U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle W.,1
Complainant,
v.
Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120171603
Hearing No. 550-2015-00398X
Agency No. ATF-2015-1278
DECISION
On March 29, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 23, 2017, final order concerning her 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. For the following reasons, the Commission AFFIRMS
the Agency’s final order.
ISSUES PRESENTED
Whether the Administrative Judge properly issued a decision without a hearing, and whether the
Agency discriminated against Complainant, and subjected her to a hostile work environment based
on her race, national origin, sex, and in reprisal for protected EEO activity.
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 Special
Agent/Criminal Investigator with the Agency’s San Francisco Field Division. Complainant joined
the Agency on April 29, 2013. Report of Investigation (ROI) at pg. 45. After her initial training,
Complainant was assigned to Stockton, California. On March 28, 2014, Complainant was
transferred from Stockton to the Sacramento Field Office, and trained by a Special Agent (SA1)
(White, female, United States of America, no prior EEO activity). ROI at pg. 72.
On July 2, 2014, SA1 and Complainant met to discuss her performance, and SA1 informed
Complainant that she needed to improve her professionalism. Specifically, SA1 stated that
Complainant complained about her commute, and made “negative facial expressions.” Later in the
day, SA1 walked by Complainant’s desk and asked what she was doing. Complainant responded
that she was tracking a package containing a bathing suit. Complainant stated that SA1 asked her,
“are you sure it was a bathing suit, and not a vibrator?” ROI at pgs. 47-48.
On July 11, 2014, Complainant learned that she was getting a new training agent (SA2) (Asian,
male, United States of America, no prior EEO activity). Complainant stated that SA2 gave her
unacceptable ratings for her August and September 2014 training assessments. ROI at pgs. 50-51.
On August 28, 2014, Complainant met with the Acting Assistant Special Agent in Charge
(AASAC) (Caucasian, male, European, prior EEO activity). She sought his advice about her
upcoming move to Reno, Nevada because she was concerned that her husband would divorce her,
and she would have to return to California.2 Complainant stated that AASAC informed her that
she could quit her position and find another job in Illinois to be close to her husband and children.
ROI at pg. 53.
On September 17, 2014, Complainant met with the Acting Resident in Charge (ARAC) (White,
female, United States of America, no prior EEO activity). Complainant stated that ARAC
commented that she had taken too much leave to visit her children and for military training. ARAC
stated that Complainant still had a lot to learn, and suggested that she start looking for other jobs
in case things did not work out with the Agency. ROI at pg. 55.
On September 18, 2014, ARAC issued Complainant a Letter of Expectation informing her that she
needed to improve her performance in the areas of professionalism, report writing, and
interpersonal skills. The letter noted that ARAC conducted a verbal counseling on July 29, 2014,
during which she discussed her concerns about Complainant’s insubordination, and failure to
follow procedures.
2 Complainant worked in California, while her husband and children resided in Illinois. She sought
a voluntary transfer to Reno because she and her husband were both able to obtain positions in
Reno.
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The letter also outlined expectations for Complainant’s performance, and noted that Complainant
risked the possibility of not successfully passing her probation if she did not improve her
performance. Complainant stated that ARAC informed her that she would be watched more closely
because she was a female minority. ROI at pgs. 57, 430-432.
On October 5, 2014, Complainant transferred to Reno, Nevada. ROI at pg. 101. Complainant’s
trainer in Reno was SA3 (White, male, unknown national origin, no prior EEO activity), and her
supervisor was the Resident Agent in Charge (RAC1) (White, male, U.S. citizen, no prior EEO
activity). ROI at pg. 211, 203. On November 7, 2014, AASAC traveled to Reno to inform
Complainant that her performance was “unacceptable.” ROI at pgs. 58, 141.
From December 9, 2014, through January 18, 2015, Complainant was assigned to the Fresno Field
Office for a temporary duty assignment. ROI at pg. 169. On December 19, 2014, Complainant was
involved in an accident while in an Agency-owned vehicle. The Fresno Resident in Charge
(RAC2) (Hispanic, male, Spanish/Irish, prior EEO activity) instructed Complainant to refrain from
communicating with the other party. Complainant contacted the other party, who then contacted
the Fresno Field Office requesting to speak with Complainant’s supervisor. On or around
December 24, 2014, RAC2 met with the driver of the other vehicle, who provided photos of
Complainant’s vehicle; showed him Complainant’s text messages and missed calls from
Complainant’s phone numbers; and shared a voicemail left by Complainant. ROI at pgs. 181, 453-
456.
On February 3, 2015, RAC1 issued Complainant an Expectation Memorandum informing her that
her performance was unacceptable in the elements of professionalism, interpersonal skills, and
surveillance in December 2014. For example, Complainant made unprofessional comments about
her former colleagues in front of other team members and an agent from an outside agency.
Additionally, after Complainant was involved in the December 19, 2014, vehicle accident, she did
not provide accurate information, and disregarded a direct order to not contact the other party when
she called and left a voicemail message that the other party viewed as a threat. RAC1 stated that
Complainant must improve, and remain at a satisfactory level of performance, or she risked
possible termination from the Agency. ROI at pgs. 449-452.
On April 14, 2015, the Assistant Special Agent in Charge (ASAC) (Caucasian, female, North
American/American Indian, prior EEO activity) issued Complainant a Notice of Termination for
unacceptable behavior and poor performance. With regards to Complainant’s performance, ASAC
included incidents when Complainant froze or blocked other team members, which created serious
safety issues. ASAC also stated that Complainant was informed of her need to improve and was
given guidelines to follow, yet her performance remained unacceptable. ASAC noted that
Complainant received a verbal counseling on July 29, 2014, a Letter of Expectation on September
18, 2014, and an Expectation Memorandum on February 3, 2015. ROI at pgs. 458-462.
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EEO Complaint
On December 27, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against, and subjected her to harassment, on the bases of race (Asian), national origin
(Filipino), and sex (female) when:
1. on July 2, 2014, SA1 made an inappropriate, unprofessional comment after
counseling Complainant earlier that same day about maintaining professionalism;
2. on July 2, 2014, SA1 rated her as needing improvement in the area of
professionalism;
3. on July 11, 2014, the Agency assigned Complainant a new training officer;
4. in August and September 2014, management gave Complainant “unacceptable”
ratings on her training assessments;
5. on August 28, 2014, AASAC told Complainant that one option to resolve a personal
dilemma was to quit her job;
6. on September 17, 2014, ARAC commented that while she understood that
Complainant had had to return home to see her children, she should not have been
away so frequently during her training period;
7. on September 18, 2014, ARAC issued Complainant a Letter of Expectation noting
numerous performance deficiencies and warned her that if she failed to improve,
she may not pass her probationary period; and advised her that as a female minority
at the Agency, she would be watched more closely;
8. on November 7, 2014, AASAC and RAC1 counseled Complainant regarding her
ongoing poor performance, and warned her that she may not pass probation and;
9. in retaliation for engaging in prior EEO activity,3 RAC1 issued Complainant a
Letter of Expectation on February 3, 2015.
On May 14, 2015, the Agency amended Complainant’s complaint to include the claim that she
was discriminated against based on reprisal for protected EEO activity when her employment was
terminated, effective April 14, 2015. ROI at pg. 27.
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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing.
3 Complainant initiated her EEO complaint on December 2, 2014. ROI at pg. 30.
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Over Complainant’s objections, the AJ assigned to the case granted the Agency’s July 5, 2016,
motion for a decision without a hearing, and issued a decision without a hearing on January 13,
2017.
As an initial matter, the AJ determined that there was an absence of any genuine dispute of material
fact or issue of credibility. The AJ considered the record in a light most favorable to Complainant,
and found that summary disposition was appropriate.
The AJ determined that Complainant had not established a prima facie case of discrimination based
on her race, national origin, sex, or in reprisal for protected EEO activity. Notably, the AJ found
that Complainant acknowledged that many of the events could not be construed as discriminatory.
For example, Complainant stated that SA1’s remark was not discriminatory; she suffered no harm
when she received a new trainer; and there was no reason to believe that ASAC had any
discriminatory intent when he mentioned that one of her options was to quit her current job and
seek employment closer to her family. Additionally, Complainant stated that there was no
discriminatory intent when ARAC stated that it was unfortunate that she missed so much work;
when she received the September 18, 2014, Letter of Expectation; when she was counseled on her
performance on November 7, 2014; or when she received the February 3, 2015, Expectation
Memorandum. Further, the AJ found that Complainant did not identify any similarly situated
probationary employees who were treated more favorably after amassing such a significant record
of performance and conduct problems from numerous sources in different offices.
Nevertheless, the AJ found that the Agency articulated nondiscriminatory reasons for the actions.
The AJ noted that numerous different supervisors and trainers in several different offices observed
similar ongoing deficiencies in Complainant’s lack of professionalism, poor judgment,
substandard technical skills, and poor grasp of protocol. The AJ determined that the record
contained evidence showing serious deficiencies, and Complainant did not produce any contrary
factual evidence. Rather, Complainant acknowledged that many of the cited deficiencies were
valid.
The AJ concluded that Complainant did not identify any significant, probative evidence tending
to support her allegation of unlawful discrimination such that a reasonable trier-of-fact could
reasonably resolve the complaint in her favor, and granted summary judgment in favor of the
Agency.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant
appeal, and submitted a brief in support of her appeal on April 25, 2017. The Agency submitted
an opposition brief on May 26, 2017.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that witnesses provided statements calling into question the
credibility of ARAC, SA1, RAC2, and another Special Agent (SA4).
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She further argues that AASAC and ASAC relied upon information from ARAC, SA1, and SA4.
Complainant asserts that there are “outright contradictions” by the management officials.
Regarding Complainant’s hostile work environment claim, she states that she described a
pervasive, continuous pattern of harassing conduct that changed the conditions of her employment.
The Agency argues that Complainant did not show that the AJ erred as a matter of law, and did
not establish that the evidence in the record supports her assertion that disputed issues of material
fact existed. Further, the Agency states that the AJ accepted Complainant’s version of events, and
did not make credibility determinations. The Agency noted that the AJ relied heavily upon
Complainant’s own statements when determining that the management officials’ actions were not
discriminatory.
With regards to Complainant’s argument that statements by two witnesses show a lack of
credibility by management officials, the Agency contends that neither witness mentions RAC,
SA1, or SA4 in their statements, and have no first-hand knowledge of Complainant’s issues with
them because the witnesses work in Reno, and the named officials worked with Complainant in
Sacramento. The Agency requests that the Commission affirm its final order implementing the
AJ’s decision in favor of the Agency.
ANALYSIS AND FINDINGS
Standard of Review
In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (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”).
Decision without a Hearing
We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record.
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The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal
No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding
a hearing unless he or she ensures that the party opposing the ruling is given: (1) ample notice of
the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
In this case, we find that there are no genuine issues of material fact. On appeal, Complainant
argues that witnesses provided statements showing that management officials are not credible.
However, these witnesses only provided information regarding SA3’s treatment of Complainant,
and did not provide evidence to dispute the credibility of any management official named in the
instant complaint. To the extent that Complainant asserts that her own statements contradict those
of the management officials, we find that the AJ viewed the evidence in her favor. Accordingly,
we find that there is no conflicting evidence that raises a genuine issue or shows a lack of
credibility, and a decision without a hearing was appropriate.
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff’d, 545 F.2d 222 (1st Cir. 1976). For complainant to prevail, she must first establish a prima
facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse
employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438
U.S. 567 (1978). Once complainant has established a prima facie case, the burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden
reverts back to complainant to demonstrate by a preponderance of the evidence that the agency’s
reason(s) for its action was a pretext for discrimination. At all times, complainant retains the
burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her race, sex, national origin, and in reprisal for prior EEO activity, we find that the Agency
proffered legitimate, nondiscriminatory reasons for their actions.
For incident 1, SA1 stated that she made a comment that she hoped that Complainant did not order
any battery-operated devices. ROI at pg. 72. ARAC stated that when she learned of the incident,
she called Complainant, who stated that she was not offended or upset, and knew that SA1 was
joking. ROI at pgs. 91, 47. With regards to incident 2, SA1 stated that she spoke with Complainant
in April 2014, about her negative facial expressions, such as rolling her eyes, and that Complainant
did not take corrective action. SA1 also stated that Complainant made negative comments about
SA1 to other agents and employees in the office. ROI at pg. 74.
Regarding incident 3, SA1 stated that she suggested a change in Complainant’s trainer to provide
her with different work experiences, and in the hopes that Complainant would respond more
favorably to a different training agent. ARAC added that she reassigned Complainant to a more
senior agent who could expose her to different techniques and cases. ROI at pgs. 76, 96.
For claim 4, SA2 stated that he gave Complainant unacceptable ratings for August and September
2014, because of her poor performance. In his assessment reports, SA2 noted that Complainant
did not initiate investigations; did not use proper handcuffing techniques taught in training;
blocked the doorway when entering a residence to execute a search warrant; and did not properly
process evidence. ROI at pgs. 155, 408-422.
With regards to incident 5, AASAC stated that he did not recall the conversation, and had no desire
for Complainant to quit her job. ROI at pg. 137. For claim 6, ARAC stated that when she spoke
with Complainant, she stated that it was unfortunate that due to her combined military and annual
leave, she was unable to take full advantage of all the training opportunities before transferring to
Reno. ROI at pg. 102.
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For claim 7, ARAC stated that Complainant continued to exhibit unprofessional behavior and that
she did not seem to be taking the matter seriously, or appreciate the effect her lack of
professionalism would have on her career. ARAC added that she informed Complainant that based
on her own experience, women could be held to higher standards and it was important to maintain
positive relationships with her coworkers. ARAC denied saying anything about Complainant being
a minority. SA2 stated that the topic of “female minority” was never discussed, and that ARAC
was providing advice from the perspective of a female Special Agent. ROI at pgs. 103, 159.
Regarding claim 8, AASAC stated that based on Agency procedure, when probationary employees
fail multiple training evaluations, they must be notified that they are in danger of not passing their
probationary periods. ROI at pg. 141. For claim 9, RAC1 stated that he issued Complainant a letter
of expectation on February 3, 2015, and noted that she failed to meet acceptable standards of
performance and conduct. ROI at pg. 204.
In response to Complainant’s removal from the Agency, ASAC stated that her conduct and
performance did not demonstrate her fitness for continued employment. ASAC stated that
Complainant was afforded numerous opportunities and constructive criticism, but became
defensive and responded to the comments as a personal attack. ASAC added that Complainant
demonstrated a lack of decision-making abilities during tactical training, which were
life-threatening to herself and others in the field. ROI at pgs. 221-223.
We find that Complainant has not shown that the reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. As
discussed above, we find that Complainant has not provided evidence showing that the
management officials are not believable. Rather, the record contains many performance appraisals
and documents showing that multiple management officials and trainers observed issues with
Complainant’s performance and conduct throughout her employment with the Agency. ROI at pgs.
281-422.
Additionally, Complainant argued the reasons stated in her termination letter were “magnified” to
justify her removal, but that they were not discussed with her. However, the record shows that
management officials repeatedly informed Complainant of her performance and conduct issues, to
give her chance to improve.
The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
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Accordingly, we find that Complainant has not shown that the Agency discriminated against her
based on her race, national origin, sex, or in reprisal for protected EEO activity when her managers
gave her “unacceptable” performance appraisals; issued her letters of expectation; and ultimately
removed her from the Agency.
Harassment
Assuming that the incidents occurred as Complainant described, we find that taken together, they
did not create an unlawful hostile work environment. Harassment is actionable if it is sufficiently
severe or pervasive such that it results in an alteration of the conditions of the complainant’s
employment. See EEOC Notice No. 915.002, Enforcement Guidance on Harris v. Forklift
Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show
that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on the
statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering
with her work performance and/or creating an intimidating, hostile, or offensive work
environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v.
United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).
Complainant has not shown that the conduct was due to her protected categories. Specifically, for
incident 1, Complainant stated that she thought SA1 was joking and “trying to be personal”; and
for incident 7, she stated that ARAC’s comment that she would be watched more closely “was not
necessarily discriminatory.” ROI at pgs. 47,57. Additionally, we find that many of the incidents
occurred when her managers discussed Complainant’s conduct and performance issues in an
attempt to get her to improve her performance, not to interfere with her performance. Accordingly,
we find that Complainant has not shown that the Agency harassed her based on her race, national
origin, sex, or in reprisal for protected EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the AJ properly issued a decision without a hearing, and
AFFIRM the Agency’s final order adopting the AJ’s decision finding that the Agency did not
discriminate against, or subject Complainant to harassment, based on her race, national origin, sex,
or in reprisal for protected EEO activity.
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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).
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
December 18, 2018
Date
