Erik S.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120181994 (E.E.O.C. Sep. 25, 2019)

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

Erik S.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181994

Agency No. BOP-2016-0197

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 7, 2018,
final decision concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission MODIFIES the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency properly dismissed several claims for untimely
EEO Counselor contact; and (2) whether the preponderance of the evidence in the record
establishes that Complainant was subjected to discrimination based on race, national origin, sex,
religion, and/or disability when he was not selected for GL-0007-08 Correctional Officer
positions in 2015 and 2016.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GL-0007-07
Correctional Officer at the Agency’s Federal Correctional Complex (FCC) in Coleman, Florida
(FCC Coleman). Within FCC Coleman, Complainant was assigned to the medium-security
facility (the Medium). Other FCC Coleman facilities included United States Penitentiary 1 (USP
1), United States Penitentiary 2 (USP 2), the low-security facility (the Low), and the medical
department. The FCC Coleman Complex Warden (S1) stated that she was administratively
responsible for all decisions at FCC Coleman and that she also was the Warden of USP 1.

Complainant is a Caucasian male and a Muslim. According to Complainant, he was born in the
United States and his national origin is American, but sometimes he is perceived as Arab because
he has a common Arab first name, because he has more traditional values than some Americans
due to his cultural upbringing, and because he was raised “amongst people who are commonly
identified as Arabs.” Report of Investigation (ROI) at 71. Complainant averred that he has 12
medical conditions that constitute disabilities, including Attention Deficit Hyperactivity Disorder
(ADHD), recurrent major depression, obstructive sleep apnea, sleep disturbance, major
depression disorder, chronic back pain, fasciitis, atypical chest pain, asthma, allergic rhinitis,
gastroesophageal reflux disease (GERD), and ocular toxoplasmosis. Complainant stated that he
is a military veteran and that most of these impairments are related to his military service.
Complainant alleged that some of his supervisors have a negative view of him because he often
takes sick leave for his disabilities.

In August 2015, Complainant timely applied for a GL-0007-08 Correctional Officer position
advertised under vacancy announcement COA-2015-0075 (Position 1). The Agency generated
three certificates: a merit promotion certificate of 59 applicants, an exception certificate of seven
candidates, and an exception certificate for 30-percent or more disabled veterans of 10
applicants. Complainant was referred on the merit promotion certificate as well as on the
exception certificate for 30-percent or more disabled veterans.

According to S1, the warden of each FCC Coleman facility selected candidates for the Position 1
vacancies in their facility, so she selected the candidates for USP 1. S1 averred that wardens
typically make selections based on the submitted application materials and based on reference
checking, or “vouchering,” that is done by supervisors. ROI at 106. The USP 2 Warden (S2)
stated that wardens making selections for promotional opportunities typically consider
Correctional Officers from their facilities before considering candidates from other FCC
Coleman facilities or other Agency facilities and that the wardens ask their associate wardens to
voucher the candidates. According to the Warden of the Low (S3), there were no vacancies at the
Low in late 2015, so he did not make any selections from these certificates. S1, S2, and S3 stated
that they were not involved in selecting candidates at the Medium.
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The Associate Warden of the FCC Coleman Medical Department (S4) stated that the individual
who was the Warden of the Medium in November 2015 (S5) has since retired.2

On December 3, 2015, the Agency selected 24 candidates for Position 1, including one candidate
who was selected from the exception certificate for 30 percent or more disabled veterans. Of the
24 selectees, three were female and 21 were male. Five selectees self-identified as Caucasian,
four as Hispanic, and two as African American, and the other selectees did not identify their
race. One selectee self-identified as having a physical disability. According to the Agency, it
does not have information about the religion or national origin of any of the selectees. The record
contains the applications submitted by the selectees and a Standard Form 50 (SF-50),
Notification of Personnel Action showing the effective date of the reassignment or promotion for
each selectee.

Complainant stated that he was very qualified for Position 1 because of his performance and
experience, noting that he is frequently assigned to train new Correctional Officers. Complainant
averred that he has not been disciplined while working for the Agency. According to
Complainant, some of the selectees for Position 1 had less experience than he did or had
disciplinary issues in the past. Complainant therefore alleged that the only reason he was not
selected for Position 1 was because of his race, national origin, sex, religion, and/or disability.

In March 2016, Complainant timely applied for a GL-0007-08 Correctional Officer position
advertised under vacancy announcement COA-2016-0034 (Position 2). The vacancy
announcement for Position 2 stated that it was not open for applications under a special hiring
authority, such as veterans’ preference. Complainant only applied under the special hiring
authority for 30-percent or more disabled veterans’ preference. According to the record, when
Complainant submitted his application, he received a notification that the vacancy was not open
to applications under a special hiring authority and that he would need to apply for the vacancy
under a different consideration option, such as merit promotion, if he wanted his application to
be considered. ROI at 1029, 1031-32. Complainant did not modify his application.

On May 5, 2016, the Agency generated two certificates: a merit promotion certificate of 68
applicants and an exception certificate of 22 applicants. Complainant was not referred on either
certificate. On July 26, 2016, the Agency selected 60 candidates for Position 2. Complainant
alleged that he was discriminated against based on his disability because the Agency did not
utilize veterans’ preference. According to Complainant, even if the Agency decided not to use
the special hiring authority, his application should have been automatically “knocked down” to a
different consideration option. ROI at 88. The record contains the applications submitted by all
candidates referred for consideration for Position 2. The record also contains an SF-50 for each
selectee who accepted the job offer.

2 The EEO Investigator wrote a memorandum indicating that the Agency told him during the
investigation that it did not have contact information for S5. ROI at 1181.
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Complainant initiated contact with an EEO Counselor on November 23, 2015. On March 3,
2016, Complainant filed an EEO complaint, which he subsequently amended, alleging that the
Agency discriminated against him on the bases of race (Caucasian), national origin (American,
perceived as Arab), sex (male), religion (Muslim), and disability (physical and mental) when:

1. From October 2010 through January 2011, he was denied a reasonable
accommodation;

2. On March 20, 2013; September 5, 2013; April 18, 2014; November 20, 2014;
August 26, 2015; and September 26, 2015, he was not selected for promotion;

3. On May 8, 2015, he was denied training;

4. On November 30, 2015, he learned that he was not selected for Position 1; and

5. On May 10, 2016, he learned that he was not selected for Position 2.

The Agency dismissed claims 1 through 3 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely
EEO Counselor contact. At the conclusion of the investigation into the accepted non-selection
claims, the Agency provided Complainant with a copy of the report of investigation and notice of
his right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b).

In its final decision, the Agency found that Complainant failed to establish that he was an
individual with a disability for the purposes of the Rehabilitation Act. The Agency determined
that Complainant failed to establish a prima facie case of discrimination based on race, sex,
religion, and/or national origin with respect to his non-selection for Position 1. The Agency also
determined that Complainant failed to establish a prima facie case of discrimination based on
race, sex, religion, and/or national origin with respect to his non-selection for Position 2.
However, the Agency found that, to the extent that Complainant established a prima facie case of
disability discrimination, the Agency provided a legitimate, nondiscriminatory reason for not
referring his application for Position 2 to the selecting official, and Complainant had failed to
establish pretext for discrimination. The decision concluded that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant provides pleadings from an appeal he filed with the Merit Systems
Protection Board (MSPB) on August 6, 2016, pursuant to the Veterans Employment
Opportunities Act of 1998 (VEOA), alleging that the Agency violated his rights under a statute
or regulation relating to veterans’ preference when he was deemed ineligible for Position 2.
Complainant did not submit a statement or brief with his appeal.
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In response to Complainant’s appeal, the Agency contends that its final decision finding no
discrimination should be affirmed. The Agency states that, for Position 1, “[r]eference checks
were subsequently conducted on all of the applicants named on the aforementioned lists. All
applications and vouchers were then forwarded to the selecting officials,” including S1, S2, and
S3. Agency’s Brief at 4 (citations omitted). According to the Agency, Complainant failed to
establish a prima facie case of discrimination with respect to his non-selection for Position 1. The
Agency further states that, assuming arguendo that Complainant established a prima facie case of
discrimination, the Agency’s legitimate, nondiscriminatory reasons for not selecting
Complainant for Position 1 were that the applications of the selectees reflected that they were at
least as qualified as Complainant and that the Agency exercised its discretion to choose among
equally qualified candidates. Finally, the Agency argues that Complainant failed to establish
pretext for discrimination with respect to both Position 1 and Position 2.

ANALYSIS AND FINDINGS

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 (EEO MD-110), at Chap. 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”).

Procedural Dismissals

The Agency dismissed claims 1 through 3 for untimely EEO Counselor contact. EEOC
Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a
portion of a complaint that fails to comply with applicable time limits contained in § 1614.105,
§ 1614.106 and § 1614.204(c), unless the Agency extends the time limits in accordance with
§ 1614.604(c). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person
must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to
be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if the complainant can establish that he was not aware of the time limit, that
he did not know and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented by circumstances beyond
his control from contacting the EEO Counselor within the time limit, or for other reasons
considered sufficient by the Agency or Commission.

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With respect to claims 2 and 3, which concern denied promotions between March 2013 and
September 26, 2015, and denied training in May 2015, the record is clear that Complainant did
not contact an EEO Counselor in a timely manner. Complainant has not provided a reason for his
untimely EEO Counselor contact, and upon review we find no reason to extend the time limit
under these circumstances. Accordingly, the Agency properly dismissed these claims.

With respect to claim 1, the Commission notes that the Agency’s duty to reasonably
accommodate is ongoing, so an assessment of timeliness must consider whether Complainant is
alleging that, as of the date of EEO Counselor contact, the Agency was continuing to deny a
needed reasonable accommodation. However, a careful review of Complainant’s formal
complaint and the EEO Counselor’s Report reveals that Complainant was alleging that the
Agency failed to accommodate him after a 2010 injury and that, when he contacted the EEO
Counselor, he was not alleging that the Agency remained unwilling to provide him with the
accommodation he needed. Therefore, this claim was properly dismissed.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory
reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant’s Non-Selection for Position 1

Complainant alleged that he was subjected to unlawful discrimination when he was not selected
for promotion to a GL-0007-08 Correctional Officer position in 2015. In the nonselection
context, Complainant may establish a prima facie case of race, national origin, sex, religion, or
disability discrimination by showing that: (1) he is a member of a protected class; (2) he was
qualified for the position; (3) he was not selected for the position; and (4) he was accorded
treatment different from that given to persons otherwise similarly situated who are members
outside of his protected group. EEOC Enforcement Guidance on O’Connor v. Consolidated Coin
Caterers Corp., EEOC Notice No. 915.002 (Sept. 18, 1996); Williams v. Dep’t of Educ., EEOC
Request No. 05970561 (Aug. 6, 1998). Here, Complainant has shown that: (1) he was a Muslim,
Caucasian male with a disability whose national origin was perceived as Arab; (2) he was
referred for consideration on the merit promotion certificate as well as on the exception
certificate for 30-percent or more disabled veterans; (3) he was not selected for the position; and
(4) the Agency selected 24 candidates for the position, including 21 males, five individuals who
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self-identified as Caucasian, and one individual with a self-identified disability. Accordingly, we
find that Complainant established prima facie cases of national origin and religion discrimination
but failed to establish a prima facie case of race, sex, or disability discrimination.

We further find that the Agency has failed to articulate a legitimate, nondiscriminatory reason for
not selecting Complainant. Although it is not entirely clear from the record, it seems that S5 was
the selecting official for Position 1 at the FCC Coleman Medium. However, there is no affidavit
in the record from S5 or any other Agency witness explaining why Complainant was not
selected. The record reflects that S5 retired prior to the investigation of the complaint and that
the EEO Investigator was unable to contact S5. None of the responsible management officials or
witnesses interviewed during the investigation, including S1, S2, S3, and S4, had any direct or
indirect knowledge of S5’s selection process or his reasons for not selecting Complainant. S1,
S2, and S3 provided general testimony about the typical selection process at FCC Coleman, but
they did not explain S5’s selection process for Position 1 or give a reason why S5 did not select
Complainant. According to the record, the EEO Investigator made multiple requests to FCC
Coleman officials and to officials in the Agency’s Consolidated Staffing Unit (CSU) in Grand
Prairie, Texas, for an explanation of why Complainant was not selected for Position 1. ROI at
440-41, 1116-22, 1134-38, 1140-42, 1157-58, 1163-64. It does not appear that the Agency ever
provided the requested information or suggested a witness who had, or even might have had, the
requested information.

Furthermore, the record is not clear regarding the use of vouchers in the selection process for
Position 1. On September 13, 2016, the EEO Investigator made two separate requests for all
vouchers created at FCC Coleman during the selection processes for Positions 1 and 2. ROI at
1156, 1163. On September 16, 2016, the Section Chief of CSU (HR1) responded, “Review of the
files revealed no reference checking was performed for [Complainant].” ROI at 1155-56. The
record does not contain any vouchers for any applicants for Positions 1 or 2, including
Complainant. Moreover, although HR1 told the EEO Investigator that no reference checking or
vouchering was conducted for Complainant for Position 1, the Agency’s appellate brief states
that vouchering was conducted on all referred candidates and that the vouchers were forwarded
to the selecting official.

We find that the Agency has not met its burden of production. While an agency’s burden of
production is not onerous, it must provide a specific, clear, and individualized explanation for a
nonselection so the complainant has the opportunity to prove that the agency’s explanation was a
pretext for discriminatory animus. See Byron E. v. Tennessee Valley Authority, EEOC Appeal
No. 0120140939 (June 9, 2016). In this case, there is no probative evidence regarding what
specific characteristics, experiences, qualifications, or other criteria were examined by the
selecting official in their comparison of Complainant and the selectees. See Koudry v. Dep’t of
Education, EEOC Appeal No. 0120080343 (Nov. 2, 2009) (affidavit from complainant’s first-
line supervisor insufficient to meet agency’s burden of production where supervisor was not
involved in selection process), request for reconsid. denied, EEOC Request No. 0520100196
(Apr. 13, 2010) (best qualified list and applications of complainant and selectee do not explain
how complainant’s qualifications were evaluated in comparison to selectee’s and do not provide
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specific, individualized explanation of why agency did not select complainant).

In light of the Agency’s failure to provide a sufficient articulation of the reasons for not selecting
Complainant for the position at issue, the Commission finds that the Agency failed to overcome
Complainant’s prima facie cases of national origin and religion discrimination. Accordingly, we
find that the Agency discriminated against Complainant on the bases of national origin and
religion when it did not select him for the GL-0007-08 Correctional Officer position in 2015.

Complainant also alleged that he was subjected to unlawful discrimination when he was not
selected for promotion to the GL-0007-08 Correctional Officer position in 2016. Here, we find
that the prima facie inquiry may be dispensed with, because the Agency has articulated
legitimate and nondiscriminatory reasons for not referring or selecting Complainant for Position
2. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v.
Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The Agency’s
legitimate, nondiscriminatory reason for not referring Complainant to the selecting officials or
selecting him for Position 2 was that Complainant applied through the 30 percent or more
disabled veterans’ special hiring authority, and FCC Coleman did not use this optional special
hiring authority for vacancy announcement COA-2016-0034. To the extent that Complainant
attempts to establish pretext by arguing that not using this special hiring authority constituted
disability-based animus, we do not find that the preponderance of the evidence in the record
establishes this to be the case. Moreover, the record reflects that Complainant was eligible for
consideration under merit promotion procedures, that he was warned that his application would
not be considered if he only applied through the 30 percent or more disabled veterans’ special
hiring authority, and he did not modify his application. We therefore find that Complainant has
not established discrimination with respect to Position 2 was discriminatory.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM in part and VACATE and REMAND in part the
Agency’s final decision for further processing in accordance with this decision and the ORDER
below.

ORDER (D0617)
The Agency is ORDERED to take the following remedial action within sixty (60) calendar days
after this decision is issued:
1. The Agency shall promote Complainant to the GL-0007-08 Correctional Officer position
advertised under vacancy announcement COA-2015-0075, retroactive to the date of his
nonselection.
2. The Agency shall determine the appropriate amount of back pay, with interest, and other
benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60)
calendar days after the date this decision is issued.
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3. The Complainant shall cooperate in the Agency's efforts to compute the amount of back
pay and benefits due and shall provide all relevant information requested by the Agency.
The Agency will ensure that all tax consequences are taken into account. If there is a
dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a
check to the Complainant for the undisputed amount within sixty (60) calendar days of
the date the Agency determines the amount it believes to be due. The Complainant may
petition for enforcement or clarification of the amount in dispute. The petition for
clarification or enforcement must be filed with the Compliance Officer, at the address
referenced in the statement entitled "Implementation of the Commission's Decision."
4. The Agency shall conduct and complete a supplemental investigation on the issue of
Complainant's entitlement to compensatory damages and shall afford him an opportunity
to establish a causal relationship between the Agency's discrimination and his pecuniary
or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to
compute the amount of compensatory damages and will provide all relevant information
requested by the Agency. The Agency will issue a final decision on the issue of
compensatory damages with appeal rights to the Commission. 29 C.F.R. § 1614.110. The
Agency shall submit a copy of the final decision to the Compliance Officer at the address
set forth herein. If there is a dispute regarding the exact amount of compensatory
damages, the Agency shall issue a check to the Complainant for the undisputed amount
within sixty (60) calendar days of the date the Agency determines the amount it believes
to be due. The Complainant may petition for enforcement or clarification of the amount
in dispute.
5. Within ninety (90) calendar days of the date this decision is issued, the Agency shall
provide a minimum eight hours of in-person or interactive EEO training regarding
management’s responsibilities under Title VII to the responsible management officials,
including S1, S2, S3, S4, and HR1.
6. The Agency shall consider taking appropriate disciplinary action against the responsible
management officials, including S1, S2, S3, S4, and HR1. The Agency shall report its
decision to the Compliance Officer referenced herein. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the identified management officials have left the Agency's employment, the Agency
shall furnish documentation of the departure date(s).
7. Within thirty (30) calendar days of the date the decision is issued, the Agency shall post a
notice as set forth below in the statement entitled “Posting Order.”
The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).
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Further, the report must include supporting documentation of the Agency's calculation of back
pay and other benefits due Complainant, including evidence that the corrective action has been
implemented.
POSTING ORDER (G0617)
The Agency is ordered to post at its Federal Correctional Complex in Coleman, Florida (FCC
Coleman) facility copies of the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision was issued, and shall
remain posted for 60 consecutive days, in conspicuous places, including all places where notices
to employees are customarily posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The original signed notice is
to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation
of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
The report must be in digital format and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g).
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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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).

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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. 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.

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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

September 25, 2019
Date