[Redacted], Nakesha D., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022003095 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nakesha D.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2022003095 Hearing No. 520-2020-410X Agency No. GSA-20-R2-P-0020 DECISION Following its May 13, 2022 final order, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. In the alternative the Agency requests that the Commission modify the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Realty Specialist/ Lease Contracting Officer (GS-12) at the Agency’s Leasing Division, Region 2 in New York, New York. Complainant applied for the position of a GS-13 Asset Manager position on or around September 7, 2019, and she participated in an initial interview on October 8, 2019. Report of Investigation (ROI) at 59. 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. 2022003095 2 Complainant was not referred for a second interview, and she learned of her non-selection when the Selecting Official sent out an email introducing the Selectee (age 39, no disability, White, male) on January 21, 2020. ROI at 148, 59, 661. On December 4, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian/Pacific Islander), national origin (Filipina), sex (female), color (tan complexion), disability, and age (42),2 when on October 9, 2019, Complainant was not referred for further consideration for the Asset Manager (GS-13) position advertised under vacancy number 1902210MMMP. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency filed a Motion for Summary Judgment, which the AJ denied on August 8, 2021. On August 11, 2021, the AJ issued a decision to grant adverse inferences in Complainant’s favor based on the Agency’s failure to maintain and produce relevant documents. The AJ noted that the missing documents included interview documents and notes taken by the interview panel members and the crux of the missing documents related to Complainant’s performance during the first round of interviews. Construing the missing documents in Complainant’s favor created an inference that they would have reflected positively on her interview performance. Accordingly, the AJ determined that the appropriate adverse inferences were: (1) Complainant performed well during the first-round interview; and (2) based on Complainant’s positive first- round interview performance, Complainant would have advanced to the second round of interviews. The AJ held a virtual hearing on January 12, 2022, and subsequently issued a bench decision on January 18, 2022, finding that the Agency discriminated against Complainant based on color, national origin, and race when it did not select her for the Asset Manager position. The AJ found that Complainant established a prima facie case of discrimination because the Selectee was outside of her protected categories. The AJ then noted the Agency’s proffered legitimate, nondiscriminatory reason for choosing the Selectee was based on his superior interview performance. However, the AJ determined that Complainant established pretext for discrimination. The AJ found that there were no quantitative or objective angles to assessing interview performance, and each panelist essentially used their own “system” for evaluating the candidates. Further, their testimony was inconsistent. For example, the Selecting Official testified that the other two panel members gave him their scores and ranking of the candidates, but they both denied using scores or rankings. 2 Complainant withdrew her age claim at the start of the hearing. 2022003095 3 In addition, the Selecting Official had very little recall of key events and provided testimony at the hearing that was in conflict with, or at least inconsistent with, his deposition testimony. Accordingly, the AJ found that the Selecting Official was not credible on many central issues. The AJ noted that Agency witnesses only offered general and conclusive testimony that Complainant’s interview performance fell in the middle of the pack, with none having recall of the specific reasons why Complainant was not selected or how they determined who would advance to the second round of interviews. Further, the previous adverse inferences, in addition to the evidence of the Selecting Official’s discrimination, bolstered the claim that Complainant would not have been selected even if she participated in the second round of interviews. The AJ concluded that, collectively, the evidence established pretext for discrimination. In addition, the AJ determined that the evidence showed that Complainant’s qualifications were demonstrably superior to the Selectee’s. Specifically, Complainant had more experience regarding the essential responsibilities of the Asset Manager position, as demonstrated by her significant expertise and relationships within the New York region. To compare, the Selectee had four years of experience at the Agency’s Texas office dating back to 2010. While the Selectee had some relevant experience from his time in the private sector, it did not match the experience and qualifications of Complainant. The AJ concluded that Complainant demonstrated by a preponderance of the evidence that the Agency discriminated against her based on her color, national origin, and race when it did not select her for the Asset Manager position. The AJ conducted a damages hearing on March 17, 2022, and issued a decision on April 4, 2022. For Complainant’s request for non-pecuniary compensatory damages, the AJ awarded $170,000 based on Complainant’s testimony. The AJ noted that Complainant suffered physical effects of hives on her face, neck, and arms, which only occurred after the non-selection. Complainant also experienced headaches, hair loss, an exacerbation of insomnia, and a loss of energy and appetite resulting in a loss of 10% of her body weight. Complainant also testified to severe emotional and mental harm, such as feelings of rejection by the Agency and a devaluation of her work and experience. Complainant also felt anger, frustration, depression, humiliation, anxiety, deflated self-esteem, and loss of self-respect. In addition, Complainant’s personal life was affected when she ceased socializing with her friends and lost interest in running. Complainant began to see a psychiatrist who diagnosed her with anxiety and depression. Complainant was prescribed medication for her anxiety, depression, hives, and high blood pressure. The AJ highlighted that the record was devoid of any evidence of any other significant stressors in Complainant’s life during the relevant period. The AJ also awarded therapy costs of $300 per session from January 8, 2021, through December 17, 2022. Since the discrimination was a non-selection, the AJ analyzed if the Agency demonstrated by clear and convincing evidence that, absent the discrimination, it would not have selected Complainant for the position. Based on the adverse inferences and Complainant’s superior qualifications, the AJ concluded that she would have been selected for the position. 2022003095 4 As such, the AJ concluded that Complainant was entitled to be placed into the position and awarded backpay from the date that the Selectee started the Asset Manager position. The AJ also found that Complainant credibly testified to taking annual and sick leave due to the effects of the non-selection and ordered restoration of 216 hours of annual leave and 48 hours of sick leave. The Agency subsequently issued a final order rejecting the AJ’s finding that Complainant proved that the Agency subjected her to discrimination and filed the instant appeal. In addition to challenging the AJ’s finding of discrimination, the Agency, in the alternative, appeals the awarded damages. Complainant opposed the Agency’s appeal.3 ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, at § VI.B. (Aug. 5, 2015). The AJ found that the Selecting Official was not credible on many central issues based on inconsistent and conflicting testimony, which neither party challenged on appeal. As such, we accept the AJ’s credibility determination for the Selecting Official. We note that the Agency only disputes the AJ’s finding that Complainant’s qualifications were plainly superior in the finding of discrimination and the award of $170,000 in non-pecuniary compensatory damages in its appeal. The Commission has the discretion to review only those issues specifically raised in an appeal. See id., at Chap. 9, § IV.A.3. As such, we will only address the identified issues raised by the Agency in its appeal brief. 3 Both parties submitted additional statements on appeal. Commission regulations provide that an agency has 20 days to submit a brief after filing its appeal with the Commission and an opposition brief must be filed within 30 days of receipt of the supporting statement. 29 C.F.R. § § 1614.403(d), 1614.403(f). Here, the Agency and Complainant provided timely initial briefs, but their subsequent briefs were untimely; as such, we will not consider their untimely briefs. 2022003095 5 Non-Selection The Agency argues that the AJ erred in finding that Complainant was more qualified than the Selectee. In a non-selection case, pretext may be found where the complainant’s qualifications are plainly superior to the qualifications of the selectee. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). In this case, the AJ determined that Complainant’s qualifications were plainly superior to the Selectee’s qualifications based on her significant expertise and relationships within the New York region, while the Selectee had four years of experience at the Agency’s Texas office dating back to 2010. The AJ found that the Selectee had some relevant experience from his time in the private sector, but it did not match the experience and qualifications of Complainant. During the hearing, Complainant provided extensive testimony to explain her qualifications and skills. Complainant averred that she worked with fifteen to twenty agencies and managed over 300,000 square feet of space. As a Lease Contracting Officer, Complainant was given more complex projects with more complex requirements, such as vault rooms and gun ranges. Complainant asserted that the New York market was unique and her experience working with other Asset Managers enabled her to learn the market well. Complainant also testified that she was already performing many of the duties of an Asset Manager in position as a Lease Contracting Officer, such as performing financial analyses. Hearing Transcript at 23, 25-6, 30. The Agency argues that that Agency employees testified to the skills and interview performance of the Selectee, and the AJ relied solely on Complainant’s personal assessment of her qualifications and skills. However, we find that the Agency only offers conclusory statements and cites to no evidence to show that the responsible management officials considered “experience and depth of performing the position” when making their selection. As noted above, the parties did not challenge the AJ’s determination that the Selecting Official was not credible on key issues. As such, we will examine the testimony provided by the two other interview panelists, a Supervisory Asset Manager and a Building Manager. The Supervisory Asset Manager testified that the advanced candidates gave the “strongest answers,” but she did not “recall details of their answers.” Hearing Transcript at 240. In her affidavit, the Supervisory Asset Manager responded that Complainant’s “answers for the most part were fair, but did not demonstrate a great knowledge of the subject areas.” ROI at 208. The Building Manager stated in his affidavit that Complainant “did not answer several questions completely” and “failed to provide sufficient detail to demonstrate her readiness for the position.” In addition, Complainant’s answers to questions 3, 4, and 5 were “vague, lacked sufficient detail and did not relate as well as to the position as some of the other candidates.” ROI at 306. In his deposition, the Building Manager responded that he was unable to remember any specifics for the conversations he had with the Selecting Official and the Supervisory Asset Manager. Regarding Complainant, he asserted that he “can’t remember any specifics.” Building Manager Deposition at 75, 85. 2022003095 6 During the hearing, the Building Manager testified that they advanced the candidates who were “in total overall the best qualified,” but there “was nothing like a specific thing” to determine that a candidate was more qualified than Complainant. When asked if he could provide any specific details regarding Complainant’s non-selection, he responded, “no.” Hearing Transcript at 299, 302. The Building Manager also testified that there was only one candidate who had prior experience doing “the exact job” at the Agency and had provided interview responses that were “all relevant and complete and thorough.” Hearing Transcript at 303-4. While the Building Manager did not identify this individual as the Selectee, we find that the Selectee’s resume shows that his prior position with the Agency was as a GS-12 Asset Management Specialist, and the vacancy at issue was for a GS-13 Asset Manager. ROI at 636, 75. The Agency asserts that the management officials placed importance on the Selectee’s prior experience with the Agency as an Asset Manager, but it cites to no evidence in the record to show that the Selectee previously held an Asset Manager position at the Agency. Complainant provided substantial evidence of her superior qualifications through her testimony at the hearing while the Agency’s witnesses were largely unable to recall any specific reasons for their decision. Further, they were unable to provide any evidence to refute Complainant’s testimony or any proof regarding their evaluation of Complainant’s qualifications at the time of the non-selection. At best, the Building Manager testified that the Selectee previously held the same position with the Agency, but the evidence does not support his belief. We find that the Agency did not establish that the AJ erred when finding that Complainant proved that she possessed superior qualifications for the position at issue. Accordingly, we REVERSE the Agency’s final order rejecting the AJ’s determination that Complainant established that the Agency discriminated against her based on her color, national origin, and race, when it did not select her for the Asset Manager position. Non-Pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See EEOC Notice No. 915.302, Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, at 10 (July 14, 1992). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep’t of the Treasury, EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish an agency for the discriminatory action. 2022003095 7 Furthermore, compensatory damages should not be motivated by passion or prejudice or be “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward- Jenkins v. Dep’t of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning her emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain her burden in this regard. Id. The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. The Agency contends that the award of non-pecuniary compensatory damages is excessive. The Agency notes that the AJ acknowledged that Complainant relied almost solely on her own testimony to support her damages claim. However, there was inadequate medical documentation to support the causal connection between her symptoms and the discrimination to support the size of the award. Complainant’s testimony evidence regarding her physical and emotional harms is sufficient to sustain her burden to establish the harms and the connection between her harms and the Agency’s discrimination. While the Agency asserts that the compensatory damages award was largely based on her own testimony, a Coworker also provided testimony to corroborate Complainant’s harms. For example, the Coworker averred that he witnessed Complainant experiencing stress; a loss of confidence and decreased morale; and feeling undermined following the non-selection. Damages Hearing Transcript at 133-4, 141. As such, Complainant’s damages were not solely based on her own testimony. Regarding the lack of medical documentation, the AJ acknowledged this when awarding $170,000 in non-pecuniary compensatory damages. The AJ relied upon six cases awarding between $150,000 through $200,000 to complainants who suffered similar harms. 2022003095 8 While the Agency contends that $170,000 was excessive and provides other cases with smaller awards of non-pecuniary compensatory damages, we find that the Agency simply disagrees with the AJ, but it did not prove that the AJ’s award was excessive as it provides no arguments that the AJ erred when relying upon the cited cases in the decision. We further find that the Agency did not demonstrate that the AJ’s award was “monstrously excessive” since two of the cases that the Agency relies upon (Goodridge v. Social Security Admin., EEOC Request No 0520070216 (Feb. 27, 2007) and Miguel G. v. U.S. Postal Serv., EEOC Appeal No. 2020000182 (Mar. 4, 2020)) awarded the complainants $150,000 in non- pecuniary compensatory damages, only slightly less than the AJ’s award of $170,000. The Agency also argues that the damages are punitive, but it offers no arguments to explain how the AJ’s award was punitive. The Agency only reiterates its contentions that the award was not supported by medical evidence. We find that the Agency did not establish that the AJ erred in awarding $170,000 in non-pecuniary compensatory damages, and we REVERSE the Agency’s final order rejecting the award. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final order rejecting the AJ’s finding of discrimination and award of $170,000 in non-pecuniary compensatory damages. ORDER (D0617) The Agency is ordered to take the following remedial action: I. Within 30 calendar days of the date of this decision, the Agency shall pay Complainant $170,000 as non-pecuniary compensatory damages. II. Within 30 calendar days of the date of this decision, the Agency shall pay for Complainant’s therapy costs incurred from January 8, 2021, through December 17, 2022. III. Within 30 calendar days of the date of this decision, the Agency shall restore 216 hours of annual leave and 48 hours of sick leave to Complainant. IV. Within 30 calendar days of the date of this decision, the Agency shall retroactively, from the date of Complainant’s non-selection, place Complainant in the Asset Manager position, equivalent to that advertised under Vacancy Announcement number 1902210MMMP. Complainant shall be provided with any initial training typically provided for those new to the Asset Manager position. If the relevant position is unavailable, Complainant shall be placed in a substantially equivalent position of the same pay grade. In such circumstances, the parties are to work together as feasible to jointly identify an appropriate and comparable 2022003095 9 position for which Complainant qualifies. Where instatement is not immediately available, she shall be awarded front pay until the date she is awarded the position in question or a substantially equivalent position. V. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision was issued. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." VI. Within 90 calendar days of the date this decision is issued, the Agency shall provide four hours of in-person or interactive EEO training for the Selecting Official, Supervisory Asset Manager, and Building Manager.4 The training shall emphasize management officials’ obligation to not discriminate against employees when making selections for vacant positions. VII. Within 60 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against the Selecting Official, Supervisory Asset Manager, and Building Manager. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). VIII. The Agency shall immediately post a notice in accordance with the paragraph below. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 4 The Selecting Official’s identity is found on page 138 of the ROI. The Supervisor Asset Manager’s name is on page 201, and the Building Manager’s name is on page 300 of the ROI. 2022003095 10 POSTING ORDER (G0617) The Agency is ordered to post at its Leasing Division, Region 2 facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). 2022003095 11 If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022003095 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 February 2, 2023 Date