directed reassignment. d. On or about January 2019, Complainant found out that a named white co-worker was granted an extension to permanently change station until August 2020. e. On or about May 30, 2019, management officials issued Complainant’s permanent change of station orders, effective August 1, 2019, without information on her new duties and responsibilities. f. On June 12, 2019, the Logistics Assistance Division Chief denied Complainant’s request to extend her report for duty date to Aberdeen Proving Ground. g. On June 12, 2019, the Logistics Assistance Division Chief denied Complainant’s request for a reasonable accommodation concerning reporting to Aberdeen Proving Ground. h. On or around June 2019, the Logistics Assistance Division Chief denied Complainant’s hardship deferment to permanently change her duty even after Complainant requested reconsideration. i. From June 12 to August 12, 2019, management officials engaged in hostile, disparaging, and overt actions to force Complainant’s reassignment to Aberdeen Proving Ground, and the deny her requests for reasonable accommodation. j. On or about August 2, 2019, the Senior Command representative informed Complainant that he was ordered not to assist her in obtaining any extensions, accommodations, or relief from the management-directed reassignment to Aberdeen Proving Ground. k. On or about August 6, 2019, the Deputy Director directed Complainant to officially report her disability and request reasonable accommodation to the 2021003689 3 disability manager in order to get a reasonable accommodation which was already granted by Complainant’s immediate supervisor. l. On or about August 12, 2019, the Deputy Director directed Complainant’s supervisor to deny her request for reasonable accommodation to telecommute. m. On or about August 12, 2019, Complainant’s reasonable accommodation was denied, and Complainant was directed to reapply for the accommodation at the Aberdeen Proving Ground, Maryland office. n. On August 28, 2019, management requested that Complainant’s immediate supervisor deny Complainant’s Family and Medical Leave Act (FMLA) request. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the Agency submitted a Motion for Summary Judgment. The AJ issued, on April 19, 2021, a decision by summary judgment, over Complainant’s objections, in favor of the Agency. On May 13, 2021, the Agency issued a final decision implementing that AJ’s finding of no discrimination. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 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, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. 2021003689 4 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Reassignment Complainant testified that she was informed that her position would not be funded past September 30, 2019, which resulted in her and all impacted employees receiving a management- directed reassignment. Complainant explained that she was notified that she would be reassigned to Aberdeen, Maryland by August 1, 2019, and she was only given seven working days to accept the reassignment. Although Complainant acknowledged that her reassignment was the same position and grade as her current position, Complainant asserted that she believed her reassignment was retaliatory because of her prior EEO activity and was also based on her medical condition because she had taken leave to attend medical appointments. 2021003689 5 The Deputy Director testified that he was directed to issue the management-directed order to all impacted staff due to funding issues and that he issued about ten of these orders at the time. The Communications Electronics Command Senior Command Representative (“Senior Command Representative”) explained that while he did not issue the management-directed order, he concurred with the order because Complainant’s position was no longer funded which required her placement in a funded position in Aberdeen Proving Ground. The Senior Command Representative acknowledged that Complainant’s prior supervisor (“Fort Bragg Supervisor 1”)2 had issue with Complainant calling in sick on “numerous occasions.” However, the Senior Command Representative indicated that Fort Bragg Supervisor 1 was “very supportive” of Complainant attending medical appointments. The Senior Command Representative clarified that neither he nor Fort Bragg Supervisor 1 had any authority or involvement in determining which positions were designated as funded on the approved Table of Distribution and Allowances. Additionally, the Senior Command Representative testified that he did not became aware of Complainant’s prior EEO activity until Complainant informed him in July 2019. He also noted that Complainant’s medical condition was unknown until well after she was issued the management directed order. A copy of the notice of management-directed reassignment, dated October 31, 2018, reflects that Complainant’s position no longer had funding available after fiscal year 2019. The notice explains that Complainant would be assigned to Aberdeen Proving Ground with an effective date not later than August 1, 2019. The notice further explains that Complainant’s reassignment is “necessary to address [a] legitimate management need and was made in the best interests of the Agency.” Deadline Extension Complainant stated on November 5, 2018, she requested that management extend the deadline for her to accept the reassignment until 2019, after management could not inform her about her duties and department assignment in Aberdeen, Maryland. Complainant indicated that her request was denied, and she was given until November 16, 2018, to make a decision. Ultimately, Complainant stated that she signed the management-directed reassignment on November 16, 2018, because she would have been processed out of the federal government if she did not. Complainant also indicated that it was not until May 30, 2019, when she received her permanent change of station orders which informed her that she would be assigned to the Logistics Assistance Division. Complainant noted that on June 10, 2019, she requested another extension from the Logistics Assistance Division Chief to delay her report to Aberdeen Proving Ground. Complainant explained that she needed to remain in North Carolina and help support her son, who had special needs and was about to attend college. 2 Fort Bragg Supervisor 1 was Complainant’s supervisor from October 1, 2012, until her retirement around March 2019. 2021003689 6 Consequently, Complainant requested a hardship deferment. Complainant noted that she was hoping to work in an administrative position at Fort Bragg, as the Senior Command Representative had been working on her placement in this position since April 2019. However, Complainant was subsequently informed that there were no administrative positions available at Fort Bragg and her hardship deferment was denied. In contrast, Complainant asserted that her white co-worker (“Co-Worker 1”) was granted an extension until August 2020 to sign her management-directed reassignment. Complainant’s first level supervisor (Fort Bragg Supervisor 2)3 acknowledged that Complainant had repeatedly asked for more information and clarification about her role at Aberdeen Proving Ground. Fort Bragg Supervisor 2 explained that he followed up on Complainant’s inquiry and was informed that Complainant would be performing the same duties at the new location, however, an exact position description or title was not provided. Moreover, the Senior Command Representative explained that determinations regarding Complainant’s duties and identity of her new supervisor had not been made at the time. However, the Logistics Assistance Division Chief clarified that information about Complainant’s job title, series, duties, and location were provided in paragraph four of the management-directed reassignment issued in October 2018.4 The Logistics Assistance Division Chief further clarified that Complainant was provided, on April 19, 2019, permanent change of station worksheets to complete to gather necessary information for processing her permanent change of station, but by May 21, 2019, Complainant had not completed or submitted the necessary worksheets which resulted in issuance of the May 30, 2019 orders to report to Aberdeen Proving Ground on August 1, 2019. Nevertheless, Fort Bragg Supervisor 2 further clarified that the processing of Complainant’s reassignment differed from Logistics Assistance Representatives who are emergency essential personnel with a mobility agreement. These employees are provided mobility agreements because they are required to relocate periodically to different stations personnel on overseas assignments can return to the United States. These positions are “Mandatory Mobile” positions. Consequently, neither the employees’ positions nor employment status change even when their report to duty stations change. 3 Fort Bragg Supervisor 2 was Complainant’s first-level supervisor from March 2019 through October 2019. 4 The copy of the October 2018 notice of management-directed reassignment reflects that Complainant was informed, in paragraph one of the notice, that she was offered the position of Administrative Officer, GS-0341-09, PD # AG325921, with a duty station at Aberdeen Proving Ground, Maryland with an effective date not later than August 1, 2019. The notice further explains that Complainant’s immediate supervisor would be designated by the “ILSC” leadership. Additionally, the notice also informs Complainant that relocation expenses as a result of her permanent change of station “do not include those covered by the Defense National Relocation Program.” 2021003689 7 In contrast, Fort Bragg Supervisor 2 said that Complainant’s position did not require her to sign a mobility agreement. Specifically, the Senior Command Representative explained that Complainant was being asked to move from an administrative position at Fort Bragg where she supported regional operations, to Aberdeen Proving Grounds where her duties would support the global Command mission regardless of her assigned office. Once Complainant’s position at Fort Bragg was no longer funded, Complainant’s duty station changed to Aberdeen Providing Grounds in order for Complainant to remain employed. Regarding Complainant’s extension request, Fort Bragg Supervisor 2 explained that Complainant’s request was initially denied but was ultimately extended by thirty days once the Logistics Assistance Division Chief became aware of Complainant’s circumstances.5 Fort Bragg Supervisor 2 also acknowledged that the Senior Command Representative had sought to find ways to keep Complainant at Fort Bragg, even though he did not have the authority to do so. Specifically, the Senior Command Representative explained that he made a request to create an Administrative Assistant position at Fort Bragg, but there were no vacant positions available. The Senior Command Representative also reiterated that he never guaranteed that he could keep Complainant at Fort Bragg. However, the Senior Command Representative acknowledged that he was informed by the Assistant Communications Electronics Command G3, not the Logistics Assistance Division Chief, that he had no authority to intervene with Complainant’s management directed reassignment to Aberdeen Proving Ground, and he was directed by the Colonel (not the Logistics Assistance Division Chief) to issue Complainant a letter apologizing for any confusion caused by his actions that could have led her to believe that he could find her a funded position at Fort Bragg. Regarding Complainant’s contention that she was treated less favorably than other employees, the Logistics Assistance Division Chief noted that Complainant was given approximately a 12- month advance notice of her permanent change of station when she received the management- directed order in October 2018. In contrast, the Logistics Assistance Division Chief explained that employees on average only received four-to-six month prior notice and in some instances employees have only received sixty-to-ninety-day notice if mission-directed. With respect to Co- Worker 1, Fort Bragg Supervisor 1 clarified that Co-Worker 1 worked in the same capacity as Complainant, but Co-Worker 1 worked in a different region than Complainant and was paid at a higher grade. Additionally, the Senior Command Representative noted that Co-Worker 1 had requested a one-year extension which Complainant did not.6 5 The Logistics Assistance Division Chief explained that he initially felt that Complainant had had ample time to prepare for her permanent change of station because she accepted the management directed reassignment in November 2018. Additionally, the Logistics Assistance Division Chief noted that Complainant had not provided a specific date in her request to extend her report date. However, after further discussions, he agreed to push her report back date to September 1, 2019. 6 Contrary to Complainant’s arguments on appeal, the record reflects that Co-Worker 1 was not a valid comparator to support a prima facie case of race discrimination. Co-Worker 1 worked at 2021003689 8 Moreover, the record indicates that the Deputy Director testified that he granted Co-Worker 1’s extension because she provided medical documentation warranting an extension. In contrast, and more fully explained further in the reasonable accommodation section of this decision, Complainant did not. Denied FMLA Leave Complainant testified that management recommended denial of her FMLA leave on August 28, 2019, because she did not provide medical documentation. However, Complainant later clarified in her deposition that management ultimately approved her FMLA leave for twelve weeks with a thirty-day extension. Fort Bragg Supervisor 2 acknowledged that he initially denied Complainant’s August 28, 2019, FMLA request because Complainant was expected to report to Aberdeen Proving Ground on September 1, 2019, and would gain a new supervisor. Once Fort Bragg Supervisor 2 received confirmation that he was authorized to approve the request, he approved it. Additionally, Fort Bragg Supervisor 2 acknowledged that the Logistics Assistance Division Chief agreed with his approval. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on her race, disability or reprisal for prior protected EEO activity. Consequently, these claims are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, disability or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Reasonable Accommodation To establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide her with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A qualified person with a disability is an individual who can perform the essential functions of the position with or without an accommodation. As further discussed below, we find that Complainant is a qualified individual with a disability within the meaning of the Rehabilitation Act. Fort Hood, Texas and not Fort Bragg, North Carolina. Additionally, Co-Worker 1 works as a Logistics Management Specialist and is not an Administrative Officer like Complainant. Additionally, testimony from management officials supports that Co-Worker 1 followed all procedures for requesting reasonable accommodation while Complainant did not. 2021003689 9 Complainant testified that in 2016, she was diagnosed with chronic anxiety and post-traumatic stress disorder. Complainant explained that these conditions make it difficult for her to concentrate, complete tasks, meet deadlines, and interact with others especially when she is overwhelmed or stressed. Complainant admitted that she informed her second and third level supervisors that she had medical conditions. However, Complainant “never divulged what [her] condition was.” Complainant noted that she did not submit medical documentation reflecting her conditions until September 2019, when she submitted a request for FMLA leave. Before submitting her request for FMLA leave, Complainant stated that on August 8, 2019, she requested to telework at the recommendation of her physician. However, Complainant indicated that her request was denied on August 12, 2019, because “there was not enough time to process it before [she] was due to [her] permanent change of station [orders].” However, Complainant noted that she was informed that she could resubmit the request after she arrived at her new duty station. Complainant further noted that on August 12, 2019, she informed management that she had health conditions. However, Complainant acknowledged that she did not provide any specific information about her health. Additionally, Complainant noted that she received an email on August 21, 2019, informing her to begin the reasonable accommodation process, but Complainant indicated that she did not submit another request and went on FMLA leave instead. As further explained below, our review supports that the AJ correctly determined that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act. Contrary to Complainant’s arguments on appeal, the record reflects that management promptly responded to Complainant’s accommodation request to telework. Fort Bragg Supervisor 2 explained that after Complainant made her request, he provided Complainant the necessary forms to formally submit her request, and he arranged a July 2019 meeting with Complainant and Labor/Management Employee Relations to go over the process with Complainant. Fort Bragg Supervisor 2 noted that he likely believed that Complainant made the request to avoid her management directed reassignment to Aberdeen Camping Grounds. At the time, Fort Bragg Supervisor 2 explained that Complainant was expected to report to Aberdeen Camping Grounds by September 1, 2019 (management had extended Complainant’s initial August 2019 report date). Ultimately, Fort Bragg Supervisor 2 indicated that he did not fully grant her request, at the direction of upper management,7 because Complainant failed to specify how long she wanted to 7 However, the Logistics Assistance Division Chief testified that he did not engage with Complainant on any reasonable accommodation action as Complainant never submitted a reasonable accommodation request to him. However, the Logistics Assistance Division Chief acknowledged that Fort Bragg Supervisor 1b conferred with him about Complainant’s telework request. The Logistics Assistance Division Chief indicated that he informed Fort Bragg Supervisor 2 that he had no issue with Complainant requesting to telework at Aberdeen Proving Ground, but it did not make any sense logistically to have Complainant telework during the period she would likely be traveling from Fort Bragg, North Carolina, to Aberdeen Proving Ground, Maryland. 2021003689 10 telework. Additionally, Fort Bragg Supervisor 2 indicated that Complainant was expected to report to Aberdeen Proving Grounds in three weeks, but the approval of her telework request would have taken longer than three weeks to process. Therefore, Fort Bragg Supervisor 2 informed Complainant that she could resubmit the request with her new supervisor at Aberdeen Proving Grounds. Consequently, the Agency did not outright deny Complainant’s request. Rather, the Agency proposed addressing this request until after Complainant had relocated to Aberdeen Proving Grounds. However, as previously stated, Complainant never submitted a second request. The record indicates that during the same period Complainant requested an accommodation to telework, Complainant also filed a request for FMLA leave in late August 2019, which was subsequently granted for twelve weeks with a thirty-day extension, and she remained on unpaid leave from December 2019 through January 2021. Following Complainant’s absence, she ultimately received a new position at Fort Bragg and never reported to Aberdeen Proving Grounds. Consequently, there was no reasonable accommodation for the Agency to provide or process while Complainant was on FMLA and unpaid leave. We further note that Complainant acknowledges that she did not provide the necessary medical documentation to process her reasonable accommodation request to telework. Therefore, given the circumstances of this case, we find that Complainant failed to demonstrate that the Agency violated the Rehabilitation Act when management requested that Complainant resubmit her telework request after she reported to Aberdeen Proving Ground given that she would have been in the process of relocating to her permanent change of station at the time she had requested the accommodation. Harassment To prove her claim of hostile environment harassment, 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 a protected basis - in this case, her race, disability or reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). Complainant’s additional claim of discriminatory and retaliatory harassment as evidenced by management’s alleged denial of her reasonable accommodation request, denial of her report to duty extension to Aberdeen Proving Grounds, and the Agency’s alleged failure in allowing her to remain in a funded position at Fort Bragg, North Carolina are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her disability, race, or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 2021003689 11 CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. The Agency’s final order implementing the AJ’s decision is AFFIRMED. 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. 2021003689 12 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. 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 January 31, 2023 Date