[Redacted], Tania O., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

May 24, 2022

Appeal No. 2022000007 (E.E.O.C. May. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tania O.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 2022000007 Hearing No. 570-2019-001146X Agency No. DTRA-18-030 DECISION On September 30, 2021, the Agency filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), regarding the Equal Employment Opportunity Commission Administrative Judge’s (AJ) August 23, 2021, decision concerning Complainant’s 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. Complainant filed her own appeal shortly after. For the following reasons, the Commission REVERSES in part, and AFFIRMS in part the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst at the Agency’s facility in Fort Belvoir, Virginia. On September 5, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the basis of disability (mental) 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. 2022000007 2 1. on August 16, 2018, Complainant was issued a written Letter of Reprimand from her supervisor, the Chief of Financial Management Branch (Chief), for failing to follow instructions; 2. on August 10, 2018, after declining the Chief’s request to come to her office and stating to her that she would prefer to have the conversation placed in writing, the Chief allegedly raised her voice at Complainant and stated, "you will not dictate me [sic] how I will conduct meetings with you!"; 3. on August 2, 2018, while Complainant was on situational telework, the Chief contacted her to report to the Agency for drug testing. Complainant stated she felt she was being targeted because she had been targeted the week before to take a drug test; 4. on July 30, 2018, Complainant asked the Team Lead to attend a meeting called by the Chief in her office; however, when they both arrived, the Chief asked the Team Lead to leave the meeting; 5. on July 25, 2018, while Complainant was on situational telework, the Chief e- mailed her four times, called her four times, and Skyped her once that morning; 6. on June 27, 2018, the Chief denied her reasonable accommodation request to telework; 7. on June 27, 2018, the Chief removed her from her duties as Account Manager and tasked her with duties of a Systems Integrator; 8. on April 9, 2018, and on multiple occasions, Complainant states she asked the Chief to place verbal conversations with her in writing because she had difficulty tracking entire conversations and her supervisor allegedly refused; and 9. on April 4, 2018, the Human Resources Specialist, questioned the legality and content of Complainant's medical documentation and stated that it was not sufficient to grant her Leave without Pay. Moreover, Complainant contends that he exceeded his authority when he asked her why she was in the office and if she was not well. During the investigation on the matter, Complainant raised, for the first time, a constructive discharge claim. At the conclusion of the 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 2022000007 3 On March 18, 2020, the AJ assigned to the matter, issued a Case Management Order (Order). The Order noted that the Agency failed to recognize the issue of constructive discharge as a separate claim in its letter of acceptance, although it was required to do so pursuant to 29 C.F.R. § 1604.302(b). Accordingly, the AJ ordered the Agency to permit Complainant the opportunity to seek EEO counseling on the issue and to process it accordingly.2 Both Complainant and the Agency submitted Motions for Summary Judgment. On June 11, 2021, the AJ issued an Interim Decision Without a Hearing and Order for Damages Briefing. Prior to their analysis, the AJ acknowledged Complainant’s reference to a claim of retaliation but stated that since it was not an accepted basis during the investigation, they would not address it in their decision. Based on the record, the AJ issued the Interim Decision to grant in part, and deny in part, both the Agency and Complainant’s motions. The AJ granted the Agency’s motion regarding claims 6, 7, and 9. Concerning claim 6, the AJ determined that there was a signed telework agreement that provided for situational telework subject to approval. Regarding claim 7, the AJ found that it was not Complainant’s performance but her frequent absences that created consistency issues that led to the change. Regarding claim 9, the AJ found that Complainant’s leave request was approved. Lastly, the AJ concluded that the Agency did not create a hostile work environment against Complainant because of her disability. The AJ granted Complainant’s motion on claims 1-5 and 8. The AJ determined that on at least three occasions, due to her medical condition, Complainant specifically requested the accommodation of written supervisory instructions in lieu of in-person or phone meetings. The AJ noted that when Complainant did not appear for in-person meetings or answer calls from the Chief, she was disciplined. The disciplinary actions were clear indications that the Agency did not approve of Complainant’s accommodation request. In reviewing the record, the AJ found that the Agency failed to engage in the interactive process with Complainant in order to determine the need for the accommodation, or an effective substitute accommodation. The AJ also determined that the Agency failed to articulate a reason for denying the accommodation and/or provide proof that it would have caused the Agency undue hardship. Based on these determinations, the AJ ordered Complainant to file a brief outlining her claim for damages and provided the Agency with time to respond. The parties timely complied to this order. On August 23, 2021, the AJ entered the Decision Without a Hearing for Remedial Relief and Corrective Action. The AJ further detailed her decision granting and denying in part both Complainant and the Agency’s Motions for Summary Judgment. Upon review of Complainant’s brief on damages, the AJ granted Complainant the following awards for claims 1-5, and 8: the Agency shall expunge its records and remove the Letter of Warning and Letter of Reprimand from all Agency records and Complainant’s personnel files; restore all annual and sick leave Complainant took as a result of the discrimination and issue payment representing the monetary value of leave restored in light of Complainant’s separation from federal employment; pay 2 At the time of this decision, Complainant’s constructive discharge claim was subject to a pending matter docketed with the Commission under EEOC Appeal No. 2022001902. 2022000007 4 Complainant $65,000.00 in non-pecuniary compensatory damages; require the responsible management official to take 4 hours of EEO training with an emphasis on the legal requirements surrounding reasonable accommodation for a person with a psychiatric disability and the responsibility to engage in the interactive process; and post a notice regarding the matter. Finally, the AJ noted that since Complainant was never represented by legal counsel, attorney’s fees and costs would not be provided. On September 30, 2021, the Agency issued its final action. The Agency implemented the AJ’s decision regarding claims 6, 7, and 9. The Agency also implemented the AJ’s decision that it did not create a hostile work environment for Complainant. Without any discussion, the Agency declined to implement the AJ’s decision regarding claims 1-5 and 8. The Agency also declined to implement any of the associated award of damages. The Agency noted that along with the issuance of its final decision, it was simultaneously filing an appeal of the AJ’s decision with the Commission. CONTENTIONS ON APPEAL On appeal, the Agency reiterates arguments made in its original Motion for Summary Judgment and requests that the Commission affirm its final decision. In response to Complainant’s appellate briefs, the Agency notes three main areas of contention: her claim of constructive discharge; the basis of reprisal; and Complainant’s claim for attorney’s fees. Regarding Complainant’s constructive discharge claim, the Agency details why it is not properly before the Commission. Regarding Complainant’s reprisal claim, the Agency argues that Complainant is attempting to raise this as a new claim, and it should, therefore, be denied. Regarding Complainant’s claim to attorney’s fees, the Agency asserts that Complainant is not entitled as she failed to comply with the provisions of 29 C.F.R. § 1614.501(e). In response to the Agency’s appeal, Complainant provides multiple detailed appellate briefs as to why the Commission should reverse the Agency’s final action and implement the AJ’s summary judgment decision finding for her in regards to claims 1-5 and 8. In addition, Complainant requests that we uphold the AJ’s order of awards. Regarding the $65,000 non-pecuniary damages, Complainant asserts that this amount should be the minimum, and requests that the Commission consider providing a far more significant amount. Complainant also requests that the Commission review her reprisal claim; order the Agency to reimburse her for fees paid for legal consultations; expand on the sick and annual leave awards and reimburse her for time lost when she used Family Medical and Leave Act (FMLA) and Leave Without Pay (LWOP); find that the Agency did subject her to a hostile work environment; and find in her favor in claims 6, 7, and 9. 2022000007 5 ANALYSIS AND FINDINGS New Basis Raised As a preliminary matter, we note that Complainant addresses a basis that was not raised in her informal counseling or formal complaint. Specifically, Complainant has repeatedly attempted to raise a new basis of retaliation. This was previously raised during the hearing stage, and the AJ declined to address the matter as it was not raised during the informal counseling or in the formal complaint. As the AJ properly determined, this new basis was not properly raised. Therefore, we will not consider it on appeal. To allow a complainant to raise a basis not presented to the agency at some point prior to its final determination would thwart the investigative process. Absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (March 27, 1997)); see also Jeanie P. v. U.S. Postal Serv., EEOC Appeal No. 2019004085 (Jan. 16, 2020). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Having considered Complainant's and the Agency’s arguments, in both the motions for summary judgment and on appeal, we find that there exists no genuine issue of material fact; that the record is adequately developed; and that no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Accordingly, we find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law in claims 6, 7, and 9, while Complainant was entitled to summary judgment concerning claims 1-5 and 8. 2022000007 6 Claims 6, 7, and 9 and Hostile Work Environment Regarding claims 6, 7, and 9, we find that the AJ correctly determined, using the proper legal standard, that the preponderant evidence failed to establish that Complainant was subjected to a hostile work environment and discrimination as alleged. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Additionally, we note that discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005); see also Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784, 35 FEP Cases 601 (E.D. Wis. 1984) (opining that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive”). Reasonable Accommodation - Claims 1-5 and 8 Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and 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 reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). 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) she 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, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance on Reasonable Accommodation). An individual with a disability is “qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). Concerning part 1, the Agency conceded that Complainant has a disability. However, it argued that Complainant failed to meet part 2. The Agency argued that Complainant’s disability occasionally manifested itself in such a way that completely incapacitated her to the point where she was unable to perform her duties with or without a reasonable accommodation. Alternatively, the Agency argued that should the Commission consider Complainant to be a qualified individual with a disability, she failed to meet part 3. The Agency argued that Complainant never specifically requested for a reasonable accommodation, nor did the Agency receive reasonable notice that Complainant was requesting an accommodation. Complainant has the threshold burden of establishing that she is a qualified individual with a disability, and that there is a nexus between her disability and her need for accommodation in order to be entitled to a reasonable accommodation under the Rehabilitation Act. See Nelson v. U.S. Postal Serv., EEOC Appeal No. 01981981 (Aug. 17, 2001); Ricco v. U.S. Postal Serv., 2022000007 7 EEOC Appeal No. 07A10007 (Feb. 21, 2002); Struthers v. Dep’t of the Navy, 07A40043 (June 29, 2006). Contrary to the Agency’s arguments, we agree with the AJ’s determination that Complainant has demonstrated that she is a qualified individual with a disability. The record demonstrated that Complainant’s performance was considered Satisfactory from the relevant rating period of 2017 to 2018. Complainant clearly was able to perform the duties and responsibilities of her position, to management’s satisfaction, with or without an accommodation. Moving onto part 3, we find that Complainant repeatedly requested the Chief to accommodate her condition by providing written instructions. The Agency contested and asserted that Complainant never specifically requested for a reasonable accommodation nor did it have reasonable and objective notice that her requests for written instructions was an accommodation request. Here, Complainant repeatedly requested the Chief to accommodate her condition by providing written instructions in lieu of in-person or phone meetings. Once Complainant requested a reasonable accommodation, as she did here, the Agency had to make a reasonable effort to determine an appropriate and effective accommodation. A reasonable accommodation must be effective. See U.S. Airways v. Barnett, 535 U.S. 391, 400 (2002) (“the word ‘accommodation’….conveys the need for effectiveness”). That is, a reasonable accommodation should provide the individual with a disability with “an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment, as are available to the average similarly situated employee without a disability.” 29 C.F.R. Part 6130 app. § 1630.9. If more than one accommodation will enable an individual to perform the essential functions of his or her position, “the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” Id.; see also Enforcement Guidance on Reasonable Accommodation at Q. 9. “The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.” 29 C.F.R. Part 6130 app. § 1630.9. In this matter, when Complainant did not appear for in-person meetings or answer calls from the Chief, she was disciplined. The disciplinary actions were clear indications that the Agency did not approve of Complainant’s repeated accommodation requests of written instructions. The record here supports the AJ’s decision that despite her repeated requests to be accommodated, the Agency failed to engage in the interactive process with Complainant to either provide her requested accommodation or an alternative effective accommodation. Accordingly, regarding claims 1-5, and 8, we find that the AJ appropriately issued summary judgment in Complainant’s favor when they determined that the Agency failed to meet its obligation under the Rehabilitation Act. 2022000007 8 Lastly, we note that claim 6 also regarded a denial of reasonable accommodation. However, unlike claims 1-5, and 8, in claim 6, the AJ found, and we agree, that the Agency did provide Complainant with her requested accommodation. In this matter, on or about June 27, 2018, Complainant requested the ability to telework as a normal routine, not to specifically telework that day. Based upon her request, on August 6, 2018, Complainant was provided with a two-year telework agreement that provided regular telework and situational telework subject to approval. Compensatory Damages To receive an award of compensatory damages, Complainant must demonstrate that she has been harmed as a result of the Agency's discriminatory action; the extent, nature, and severity of the harm; and the duration or expected duration of the harm. Rivera v. Dep't of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (EEOC Notice No. 915.002) (July 14, 1992), at 11-12, 14. Compensatory damages may be awarded for past and future pecuniary losses (i.e., out-of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) which are directly or proximately caused by the agency's discriminatory conduct. EEOC Notice No. 915.002 at 8. The amount awarded should reflect the extent to which the agency's discriminatory action directly or proximately caused harm to the complainant and the extent to which other factors may have played a part. Id. at 11-12. The amount of non-pecuniary damages should also reflect the nature and severity of the harm to the complainant, and the duration or expected duration of the harm. Id. at 14, see Goetze v. Dep't of the Navy, EEOC Appeal No. 01991530 (Aug. 23, 2001). In Carle v. Dep’t of the Navy, the Commission explained that “objective evidence” of non- pecuniary damages could include a statement by the complainant explaining how he or she was affected by the discrimination. EEOC Appeal No. 01922369 (Jan. 5, 1993). Statements from others, including family members, friends, and health care providers could address the outward manifestations of the impact of the discrimination on the complainant. Id. Complainant could also submit documentation of medical or psychiatric treatment related to the effects of the discrimination. Id. Non-pecuniary damages must be limited to the sums necessary to compensate the injured party for the actual harm and should take into account the severity of the harm and the length of the time the injured party has suffered from the harm. Carpenter v. Dep’t of Agric., EEOC Appeal No. 01945652 (July 17, 1995). Here, the AJ awarded Complainant $65,000 in non-pecuniary damages. We agree with the AJ that the award was appropriate. We note that the Commission has found other non-pecuniary awards in similar situations to be appropriate as well. See Myrtie P., v. Dep’t of Homeland Sec., EEOC Appeal No. 0120180246 (Mar. 19, 2019) (updated award of $65,000 where denial of accommodation caused Complainant prolonged stress that exacerbated her once controlled Grave’s disease, and caused her to be insomniac, suffer severe eye twitching, nausea, severe weight fluctuations, vomiting, skin outbreaks, blurred vision, and hormonal changes to her menstruation); Lula N. v. Dep't of Veterans Affs., EEOC Appeal No. 0120113346 (Mar. 21, 2022000007 9 2014) ($65,000 where complainant acknowledged that she experienced health problems prior to the discrimination, but provided documentation indicating that her health worsened due to discrimination. Complainant experienced anxiousness, depression, crying, headaches, insomnia, and high blood pressure); Dayle H., v. Dep’t of Veterans Affs., EEOC Appeal No. 0120140883 (Jan. 17, 2017) (award of $65,000 where denial of accommodation exacerbated preexisting conditions and caused personality changes, stress, and anxiety). Based on the record, we find no reason to disturb this determination. Restoration of Leave On appeal, Complainant requested that the Commission uphold the AJ’s award of restoration of her annual and sick leave. Complainant also requested that the Commission expand the AJ’s award and include leave she took under the Family Medical and Leave Act and Leave Without Pay when calculating the monetary value of the leave that should be restored to her. In this matter, Complainant asserted that she used leave beyond her annual and sick leave as a result of the Agency’s discriminatory actions. Where there has been a finding of discrimination, such as here, the complainant is entitled to the restoration of any leave used because of the agency’s discriminatory actions. Lamb v. Soc. Sec. Admin., EEOC Appeal No. 0120103232 (Mar. 21, 2012) (leave restoration ordered where denial of reasonable accommodation resulted in leave usage); See also EEO MD-110, at Chap. 11, § III.K. Accordingly, we modify the AJ’s order to restore all, not just annual and sick, leave that Complainant took as a result of the discrimination and then issue payment representing the monetary value of such leave. Attorney’s Fees and Costs All attorney’s fees and costs shall be awarded in accordance with 29 C.F.R. § 1614.501(e). See EEO MD-110, at Chap. 9, § VI. On appeal, Complainant requested for fees she incurred when she consulted with law offices about her complaint. However, we find that Complainant was never represented by legal counsel and as a pro se complainant she is not eligible for attorney’s fees and costs. Id. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s decision regarding claims 6, 7, and 9, and REVERSE the decision regarding claims 1-5, and 8. We REMAND the matter for further processing and the Agency is directed to comply with the AJ's order, as modified, and as set forth herein. 2022000007 10 ORDER The Agency, to the extent it has not already done so, shall within thirty (30) calendar days of the date this decision is issued: 1. expunge its records and remove the Letter of Warning and Letter of Reprimand from all Agency records and Complainant’s personnel files. 2. restore all leave Complainant took as a result of the discrimination and issue payment representing the monetary value of leave restored in light of Complainant’s separation from federal employment. 3. pay Complainant the amount of $65,000.00 in non-pecuniary compensatory damages. 4. require the responsible management official3 to take 4 hours of EEO training in the provisions of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. with an emphasis on the legal requirements surrounding reasonable accommodation for a person with a psychiatric disability and the responsibility to engage in the interactive process. 5. post the attached notice in the Agency’s. Copies of the notice, signed by the agency’s duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” POSTING ORDER (G0617) The Agency is ordered to post at its facility in Fort Belvoir, Virginia, 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. 3 The name of the responsible management official (RMO) can be found on page 166 of the Report of Investigation in the RMO’s affidavit. 2022000007 11 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). 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). 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. 2022000007 12 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 2022000007 13 If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 24, 2022 Date