Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0220140008 (E.E.O.C. Mar. 9, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Timika O.,1
Grievant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0220140008

Agency No. FMCS13574783

DECISION

On January 8, 2014, Grievant filed an appeal with this Commission from the December 11,
2013 Arbitration Award concerning her union grievance alleging a 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 decision of the Arbitrator finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Technician in the Finance Branch of the Marine Corps Community Services (MCCS) Division
located at the Marine Corps Base in Quantico, Virginia. Complainant’s position was a non-
appropriated fund (NAF) position at the grade of NF-2. Complainant was responsible for the
collection of past due accounts and bad checks written by patrons of the community services
program. Complainant was the only employee performing these duties. Complainant’s first
level supervisor was S1.

On December 3, 2011, Grievant was involved in an automobile accident in which her husband
was killed and she sustained multiple bruises and contusions and severely injured her right
knee. Complainant underwent extensive medical treatment and was unable, for an extended
period, to return to work. S1 approved Grievant’s use of 24 hours of bereavement leave, 53

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.
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hours of paid leave based on her available leave balance, and an additional 134.5 hours of
leave without pay (LWOP) to cover her absence throughout the months of December 2011 –
January 2012.

On January 9, 2012, S1 informed Grievant that she exhausted all of her leave and inquired
when she would be returning to work. Grievant testified that, during the telephone
conversation, she informed S1 that her leg had been seriously injured in the accident. Grievant
returned to work on January 11, 2012, and she explained she needed a cane and had difficulty
walking and could not drive. She testified she told S1 that she was still under doctor’s care,
had numerous medical appointments, and required physical therapy for her leg and would need
time off from work. Grievant testified that she told S1 that she was having difficulty attending
the medical appointments necessary to rehabilitate her knee due to her work schedule.
Grievant was then approved for 480 hours of Family and Medical Leave Act (FMLA) leave.

In March 2012, Grievant was referred to Doctor 1, a psychiatrist, because of her grief
symptoms, anxiety, sadness, and difficulty focusing. Doctor 1 prescribed medications for
depression and anxiety and recommended that she take three weeks of sick leave to grieve the
loss of her husband.

It is undisputed that, by this time, Complainant had exhausted all her accrued leave. Although
S1 told Grievant she was not authorized to receive donated leave, Human Resources concluded
that she did qualify for donated leave and she subsequently received donated leave. Grievant
saw Doctor 1 in four follow-up appointments in March and April 2012, and saw her monthly
throughout the end of the year. Grievant also continued to receive medical treatment for her
right knee, with two physical therapy appointments each week in addition to other follow-up
appointments with her regular doctor. Grievant used approved FMLA leave without pay to
attend those appointments.

On March 28, 2012, Doctor 1 noted Grievant “continues to struggle with anxiety and
depression.” Doctor 1 reported the anti-depressant she is on made her tired and irritable and
that she had a hard time concentrating and making decisions. Doctor 1 recommended that
Grievant go on sick leave for two weeks starting that day. Doctor 1 stated she would try and
adjust Grievant’s medication and re-evaluate her prior to her return to work. Grievant used
donated leave for her absence from work between March 28 and May 18, 2012.

Grievant testified that on June 4, 2012, S1 informed her that she had exhausted her approved
FMLA leave and had no annual or sick leave.2 Grievant stated that when she told S1 she still
had medical appointments, S1 told her she could go to Human Resources and discuss a
reasonable accommodation.

On June 11, 2012, Grievant met with Person A, Human Resources Specialist. Grievant stated
that Person A told her she was new to the job and did not know much about the reasonable

2 The Agency contended that Grievant exhausted her FMLA leave on July 9, 2012.
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accommodation process. Person A gave Grievant the reasonable accommodation packet and
told her to complete it. Grievant submitted the formal application for a reasonable
accommodation on June 29, 2012. On her application, Grievant requested a new chair for
work, a space heater as needed, and part-time hours. Grievant also noted that flare-ups due to
her physical therapy cause her pain in the right knee and periodically prevent her from coming
to work as scheduled.

On July 20, 2012, Grievant requested LWOP from September 10 through 17, 2012, to visit
with her son who was scheduled to be home from Afghanistan. On July 23, 2012, S1 denied
Grievant’s request.

On August 22, 2012, the Agency convened a Reasonable Accommodation Committee.
Grievant stated she requested to work part-time because it would be beneficial for her to attend
her doctor’s appointments. The Deputy Director of Human Resources testified that although
the Reasonable Accommodation Program Coordinator raised the issue of telework during the
meeting on August 22, 2012, the Reasonable Accommodation Committee did not consider
telework as an accommodation for Grievant.

On September 11, 2012, the Agency requested Complainant provide current medical
documentation as part of the reasonable accommodation process. Grievant’s physician was
asked to provide an opinion on the nature, severity, and duration of Grievant’s medical
impairment; the extent to which the impairment(s) limits Grievant’s ability to perform an
activity or activities; an assessment of Grievant’s ability to successfully perform the essential
elements of the position with or without accommodation; and if accommodation is required, to
specify the particular accommodation requested, with explanations as to how the
accommodation will assist in performing the essential functions of the position.

The record contains a September 16, 2012 letter in which Doctor 1 noted that following the
accident on December 3, 2011, Grievant had had a “hard time concentrating, she c/o
[complains of] inability to focus, feels very anxious, tense and depressed…want[s] to keep to
self and hates being around people.” Doctor 1 further stated “[h]er problems with anxiety and
depression make it hard for her to concentrate and focus, that impact[] on her ability to work
efficiently.” Additionally, Doctor 1 stated Grievant “should be able to perform the essential
functions of her position which she reports she has done for many years except at the present
time she perceives that her supervisors are uncaring and want to get rid of her and this makes
her very anxious and inefficient.” Doctor 1 recommended that Grievant be reassigned away
from S1’s supervision. Doctor 1 stated that S1 was creating a stressful hostile work
environment for Grievant.

The record contains a letter dated September 20, 2012 from Doctor 2, Primary Care Sports
Medicine Fellow and Staff Family Physician. Doctor 2 noted that he first saw Grievant on
September 5, 2012. He noted that she “would benefit from ongoing Physical Therapy
treatments as needed.” Doctor 2 stated “special attention should be given allowing her to
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change positions (sitting or standing) every 45 minutes as needed to manager her pain.”
Doctor 2 opined that the restrictions should be in place for the next two months.

The record also contains a September 20, 2012 letter from Grievant’s Physical Therapist. The
Physical Therapist noted he started seeing Grievant for physical therapy on February 6, 2012.
He noted that through many months of therapy, Grievant has greatly improved the function in
her right knee. The Physical Therapist stated that he does “not believe that [Grievant’s] knee
problem will prevent her from doing the job described in the enclosure. She should be
permitted to use her TENS unit at work if she has pain.”3 Additionally, the Physical Therapist
stated “her need for Physical Therapy treatments of her knee is coming to a close in the next
one to two weeks. Once she is discharged, she will not need time off from work for Physical
Therapy appointments.”

On October 18, 2012, Grievant and S1 attended a reasonable accommodation meeting in
Person B’s office. By a memorandum dated October 17, 2012, S1 offered Grievant the Option
of Reassignment as an Accommodation. The memorandum noted that at the Reasonable
Accommodation meeting on August 22, 2012, Grievant stated she was now utilizing a TENS
unit for her knee and was no longer requesting a space heater. The Agency informed Grievant
that it determined she could not be accommodated in her current position. The Agency cited
the information contained in Doctor 1’s September 16, 2012 letter and the physical demands of
the position. The memorandum stated that although Grievant could not be accommodated in
her current position, and there were not current, vacant, and funded positions at the Finance
Department for which Grievant was qualified and which meet her medical limitations, she was
eligible to be considered for reassignment into a vacant Non-Appropriated Fund (NAF)
position (NF-2, regular, full-time) within the Marine Corps. The memorandum noted Grievant
listed part-time hours as an accommodation that would assist in the performance of her duties.
It was noted that Grievant at the time held a full-time position and if she selected the option for
reassignment a job search for a full-time equivalent position would be conducted. However,
the memorandum noted that if Grievant has a need for a part-time position, she may request a
job search for a part-time position be conducted in place of the full-time position. Grievant
was informed she must respond within seven calendar days of receipt of the memorandum.
Grievant was informed if she accepted this option, she may indicate the choice of her
appointment, position preferences, if any, and the parameters of the job search. It was noted
the job search would be conducted for 60 days. Grievant was informed if she declined to be
considered for reassignment and was unable to perform the essential functions of her position,
appropriate administrative action up to and including removal may be taken.

During the same meeting, S1, by memorandum dated October 18, 2012, also informed
Grievant that during the time her job search was being conducted, she would be temporarily
reassigned to the position of Office Automation Assistant, NF-2, Finance Branch. Grievant

3 The record reveals a transcutaneous electrical nerve stimulation (TENS) unit is used, for
therapeutic purposes, to stimulate nerves.
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was also informed that she could request to be placed on leave without pay while the 60-day
job search was being conducted.

On October 19, 2012, the Union Representative sent an electronic mail message to the Director
of Human Resources, which was copied to Person B. The Union Representative requested
clarification and an extension so Grievant could confer with the Union. Person B responded
the same day by clarifying Grievant’s options and denying an extension.

On October 5, 2012, Grievant sent an electronic mail to S1 requesting to leave early due to
pain in her knee from Physical Therapy and the air conditioning. S1 responded that she could
not approve the request as Grievant had no leave and work to do. Grievant’s request for two
hours of LWOP on October 22, 2012, for an emergency room visit for pain in her knee was
denied. Grievant’s request for four days LWOP from October 23, through October 26, 2012,
was denied. Grievant’s request for advanced sick leave for the period from October 29,
through November 9, 2012, to recover from knee surgery, and the subsequent change of the
request for LWOP from October 31, through November 5, 2012 were also denied.

By electronic mail to Person B dated October 24, 2012, Grievant “decline[d] the offer of
reasonable accommodation because it is not beneficial to me.” By electronic mail to Grievant
later the same morning, Person B asked whether she was “declining the option of reassignment
or withdrawing from the reasonable accommodation process all together?” In an electronic
mail dated October 25, 2012, the Union Representative inquired of Person B “what’s the
difference between the two and the impact of each other.” Later that day, Person B explained
the difference between the two options. Person B also acknowledged that management has
received Grievant’s request for leave and noted that MCCS policy does not allow for advanced
sick or annual leave, and thus, denied advanced leave. Person B explained that no decision
can be made on the other leave requests until the Agency receives Grievant’s decision
regarding reasonable accommodation. Person B requested Grievant’s decision by close of
business the following day, October 26, 2012.

On October 31, 2012, S1 issued Grievant a Proposed Notice of Termination of Employment
(Proposed Notice). The Proposed Notice contained two charges: (1) Excessive Absences,
noting since her last FMLA period which ended July 9, 2012, Grievant had taken 185 hours of
LWOP; (2) Inability to Perform as a Result of Medical Condition. The memorandum noted
that since Grievant is unable to maintain a consistent work schedule and perform the essential
duties of her position, management can no longer continue to allow her extended absences
from work.

On November 30, 2012, Union Counsel responded on Grievant’s behalf. By memorandum
dated January 14, 2013, Person C issued Grievant a Notice of Termination of Employment.

The Union filed a grievance form dated April 12, 2013, protesting the Agency’s discharge of
Grievant. The union subsequently invoked arbitration. A hearing was held before an
Arbitrator on September 30, 2013, to determine:
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1. Whether the Agency can prove by a preponderance of the evidence that it was
legally justified in terminating Grievant’s employment.

2. Whether the Agency fulfilled its duty to Grievant to provide a reasonable
accommodation under the Rehabilitation Act.

In his December 11, 2012 decision, the Arbitrator found it undisputed that Grievant was an
individual with a disability and thus, was entitled to protection of the Rehabilitation Act. The
Arbitrator also found it undisputed that the Agency had notice of Grievant’s disability. The
Arbitrator found the Agency processed Grievant’s request for a reasonable accommodation
within the requirements of the law. The Arbitrator determined that Grievant’s requested
accommodations, part-time hours and/or working from home and a different supervisor, would
not have resulted in her performing the essential functions of her Financial Technician
position, which was a full-time position. The Arbitrator found this especially so because there
was no timetable for when the need for such accommodations might end. The Arbitrator noted
it was undisputed that when Grievant was on leave in March through May 2012, her duties
were split up and reassigned among four other employees. The Arbitrator noted this was
presumed to be a temporary fix to a temporary problem and noted with Grievant’s open-ended
request for such an accommodation would be, in essence, a permanent situation. The
Arbitrator stated an employer is not required to modify a full-time work schedule in the way
the Union proposed.

The Arbitrator was not persuaded that a supervisory change constituted a reasonable
accommodation for a disability. The Arbitrator stated that if the Union believed S1 was
harassing Grievant, it could have filed a grievance and/or an unfair labor practice; rather than
a request for reasonable accommodation. The Arbitrator was not persuaded S1’s actions rose
to the level of harassment.

The Arbitrator also found Grievant was unable to perform the essential functions of her
position. The Arbitrator was not convinced Grievant could have performed the essential
functions of her position had she been given the accommodations of telework and/or part-time
work. The Arbitrator recognized that only Grievant’s request for a new chair would have been
a reasonable accommodation, assuming she could otherwise have performed the essential
functions of her position.

Additionally, the Arbitrator determined that after Grievant refused the accommodations offered
to her, i.e., reassignment, the Agency was legally justified in terminating her.

On appeal, Grievant argues that the Arbitrator erred in finding the Agency had no obligation to
consider her January 11, 2012 “plain English request” for an adjustment or change at work
due to her medical condition as requesting reasonable accommodation.

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Grievant states she performed all the essential functions of her position with the only
accommodation the Agency offered her, leave, as she worked in her Financial Technician
position from January 11, 2012, until October 18, 2012, without incident. Grievant claims the
Agency erred in failing to offer her an accommodation until after she exhausted her FMLA
leave.

Grievant also claims the Arbitrator erred in concluding that alternative accommodations would
have been ineffective for her disabilities, including a modified work schedule; changing the
location where work was performed (telework) on either a full-time or part-time basis for
either all or portions of the essential functions of her position; and transfer to a lateral position
within the same office as a result of the ongoing contemporaneous MCCS-Quantico Finance
Office Reorganization. Grievant claims no one from the Agency considered telework, even
though it was raised by the Reasonable Accommodation Program Coordinator. Grievant states
the Agency’s argument that a part-time schedule would have posed an undue hardship is
undermined by the fact that her duties had been divided up to other employees while she was
out on leave for several weeks in March and April 2012.

Grievant claims the Arbitrator erred by finding the Agency offered her a reasonable
accommodation of reassignment on October 17, 2012, over nine months after her verbal
request for reasonable accommodation and over four months after she submitted her written
request for reasonable accommodation in June 2012.

Grievant also alleges the Arbitrator erred in rejecting the testimony of her treating psychiatrist
of the nature and extent of the hostile work environment in finding that it did not rise to the
level of harassment or otherwise warrant a change of supervisor. Grievant argues the
Arbitrator erred in finding she did not establish harassment on the basis of disability.

Grievant claims her termination for excessive absences and medical inability to perform was
not justified, but instead was in retaliation for her use of sick, annual, FMLA, and LWOP as
the only accommodation that she received for disability.

ANALYSIS AND FINDINGS

The Commission has jurisdiction over appeals from grievance decisions in limited
circumstances. EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may
appeal to the Commission from a final decision of the agency, an arbitrator, or the Federal
Relations Authority (FLRA) on a grievance when an issue of employment discrimination was
raised in a negotiated grievance procedure that permits such issues to be raised, but requires
the complainant to proceed on the discrimination claims under either the grievance process or
the EEO process, but not both. In these circumstances, the Commission will only review that
portion of the decision which pertains to the grievant’s employment discrimination claim, as it
does not have jurisdiction over any alleged violations of a collective bargaining agreement.
See 29 C.F.R. § 1614.301(a).
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Reasonable Accommodation

In order to establish that Grievant was denied a reasonable accommodation, she must show
that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability;
and (3) the Agency failed to provide a reasonable accommodation. See EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with
Disabilities Act, No. 915.002 (Oct. 17, 2002). An Agency is required to make reasonable
accommodation to the known physical and mental limitations of a qualified individual with a
disability unless the Agency can show that accommodation would cause an undue hardship. 29
C.F.R. § 1630.2(c) and (p). “The term "qualified,” with respect to an individual with a
disability, means that the individual satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds or desires and, with
or without reasonable accommodation, can perform the essential functions of such a position.”
29 C.F.R. § 1630.2(m). It is undisputed that Grievant was an individual with a disability.

With regard to Grievant’s contention surrounding her January 11, 2012 request to S1 that she
would need time off work to attend medical appointments related to her disability, the record
reveals that the Agency accommodated that request. The record reveals that following the
December 3, 2011 accident, the Agency allowed Grievant to use her accumulated leave and an
additional 134.5 hours of leave without pay to cover her absence throughout the months of
December 2011 – January 2012. Once Grievant returned to work on January 11, 2012, she
was granted 480 hours of FMLA leave and 276 hours of donated leave to cover her continued
absences. Grievant does not cite any medical appointment that she was not permitted to attend
or any leave request denied during this time period. Thus, we find the Agency reasonably
accommodated Grievant from January 11, 2012, the date she returned to work, until she
submitted her written request for a reasonable accommodation in June 2012.

With regard to Grievant’s contention that the Agency did not provide her telework as a
reasonable accommodation, the record reveals that she did not request telework as a reasonable
accommodation for her disability. While Grievant states that the Reasonable Accommodation
Specialist mentioned telework during the August 22, 2012 meeting, she does not claim that she
actually requested telework as an accommodation. Moreover, we note that Grievant did not
present any medical documentation showing that she needed telework (or that it would be
effective) as a reasonable accommodation.

The record reveals that Grievant did request to work part-time hours as a reasonable
accommodation. We note that S1 testified that “time is of the essence” regarding Grievant’s
position since they were trying to get the money owed to the Agency before the Marines
moved around to different locations. S1 also noted that they needed an employee there full
time as people were calling in to get their social security numbers taken off hold or wanting to
know what was going on with their situation. The Agency stated that there were a large
volume of collections that must be collected from military members before they left the base or
left military service. Further, the record showed that Grievant was the only person who
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performed the function of Financial Technician and that the position required a person to
perform on a full time basis. The record reveals that while Grievant was on extended leave
between March and May 2012, the Agency reassigned her work to four different individuals:
one employee updated the files with payments, another employee sent out second letters to
patrons, S1 did the returned checks, and a fourth employee turned in information for home
layaway. Grievant does not dispute that these duties were essential functions of her position.
Upon review, we find that allowing Grievant to work a part-time schedule would have required
the Agency to remove essential functions of the position. The Commission has recognized that
an agency is not required to remove any of the essential functions of a position as a reasonable
accommodation. EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans With Disabilities Act, Notice No. 915.002 (rev. Oct. 17,
2002). As Grievant was the only person serving as a Financial Technician, we find that
reducing her hours to part-time status would have constituted an undue hardship for the
Agency.

Grievant claimed that she should have been transferred to a lateral position within the same
office as a result of the ongoing contemporaneous MCCS-Quantico Finance Office
Reorganization. The record confirms there were discussions in October 2012, concerning
reorganization of the Finance Office. However, Grievant failed to show that during the
relevant time there was a vacant funded position for which she was qualified.

In the present case, the Agency offered Grievant the option to be considered for a reassignment
into a vacant NAF position within the Agency for which she was qualified. The Agency
offered Grievant the opportunity to specify the location for the reassignment by indicating
whether she wished to be considered for a position at MCCS Quantico, at other MCCS
organizations in the National Capital Region, or at other MCCS organizations outside of the
National Capital Region. The Agency also offered Grievant the opportunity to specify whether
she wanted the search to be conducted for full-time or part-time work. In addition, the Agency
offered Grievant the opportunity to be temporarily placed into the position of Office
Automation Assistant, NF-2, while the job search was being conducted. Alternatively, the
Agency informed Grievant she may request to be placed on LWOP while the job search was
being conducted. However, Grievant declined the Agency’s offer to be considered for
reassignment on October 24, 2012 and thus, halted the interactive process. We find that the
Agency properly engaged in the interactive process and that once Grievant halted the
interactive process, they were under no obligation to continue the interactive process.

Grievant requested a change in supervisor as a reasonable accommodation. Generally, the
Commission has held that an employer does not have to provide an employee with a new
supervisor as a reasonable accommodation. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, Question 33
(March 1, 1999)(employer not required to provide employee with new supervisor as reasonable
accommodation; Complainant v. Dep’t of Veterans Affairs, Appeal No. 0120080691 (Mar. 25,
2010). While the Rehabilitation Act does not prohibit the Agency from providing Grievant
with a new supervisor, it does not require the Agency to do so as a reasonable accommodation.
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In the present case, we find the Agency reasonably accommodated Grievant by offering to
conduct a job-search to reassign her into another position. While Grievant is entitled to an
effective accommodation, she is not entitled to the accommodation of her choice. See Lynette
B. v. Dep’t. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). We find that Grievant
was not entitled to a transfer to a different supervisor as a reasonable accommodation under the
circumstances of this case. We find that the Agency fulfilled its obligation to provide Grievant
with a reasonable accommodation when it offered to conduct a job-search to find her another
position. Moreover, we note that on appeal Grievant does not claim she was denied any other
forms of reasonable accommodation.

Denial of Leave

Grievant notes she was denied LWOP on July 20, 2012, to visit her son. She states the
Agency denied her LWOP related to her knee injury on October 5, 2012, October 22, 2012,
October 23 – October 26, 2012, and October 31, 2012 – November 5, 2012. Grievant also
notes she was denied advanced sick leave for the period of October 29 – November 9, 2012.

Grievant does not cite to any similarly situated employees who were allowed to take LWOP
while she was not. Additionally, the record reveals that MCCS-NAF was not authorized to
advance leave (sick or annual).

Hostile Work Environment

We note that Grievant did not allege harassment as one of the allegations in her grievance.
Moreover, to the extent harassment was alleged, there is no indication that she was subjected
to harassment based on her disability.

Termination

The Agency presented legitimate, nondiscriminatory reasons for terminating Grievant:
excessive absenteeism and Inability to Perform the Essential Functions of her Position.
Grievant failed to show that there were similarly situated employees treated differently.

CONCLUSION

Accordingly, we AFFIRM the Arbitrator’s finding of no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

March 9, 2017
Date