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

Equal Employment Opportunity Commission

Aug 3, 2022

Appeal No. 2021002224 (E.E.O.C. Aug. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheila O.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002224 Hearing No. 541-2020-00100X Agency No. ARCMA19AUG03075 DECISION On February 26, 2021, 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 February 8, 2021, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Public Affairs Specialist, GS-1035-12, at the Chemical Depot in Pueblo, Colorado. On September 23, 2019, (and subsequently amended), Complainant filed a formal EEO complaint alleging that the Agency2 subjected her to discrimination and a hostile work 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 Complainant identified the following responsible management officials: the Mission Operations Director who was Complainant’s first-line supervisor until July 1, 2019 (S1a); the Public Affairs Service Chief who became Complainant’s first-line supervisor on July 1, 2019 (S1b); the Deputy Commander of the Depot (S2) and the Commander of the Depot (S3). Although S1b had given a 2021002224 2 environment on the bases of (severe anxiety disorder, attention-deficit hyperactivity disorder(ADHD)) and in reprisal prior protected EEO activity as evidenced by multiple incidents, including: a. Between March and August 2019, S1a and S1b denied Complainant’s requests for overtime while granting overtime to a coworker (CW1); b. On July 16 and 18, 2019, S1b had a coworker (CW2) call Complainant at home while Complainant was on approved sick leave; c. On August 5, 2019, S2 sent Complainant an email telling her to remove the word “Chief” from her title; d. Between August 5 and 12, 2019, S1b transferred several primary functions documented in Complainant’s position description to CW1; e. On August 6, 2019, S1b yelled at Complainant, “look at me when I’m talking to you,” in front of Complainant’s coworkers; f. On August 8, 2019, S1b walked into Complainant’s office and made a statement about a suspicious package that was found and ordered Complainant to shelter-in- place, but did not tell Complainant when the shelter-in-place order had ended; g. On August 8, 2019, while Complainant was out on approved sick leave, S1b sent her an email informing her that if she missed work the next day, she would need to present a doctor’s note documenting her absence when she returned to work; h. On August 12, 2019, S1b denied Complainant’s verbal request to telework or change her schedule as reasonable accommodations; i. On August 20, 2019, S1b sent Complainant an email informing her that her performance objectives would not be changed; j. In August 2019, S1a had not provided Complainant with a monetary performance award for the rating period that ran from June 1, 2018 through May 31, 2019; k. On August 21, 2019, S3 removed Complainant as team lead for the Chemical Accident Incident Response Activities/Chemical Stockpile Emergency Preparedness Program (CAIRA-CSEPP); statement to the EEO Counselor, by the time the investigation commenced, she was no longer employed by the Agency. IR 339-49. 2021002224 3 l. On August 21, 2019, S1b directed Complainant to take lunch from 11:30 a.m. to 12:00 p.m.; m. On August 22, 2019, S1b denied Complainant’s request for Federal Emergency Management Agency (FEMA) training and allowed CW1 to go instead; n. On August 26, 2019, S1b terminated Complainant’s Freedom-of-Information-Act (FOIA) and Personal Identifying Information (PII) duties; o. On September 26, 2019, S1b proposed to issue Complainant a three-day suspension; p. On October 3, 2019, S1b denied Complainant’s reasonable accommodation request; q. On October 10, 2019, S3 sent Complainant an email threatening to file a complaint against her and making reference to Complainant herself having filed numerous complaints; r. On October 17, 2019, S2 asked Complainant to provide a doctor’s note for sick leave she had taking after having had a panic attack at the depot clinic; s. On an unspecified date, S2 stated in an email to Complainant that the only reason Complainant was emailing leadership was to bolster her EEO case; and t. On an unspecified date, Complainant was constructively discharged. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 30, 2020, Complainant, through her non-attorney representative, requested a hearing. The representative signed the certificate of service but did not provide contact information in the hearing request form. On September 18, 2020, the AJ assigned to the case issued her acknowledgement order (AO) in which she outlined the rules and procedures for participating in the hearings process. The order included directions for each party to submit a preliminary case information (PCI) statement as well as a warning that failure to submit the PCI could result in sanctions for the non-complying party, including dismissal of the hearing request. AO, pp. 3-4. The AO also included a more general warning that sanctions could be imposed as appropriate for failure to comply with the AJ’s orders. AO, p. 5. The AO clearly stated that the PCI was due no later than 15 calendar days from the date of issuance of the AO and warned that the AJ could sanction a party for contumacious conduct or behavior. AO, p. 5. The certificate of service for the AO indicates that it was sent via email to Complainant at her personal email address. 2021002224 4 On October 21, 2020, the AJ issued a notice of intent to issue a sanction/order to show cause. The AJ stated that as of the date of the show cause order, Complainant had not filed her PCI. She further stated that it was her intent to sanction Complainant for failure to comply with the AO order, and that such a sanction could include the dismissal of her complaint. She ordered Complainant to file her PCI and show good cause, in writing, for failure to submit the PCI in a timely fashion. The show-cause order further directed Complainant to submit both the PCI and her response to the order on or before November 5, 2020. The certificate of service for the show cause order indicates that it was sent to Complainant at her personal email address. On December 7, 2020, Complainant submitted a designation of representative form in which she named the same representative who signed the certificate of service for her hearing request. That same day, the AJ issued an order dismissing Complainant’s request for a hearing and remanding the complaint to the Agency for a final decision. The AJ stated that as of the date of her dismissal order, Complainant had still not filed her PCI and had not submitted the required written response to the show cause order. The AJ stated: Here, Complainant failed to abide by the Commission’s Acknowledgement Order and * * * the Order to Show Cause. Complainant failed to present any sort of justification for the non-compliance or rectify the non-compliance, despite having received the Commission’s notice of intent to sanction and order to show cause. The totality of circumstances extend beyond mere negligence and demonstrate Complainant’s unwillingness to comply with the Administrative Judge’s orders. Further, a lesser sanction would be insufficient given Complainant’s refusal to participate in the process. AJ’s Dismissal Order, p. 2. The certificate of service for the dismissal order indicates that a copy of that order was sent to Complainant at her personal email address. On December 7, 2020, Complainant moved for reconsideration of the AJ’s dismissal order, arguing that neither she nor her representative received a copy of the acknowledgement order that the AJ issued on September 18, 2020. On December 17, 2020, the AJ denied Complainant’s motion for reconsideration finding that there was no record of the AO, the show cause order, or the dismissal order coming back undeliverable, and consequently, that the email address used to serve those orders to Complainant was correct. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. This appeal followed. On pages 8 and 9 of her appeal brief, Complainant appears to be contesting the AJ’s denial of her reconsideration request and the dismissal of her hearing request as a sanction. 2021002224 5 ANALYSIS AND FINDINGS The AJ’s Dismissal of Complainant’s Hearing Request as a Sanction The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant’s hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with her orders. Id. When a party fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances: (i) draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) exclude other evidence offered by the party failing to produce the requested information or witness; (iv) issue a decision fully or partially in favor of the opposing party; or (v) take such other actions as appropriate. 29 C.F.R. § 1614.109(f)(3). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. In applying the first and fourth factors, we find that Complainant’s non-compliance consisted of failing to submit her PCI in accordance with the AJ’s acknowledgement order and her failure to respond to the AJ’s show-cause order. Rather than try to justify her non-compliance, Complainant tried to argue after-the-fact that neither she nor her representative received a copy of the September 18, 2020 AO. However, none of the orders issued by the AJ in this matter were ever returned as undeliverable. Complainant’s contention that she never received those orders despite providing that same email address several times throughout the process appears disingenuous. As to her representative, Complainant did not formally designate her as the representative until December 7, 2020. Therefore, the AJ could not have provided the representative a copy of the AO in September 2020. 2021002224 6 The record reveals that Complainant’s representative did in fact sign the hearing request form; however, the form contained only Complainant’s email address and no contact information for the representative. In considering the second and third factors, we find Complainant’s failure to respond to the AJ’s acknowledgement order and order to show cause effectively halted the proceeding and prevented the Agency from engaging in the discovery process or otherwise moving forward. Finally, in taking the fifth factor into account, we have recently reaffirmed that there must be a showing that Complainant either willfully disobeyed the AJ’s orders or unjustifiably failed to respond to those orders to warrant dismissal of the hearing request as a sanction. Nina H. v. Dep’t of Labor, EEOC Appeal No. 2021000962 (Mar. 15, 2022); Clarine L. v. Dep’t of Homeland Security, EEOC Appeal No. 2020004391 (Feb. 8, 2022); Wilma B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020003672 (Dec. 2, 2021). See also e.g. Linda D. v. U.S. Postal Serv., EEOC Appeal No. 2019004909 (Sept. 23, 2020) (the complainant’s failure to respond to the AJ’s orders impugns the integrity of the EEO process as a whole). We agree with the AJ that there is no justification for Complainant’s failure to respond to her AO and show cause orders. Consequently, the AJ’s dismissal of Complainant’s hearing request as a sanction was reasonable and well within the bounds of her discretion. We now move on to the merits of Complainant’s appeal. 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”). Disparate Treatment - Allegations (a)-(g), (i)-(o) & (q)-(s) To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to allegation (a), S1b affirmed that she denied Complainant’s requests for overtime to cover travel from her home to work and that she had asked Complainant to show her a regulation that authorized such overtime payments. IR 23. 2021002224 7 Regarding allegation (b), S1b admitted that she had CW2 call Complainant at home while Complainant was on sick leave in order to investigate a possible unauthorized PII disclosure. IR 23. With regard to allegation (c), S2 and S3 averred that Complainant was a lead specialist in the Office of Public Affairs but was incorrectly holding herself out as the Chief of the Office, which caused confusion and led to deadlines being missed. IR 244, 258. Concerning allegation (d), S1b and S2 stated that S1b merely exercised her prerogative as a supervisor to divide up the work among the three public affairs specialists in an equitable manner. IR 22, 243. With respect to allegation (e), S1b stated that Complainant repeatedly ignored her when she called out Complainant’s name and that she never treated Complainant disrespectfully. IR 22. As to allegation (f), S1b stated that she could not recall a notification regarding sheltering in place and that she would never intentionally not communicate information regarding such a serious matter. IR 22. Regarding allegation (g), S1b admitted emailing Complainant on August 8, 2019, that if she was going to be out from work the following day, she would need to have a doctor’s note upon her return. S2 averred that there were several prior instances of Complainant not showing up to events at which her presence was required. IR 22, 242. Concerning allegation (i), S1a, S1b, and S2 stated that the performance standards, objectives, and elements for the public affairs specialist position were already in place, that the first-line supervisor has the discretion to determine what is expected of the employee, and that the timelines for completion of work were standard across the facility and achievable. S1b also noted that, as of September 14, 2019, the date she had given her statement to the EEO counselor, Complainant’s performance standards had not yet been finalized. IR 22, 240, 254. With respect to allegation (j) S1a averred that five employees, including Complainant, did not receive performance awards because they had been subjected to disciplinary actions during the 2019 rating cycle. IR 255. As to allegation (k), S1a, S2, and S3 averred that the decision was made to divide the CIARA/CSEPP duties equally among the three specialists as part of a reorganization of the Public Affairs Office. IR 246-47, 255, 261. Regarding allegation (l), S1b and S3 stated that when S3 went to look for Complainant on the date in question, he found a note on Complainant’s office door saying that she had gone to the gym. At the direction of S3, S1b went to get Complainant and told Complainant that she had to take lunch between 11:30 a.m. and 12:00 p.m., in accordance with the needs of the office. IR 23, 245-46. With regard to allegation (m), S1b and S2 stated that as part of the office reorganization, responsibility for the CSEPP functions were given to CW1, and consequently, that it made sense for CW1 to take the FEMA training. S1b further noted that she had approved Complainant for a half-day training, but that Complainant declined to go. IR 23, 245. Concerning allegation (n), S1a averred that FOIA and PII duties were regarded as collateral duties. S1b and S2 stated that the FOIA and PII responsibilities were taken from Complainant because Complainant used a cell phone to text an individual's social security number, which was a breach of PII. IR 23, 246, 255. With respect to allegation (o), S2 asserted that S1b proposed the suspension due to the privacy breach at issue in allegation (n). 2021002224 8 Regarding allegation (q), S2 and S3 averred that Complainant had been sending numerous emails to S3 concerning problems she was having with her chain of command, that S3 told her to stop sending him emails that did not pertain to her job as a Public Affairs Specialist, and that if Complainant continued to harass him with emails regarding her personal issues, he would file a harassment complaint against her. S2, who was copied on the email, affirmed that although S3’s email could have been worded a little better, she did not perceive it as a threat. IR 248, 262. With regard to allegation (r), S2 stated that Complainant left work without telling anyone and only later told S2 that she had gone to the on-post clinic. IR 247. Concerning allegation (s), S2 averred that Complainant was bombarding management with emails, making accusations such as her heat was purposely being turned down and the lights in her office were purposely left on. S2 further stated that she had consulted with legal counsel and was advised to respond to Complainant’s emails. IR 249. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Apart from her own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations provided by S1a, S1b, S2 or S3, which cast doubt upon the truthfulness of these officials as witnesses, or which establish the existence of at least one of the indicators of pretext referenced above. We therefore agree with the Agency that the evidentiary record does not support Complainant’s claim of discrimination or reprisal. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021002224 9 Denial of Reasonable Accommodation - Allegations (h) & (p) An Agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9; Barney G. v. Dep’t. pf Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). In order to establish that he was denied a reasonable accommodation, Complainant must show that: (1) he 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 a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). We will assume, for purposes of analysis, that Complainant is a qualified individual with a disability. On August 26, 2019, Complainant requested a reasonable accommodation of a maxi-flex schedule, situational telework for tasks requiring concentration, and the ability to take leave 3 times weekly in order to facilitate a workout. Complainant stated that she was requesting these accommodations due to severe anxiety and ADHD. Management officials affirmed that neither telework nor a flex schedule was authorized due to the nature of Complainant’s public affairs position. However, Complainant was offered the following alternative accommodations: a van pool ride share, an individual office for concentration, and the ability to combine her 11:30 a.m. to 12:00 p.m. lunch hour with an hour of annual leave three days a week in order to accommodate a time to exercise. S2 noted that Complainant rejected an offer to work an alternative schedule. IR 22-23, 239, 242, 248, 252-53, 260. While Complainant may not have received the accommodation she preferred, we have held that protected individuals are entitled to an effective reasonable accommodation, not necessarily the accommodation of the individual's choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). Complainant has not offered sufficient evidence demonstrating that the accommodation offered to her was ineffective. Accordingly, the record does not support a finding that the Agency failed to accommodate Complainant in violation of the Rehabilitation Act. Constructive Discharge The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). 2021002224 10 As discussed more fully above, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant has not established that a reasonable person in her position would have found these working conditions intolerable. S2 and S3 averred that Complainant had abruptly resigned her position, stating in an email that she had found a new job. Complainant herself admitted that she never said that she had been constructively discharged. Rather, she sought and found a new job. IR 235, 249, 264. Furthermore, the record is devoid of evidence that any Agency management official was motivated by discriminatory or retaliatory animus with respect to the working conditions at issue. Accordingly, we find that Complainant failed to prove her constructive discharge claim as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s Final Decision. 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. 2021002224 11 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. 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 August 3, 2022 Date