Israel F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

0120181863 (E.E.O.C. Sep. 26, 2019)

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

Israel F.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120181863

Hearing No. 531-2017-00100X

Agency No. 4K-210-0099-16

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 9, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS in part
and REVERSES in part the Agency’s final decision.

ISSUE PRESENTED

The issue is whether Complainant established that the Agency discriminated against, and
harassed him, based on his age, or race, or in reprisal for filing the instant EEO complaint.

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 Carrier Technician
at the Agency’s Loch Raven Branch in Baltimore, Maryland. Complainant stated that. on April
16, 2016, a supervisor (S1) (age 45, African American) yelled at him for not taking “cards and
clippers.” Complainant also stated that he was spoken to in a loud, threatening manner on April
20, April 22, May 30, and June 16, 2016. Report of Investigation (ROI) at 144-48.

In addition, Complainant stated that, on April 22, 2016, S1 removed him from his assignment to
avoid giving him overtime. Later that day, another supervisor (S2) (age 47, African American)
called Complainant into a meeting with S1 and Complainant’s Shop Steward (SS). Complainant
stated that S2 informed him that filing an EEO complaint was taken as a “threat” to a supervisor.
Complainant stated that a manager (M1) (age 43, Black) joined the meeting and yelled at him,
stating that Complainant “wasn’t allowed” to file an EEO complaint. ROI at 155, 146, 191-93.

Complainant further stated that, on April 23, 2016, S1 and S2 subjected him to street
supervision. ROI at 153. Complainant stated that S1 conducted pre-disciplinary meetings with
him on May 5, and June 7, 2016. Complainant stated that S2 conducted pre-disciplinary
meetings with him on June 13, and August 3, 2016. ROI at 160-63. Complainant stated that he
was also removed from his assignments on May 30, June 3-4, and July 19-20, 27-30, 2016. ROI
at 155-56.

Complainant asserted that, on June 9, 2016, S1 gave his personal cellphone number to a
coworker. ROI at 166. He also asserted that S1 stated during a July 19, 2016, meeting that if they
did not follow S1’s instructions, they would be fired. ROI at 168. Complainant stated that, on
July 22, 2016, S2 instructed him not to wear his hat. ROI at 170.

Complainant stated that, in February 2016, he submitted a request for three (3) weeks of annual
leave, from August 15 through September 3, 2016, which was approved. However, Complainant
was charged with eight (8) hours of absence without leave (AWOL) for September 3, 2016.
Complainant noted that he had 7.59 hours of annual leave available, and he should have been
charged .41 units of leave without pay (LWOP), and not charged AWOL. ROI at 214, 249.

On September 7, 2016, Complainant submitted two leave requests, one for eight (8) hours for
jury duty on September 27, 2016, and the other for 16 hours of LWOP for a “trial.” S1 approved
the first request, but denied the second request, stating that Complainant had insufficient leave.
ROI at 210-11. On September 28, 2016, Complainant informed S1 that he was not available to
work on his non-scheduled day on October 3, 2016, due to two doctors’ appointments.
Complainant also submitted a leave request, which was approved. However, Complainant stated
that he was then scheduled to work on October 3, 2016. ROI at 214.

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EEO Complaint

On August 11, 2016, Complainant filed an EEO complaint alleging that the Agency
discriminated against, and harassed him, on the bases of race (Caucasian) and age (42) when:

1. on April 16, 20, and 22, 2016; May 30, 2016; June 16, 2016; and other dates to be
provided, he was spoken to in a loud, threatening manner;

2. on April 22, 2016, he was informed that filing an EEO complaint was considered
a threat against a supervisor;

3. on April 22, 2016, he was notified that he was not permitted to file an EEO
complaint over his management’s actions;

4. on April 23, 2016, he was subjected to street supervision;

5. on April 22, 2016; May 20, 2016; June 3-4, 2016; June 13, 2016; July 19-20 and
27-30, 2016; August 4-6, 2016; and other dates to be provided, he was not
permitted to work part of his assigned route;

6. on May 5 and 30, June 7 and 13, and August 3, 2016, he was subjected to pre-
disciplinary interviews;

7. on June 9, 2016, his personal cellphone number was provided to a coworker;

8. on July 19, 2016, he was informed that he would be fired if he failed to follow
instructions; and

9. on July 22, 2016, he was instructed not to wear his hat.

Complainant also alleged discriminatory harassment in reprisal for filing his current EEO
complaint when:

10. in pay period 19, he was denied annual leave for 120 hours, which was pre-
approved in February;

11. on September 7, 2016, he submitted a leave request for jury duty, and was
required to bring in additional documentation;

12. on September 7, 2016, he requested LWOP to attend a trial, and his request was
denied for insufficient leave balance; and

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13. on September 28, 2016, he requested not to work on his non-scheduled day on
October 3, 2016, and he was scheduled to work.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing, but the AJ dismissed the hearing request because Complainant
did not comply with the AJ’s orders, and failed to show good cause for his non-compliance.3 The
AJ remanded the complaint to the Agency, which issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

As an initial matter, the Agency noted that allegations of harassing conduct that include discrete
actions that would independently state timely claims, outside of a harassment framework, are
properly reviewed in the context of disparate treatment. As such, the Agency analyzed incidents
4, 5, 6, 9, and 10-13, as discrete acts of alleged discrimination. The Agency found that
Complainant did not establish a prima facie case of discrimination based on age or race, but it
assumed that he had, for the sake of argument. The Agency also found that Complainant
established a prima facie case of discrimination based on reprisal with respect to claims 10-13.

The Agency then found that the management officials articulated legitimate, nondiscriminatory
reasons for their actions. For claim 4, S1 stated that managers are required to perform two driver
observations each day. S1 added that Complainant was not cited for any infractions on April 23,
2016. Regarding claim 5, S1 stated that Complainant worked the route that he was assigned to
work on the listed dates, but that Complainant wanted to work a “mounted route” every day, and
Carrier Technicians are required to work a circuit, meaning they are required to work their
assigned route on the circuit on specific days.

For claim 6, S1 stated that she conducted a pre-disciplinary interview with Complainant on June
7, 2016, for failure to maintain his schedule, but no corrective action resulted from the interview.
S2 stated that she did not recall giving Complainant a pre-disciplinary interview on the dates
indicated. Regarding claim 9, S2 stated that Complainant was instructed to remove his hat
because it was not a regulation Agency hat. For claim 10, S1 stated that Complainant was “short”
and did not have three weeks of annual leave available.

Regarding claim 11, S1 stated that employees are required to submit a copy of the juror
summons, with a request for leave for jury duty, and documentation from the courthouse when
they return to work. S1 stated that Complainant provided the documentation, and he was granted
Court Leave for September 27, 2016. For claim 12, S1 stated that Complainant’s leave request
did not have the required court summons, and that he had insufficient leave.

2 Complainant requested to amend his case to add claims 10-13 on October 5, 2016.

3 Complainant does not challenge the dismissal of his hearing request.
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Regarding claim 13, S1 stated that she forgot Complainant’s request, and that when she posted
the schedule, Complainant did not bring to her attention that he had previously requested to be
off work on October 3, 2016. The Agency found that Complainant did not provide sufficient
evidence to show that management’s reasons for their actions were pretextual.

For Complainant’s harassment claim, the Agency stated that claims 4, 5, 6, 9, and 10-13 could
not form the basis of a hostile-environment claim because management had acted in a non-
discriminatory manner. With respect to the remaining claims, the Agency found that the vast
majority of the acts were matters which occupy the normal scope and course of industrial
relations, such as work assignments and supervisory instructions. Additionally, the Agency
found that these incidents were not hostile, abusive, or offensive, or unreasonably interfered with
his work performance, and did not rise to the level of severe or pervasive harassment. The
Agency concluded that the record did not support a finding that Complainant was subjected to
discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency’s decision is “patently false.” Complainant
provides additional statements in support of his appeal. For example, Complainant asserts that
SS’s statement supports his contention that his supervisors informed him that filing an EEO
claim is considered a “threat” against them, and that M1 stated that Complainant was not
permitted to file an EEO complaint. Additionally, Complainant states that per Agency policy,
when leave is approved, and an employee has an insufficient leave balance, it is to be changed to
LWOP; and that an employee may select annual leave or LWOP for court-related leave.

The Agency argues that Complainant failed to establish a prima facie case of discrimination with
regard to the allegations in the instant complaint; management articulated legitimate,
nondiscrimination explanations; and Complainant did not present evidence that management’s
explanations were pretext for discrimination. The Agency requests that the Commission sustain
its final decision.

ANALYSIS AND FINDINGS

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at 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”).
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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); 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, he 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. Furnco Constr.
Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. 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 his 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).

EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation
for opposing any unlawful discriminatory practice or for participating in any stage of the EEO
complaint process. A complainant may establish a prima facie case of reprisal by showing that:
(1) he engaged in protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000). Close temporal proximity is sufficient to infer a
causal nexus between an employee's protected activity and an adverse action on the part of an
employer. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001) (noting that
“cases that accept mere temporal proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be ‘very close’”).

Further, comments that, on their face, discourage an employee from participating in the EEO
process violate the letter and spirit of the EEOC regulations and evidence a per se violation of
the law. Binseel v. Dep’t of the Army, EEOC Request No. 05970584 (Oct 8, 1998) (per se
violation found where complainant told that filing an EEO suit was “wrong way to go about
getting a promotion”). “When a supervisor's behavior has a potentially chilling effect on the
ultimate tool that employees have to enforce equal employment opportunity, the behavior is a per
se violation.” Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009),
request for reconsideration denied, EEOC Appeal No. 0520090654 (Dec. 16, 2010). Central to a
finding of per se reprisal is that the conduct is reasonably likely to have a chilling effect on
deterring the complainant or a reasonable employee from engaging in, or pursuing, protected
activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018).

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In this case, incidents 2 and 3 can be considered claims of per se reprisal. Complainant alleged
that S2 stated that filing an EEO complaint was a “threat” to a supervisor and that M1 stated that
he was not allowed to file an EEO complaint. Both S2 and M1, however, denied making the
alleged statements regarding Complainant’s EEO activity. ROI at 314, 326. Complainant asserts
that SS’s statement supports his claim that his managers stated that filing an EEO complaint was
a “threat,” and that he was “not allowed” to file an EEO complaint. However, we do not find that
SS corroborates Complainant’s assertions. SS noted that Complainant stated during the April 22,
2016, meeting that he was going to file an EEO complaint, and he and his managers discussed
the reason for the comment, such as Complainant’s feeling that there was a “disparity in
treatment” as compared to other carriers. However, we note that SS did not state that anyone
made statements related to an EEO complaint being a “threat,” or “not allowed.” ROI at 192-93.
The evidence does not establish that managers made the alleged statements. Accordingly, the
evidence does not establish a per se violation of the law.

For the purposes of this decision, we will assume that Complainant established prima facie cases
of discrimination based on his age and race for claims 4-6 and 9. We find that Complainant
established a prima facie case of reprisal discrimination for claims 10-13.

The record shows that Complainant initiated the current EEO complaint on June 5, 2016, and
that S1 responded to Complainant’s allegations on July 15, 2016. ROI at 45-46. We find that
Complainant was subjected to adverse treatment starting on September 3, 2016, when he was
charged AWOL, which less than two months after S1 became aware of Complainant’s EEO
activity. We find that this close temporal proximity establishes a nexus between Complainant’s
protected EEO activity and the subsequent Agency actions.

We find that the management officials proffered legitimate, nondiscriminatory reasons for their
actions for claims 4-6, and 9-13, as discussed above. For example, S1 stated that managers are
required to perform two driver observations each day, that Carrier Technicians are required to
work a circuit, that Complainant did not have three weeks of annual leave available, and that he
did not submit the required court summons with his leave request.

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. We find
that Complainant established pretext for discrimination for claim 10, but that he has not shown
that the proffered reasons were pretext for discrimination for his other claims.

For claim 10, Complainant stated that he should have been charged LWOP, not AWOL, for any
insufficient leave, and he provided a copy of a union settlement agreement showing that the
Agency agreed to allow employees with insufficient leave balances the option to either take
LWOP, or to cancel part of their leave and report to work. ROI at 258.
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In response to this claim, S1 stated that Complainant’s leave was approved prior to her
assignment to the Loch Raven location, and that she did not learn that Complainant had
insufficient leave until his third week of leave. S1 stated that Complainant was not given LWOP
because it needs to be approved through “the MSCO.” S1 stated that she then notified M1, who
in turn informed Complainant that he would be charged AWOL if he did not report to work. S1
added that the decision was made by M1. ROI at 229-300. However, M1 stated that she was not
involved in this decision because she was on sick leave. ROI at 335.

We find that S1’s statements are unworthy of credence because they are inconsistent with M1’s
statement and are not supported by the prior settlement agreement. M1 denied making the
decision, and the settlement agreement shows that approval for LWOP is not a requirement for
an employee who has approved leave but an insufficient leave balance. As such, we find that
Complainant established that S1’s reason was pretext for discrimination, and that he was
retaliated against when he was charged eight (8) hours of AWOL on September 3, 2016.
Therefore, we will reverse the Agency’s finding for claim 10, and remand the matter for further
action, in accordance with the Order below.

Regarding claim 12, we note that the Agency’s policy on court leave provides the options for
leave for court-related service, which notes that if a summons is not specific or clear, the
installation head should contact appropriate authorities. ROI at 411. We find that Complainant
did not prove that he was improperly denied his request for LWOP because he stated that he did
not provide a summons with his leave request because he did not have one.

For claim 13, we note that S1 stated that she forgot about Complainant’s request not to work on
October 3, 2016. However, a mistake, without more, does not establish discriminatory animus.
See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F.
v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). Regarding the
remaining claims, Complainant made bare assertions that management officials discriminated
against him based on his age and race and in reprisal for his EEO activity. These bare assertions
are insufficient to prove pretext, or that managers’ actions were discriminatory. Accordingly, we
will affirm the Agency’s finding that Complainant did not establish that the Agency
discriminated against him based on his age or race, or in reprisal for his EEO activity, for claims
4-6, 9, 11-13.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant's employment. See Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of
harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
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 his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
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liability to the employer. See Humphrey v. U. S. Postal Serv., EEOC Appeal No. 01965238 (Oct.
16, 1998).

In this case, we find that Complainant belongs to statutorily protected classes due to his age,
race, and participation in the EEO process and that he was subjected to unwelcome verbal
conduct. However, we find that Complainant has not shown that the unwelcome conduct was
based on any of his protected categories. Rather, we find that the complained of conduct did not
occur as Complainant described, or it was related to the management of Complainant’s
assignments, performance, and conduct. For example, S1 provided Complainant’s cell phone
number to a coworker who needed to contact Complainant to provide him with assistance.
Additionally, S1 stated that she informed all employees that they had a responsibility to follow
instructions, and that failure to do so was a “fireable” offense. ROI at 290, 292.

To the extent that Complainant alleges a hostile work environment because he was spoken to in a
“loud, threatening manner,” we note that Title VII is not a civility code, and it forbids “only
behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale
v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In looking at the totality of the
evidence, we find that Complainant has not shown that he was harassed based on his age or race,
or in reprisal for his EEO activity. Accordingly, we will affirm the Agency’s finding that
Complainant was not subjected to a hostile work environment based on his age or race, or in
reprisal for his protected EEO activity.

CONCLUSION

We find that: (1) Complainant established that he was retaliated against when he was charged
with eight (8) hours of AWOL on September 3, 2016; (2) Complainant he did not establish that
the Agency subjected him to disparate treatment based on his age or race, or in reprisal for his
EEO activity, for claims 2-6, 9, 11-13; and (3) Complainant did not establish that the Agency
harassed him based on his age, or race, or in reprisal for his EEO activity. Therefore, based on a
thorough review of the record and the contentions on appeal, including those not specifically
addressed herein, we AFFIRM in part and REVERSE in part the Agency’s final decision, and
REMAND the matter for the Agency to take further action in accordance with the Order below.

ORDER (C0618)
The Agency is ORDERED to take the following remedial action:
I. Within thirty calendar (30) days from the date this decision is issued, the Agency
shall remove the AWOL charge for September 3, 2016, and replace it with 7.59
hours of annual leave and 0.41 of LWOP.

II. Within ninety calendar (90) days from the date this decision is issued, the Agency
shall conduct a supplemental investigation with respect to Complainant's claim of
compensatory damages, attorney’s fees, and costs. The Agency shall allow
Complainant to present evidence in support of his compensatory damages claim.
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See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant
shall cooperate with the Agency in this regard. The Agency shall issue a final
decision addressing the issues of compensatory damages, and costs no later than
thirty (30) days after the completion of the investigation.

III. Within ninety calendar (90) days from the date this decision is issued, the Agency
shall provide eight (8) hours of in-person or interactive EEO training for S1. The
training shall emphasize the Agency’s duty not to retaliate against employees who
engage in the EEO process to ensure that similar violations do not occur.

IV. Within sixty (60) calendar days from the date this decision is issued, the Agency
shall consider taking appropriate disciplinary action against S1. 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 S1 has left the Agency's employ, the Agency
shall furnish documentation of their departure date(s).

V. Within thirty (30) calendar days from the date this decision is issued, the Agency
shall post a notice in accordance with the paragraph below.

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).

POSTING ORDER (G0617)

The Agency is ordered to post at its Loch Raven Branch 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.
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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). 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.
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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 (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.
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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

September 26, 2019
Date