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

Equal Employment Opportunity Commission

Sep 25, 2019

0120181487 (E.E.O.C. Sep. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mahalia P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120181487 Hearing No. 430-2015-00332X Agency No. 4K-230-0024-15 DECISION 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 27, 2018 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. 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 VACATES and REMANDS the Agency’s final order. BACKGROUND On September 6, 2014, the Agency hired Complainant as a Rural Carrier Associate (RCA), B-05, at the Genito Post Office in Midlothian, Virginia. The duties of the rural carrier associate included casing and delivering mail on assigned routes up to six days per week between eight and 12 hours per day; collecting mail from blue mail boxes when scheduled to do so; sitting, standing, and twisting for long periods of time, and lifting parcels weighing up to 75 pounds. Investigative Report (IR) 89, 126; Hearing Transcript (HT) 102. 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. 0120181487 2 According to a PS-Form 50 (Notification of Personnel Action), Complainant resigned effective November 5, 2014 due to her inability to perform the duties of the position. IR 135. Complainant testified that two weeks before her last day of work, she started experiencing pain in her wrists and hands, particularly her right wrist. She stated that she notified a Customer Services Supervisor (CSS) and the Acting Floor Supervisor (204B) that she was in a lot of pain when she cased and delivered mail. On the morning of October 27, 2014, Complainant called in sick and had gone to a medical facility who had provided her with a medical note. HT 20-21. There is no evidence indicating that the medical note placed her on any restrictions. She testified that the following day, she came into work and gave the note to the 204B, but that the 204B had asked her to stay and do the best she could because there was no one else available to cover for her. HT 22- 25. She testified that she worked for approximately one more hour but again asked the 204B if she could go home because she was in so much pain that she could no longer case mail. HT 27, 29. She testified that the 204B asked her to come with her to the office of the Customer Services Manager (CSM). While in the office, Complainant told the CSM that she had carpal tunnel syndrome and could not continue with casing and delivery. Complainant asked the CSM if he knew of other positions at the post office. Complainant testified that the CSM answered “no,” and told her that she would have to resign. HT 30-32. Complainant further testified that at this point she felt as if she had no other choice but to resign. HT 35-37. In box eight of a PS Form 2574, a form entitled, “Resignation/Transfer from the Postal Service,” Complainant check-marked “resignation.” The form states that a resignation is the formal act of giving up or quitting your employment with the [Agency]. The form also states that resignations are accepted and binding once submitted. In that same box, Complainant gave as her reason for resigning the following explanation: “Unable to perform duties due to health reasons - ankle injury from a car accident in 2000 on right side and carpal tunnel in right wrist.” Complainant and the CSM both signed the form and dated it October 28, 2014. IR 106. A noncareer separation request form documenting Complainant’s resignation identified the action as a voluntary separation. IR 88, 108. The CSM testified that on the morning of October 28, 2014, Complainant informed the 204B that she was unable to continue performing her duties of casing and delivering mail due to the severe pain she was experiencing in her right hand. Complainant had taken off work the previous day to visit a doctor. When she arrived in the office on October 28, 2014, she was wearing a compression sleeve and had presented her, the 204B, with a doctor’s note indicating that she had carpel tunnel syndrome. IR 124. The 204B, in turn, informed the CSM that Complainant wanted to quit, whereupon he advised Complainant to think about it and try to finish the day. Thirty minutes later, the 204B returned and told the CSM that Complainant had decided to quit. The CSM asked the 204B to bring Complainant to his office. The CSM testified that when Complainant arrived, he advised her that she did not have to resign right away but could take a few days to think about it. He then presented her with the Form 2574. The CSM and the 204B further testified that Complainant was not forced to resign, that she did not resign in protest, and that she did not make them aware of any physical limitations that she had or a need for an accommodation prior to October 28, 2014. IR 88-92, 125-29; HT 98-103, 113, 116, 132-38, 145. 0120181487 3 Complainant averred that she had asked for accommodations, but not in writing, on October 28, 2014. She stated that management had told her that there was nothing else she could do, that no interactive process was entered into, and that based upon her intolerable pain, she was forced to “constructively resign.” IR 72-74. The CSM testified that he was unaware of any open vacant positions in which she could have performed duties. HT 138. He also testified that Complainant had asked him if she could do collections, but that he told her that collections was not a specific job for which a description existed, collections was an auxiliary function that was assigned based on specific need and availability. HT 148-49. The CSM further testified that collections and route deliveries had similar physical requirements. HT 155-56. The 204B added that collections duties were not a bid assignment and characterized collections as an auxiliary role that was rotated among all of the rural carrier associates. HT 113. In a letter to the Postmaster dated October 29, 2014, the day after she submitted PS Form 2574 documenting her resignation, Complainant stated that she was retracting her resignation, and that when she submitted that resignation letter, she was under the impression that resigning was her only option. She stated that her condition was treatable with surgery, and that after having time to reflect, she wished to apply for a reasonable accommodation, and that it was not her intention to resign from the Agency. IR 72, 113; HT 41-42. The Postmaster responded by letter dated November 5, 2014. In that letter the Postmaster stated: “You checked the first block. Resignation. Resignations are accepted and binding once submitted. Therefore, you are no longer an employee of the [Agency] and your request for reasonable accommodation cannot be accepted.” IR 100-01, 114. In an email to the Postmaster dated November 5, 2014, a Customer Services Supervisor who was Complainant’s immediate supervisor (S1) stated that Complainant never once mentioned anything in regard to needing a reasonable accommodation. S1 further stated that he did not learn of any kind of injury that Complainant may have had until after she had resigned, and the other management officials had mentioned that it was not work-related. IR 121. In a supervisor’s report of occupational disease dated November 20, 2014, S1 reported that Complainant resigned on October 28, 2014 without ever mentioning her medical condition, and no information was ever provided to the immediate supervisor at the Genito Post Office. IR 117. On November 17, 2014, Complainant submitted a claim for workers’ compensation claiming carpal tunnel syndrome as the medical condition. IR 116. In support of her claim, she submitted a handwritten note titled, “MEDICAL REPORT,” dated November 15, 2014, and addressed “to whom it may concern.” The report stated that Complainant had been treated on October 27 and November 12, 2014 at a health care provider organization named “Patient First.” The report indicated that she had been doing repetitive motion with both upper extremities since September 27, 2014, and that she had been experiencing severe pain in her right hand that had been worsening. The note identified a diagnoses of carpal tunnel syndrome for which her right hand was placed in a Velcro wrist splint to be worn at night. The note also stated that carpal tunnel syndrome could be caused or aggravated by repetitive movements of the upper extremities. 0120181487 4 The note was signed, but the individual who signed it did not indicate whether or not she was a medical professional. IR 136. Complainant received a notice of decision on her claim from the Office of Workers’ Compensation Programs (OWCP) dated January 5, 2015. OWCP stated that Complainant’s claim for compensation was denied because the evidence was not sufficient to establish that she had sustained an injury as defined by the Federal Employees Compensation Act. OWCP stated that the handwritten note from the Patient First health care provider was not signed by a doctor. OWCP also stated that on December 2, 2014, Complainant was advised of deficiencies in her claim and asked to submit additional medical evidence, including a statement of diagnosis, results of all diagnostic tests, and a physician’s opinion as to how work activities in her federal employment had caused, contributed to, or aggravated her medical condition. The letter further stated that Complainant did not submit any additional medical evidence despite being given 30 days to do so. IR 120. On February 23, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability (carpal tunnel syndrome) when on October 28, 2014, she was forced to resign, and management would not consider her subsequent request for reasonable accommodation. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter held a hearing on December 13, 2017 and issued a decision on February 12, 2018. In the decision, the AJ determined that Complainant established that she is an individual with a disability based on her carpal tunnel syndrome condition. The AJ noted, however, that Complainant in essence admitted she was no longer able to perform the essential functions of her job as Rural Mail Carrier, because severe pain in her hands and wrists prevented her from casing and delivering mail. Complainant approached management and asked if there were any other positions she could do other than casing mail. The AJ determined that this was sufficient to alert management that she was seeking reasonable accommodation. The AJ found that management failed to effectively engage in the interactive process by not contacting a reasonable accommodation coordinator or Human Resources to determine whether there were any vacant positions Complainant could fill. However, the AJ found that Complainant had not met her burden of establishing that there were vacancies during the relevant time into which she could have been reassigned. Furthermore, the AJ found that even if the Agency had allowed Complainant to retract her resignation, Complainant still had not offered any evidence that there was a vacant position into which she could have been reassigned. As a result, the AJ found that Complainant had not established that she was denied reasonable accommodation in violation of the Rehabilitation Act. 0120181487 5 Finally, with regard to Complainant’s constructive discharge claim, the AJ found that Complainant failed to show that discrimination created the intolerable work conditions that forced her to resign. Accordingly, the AJ concluded that Complainant’s constructive discharge claim failed. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency engaged in trickery, deceit, disingenuousness, and destruction of evidence based in direct opposition to the evidence and contradicted testimony. Complainant contends that the Agency violated its own policies and the law and to allow the Agency’s actions to stand would set a chilling effect making this the norm for all federal agencies. Complainant claims that the AJ ignored obvious facts and his ultimate determination was erroneous. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Denial of Reasonable Accommodation On appeal, Complainant maintains that the Agency failed to offer her a reasonable accommodation on October 28, 2014. The AJ found that Complainant’s carpal tunnel syndrome constituted a disability within the meaning of the Rehabilitation Act and that the 204B and the CSM were aware of Complainant’s condition. In order to establish that she was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 0120181487 6 An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g); Marcellus M. v. U.S. Postal Serv., EEOC Appeal No. 0120182213 (Aug. 16, 2019). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; and the operation of a major bodily function. 29 C.F.R. § 1630.2(i). An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to the ability of most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). Such limitations must be shown to be of permanent or long-term duration. See Rose v. U.S. Postal Serv., EEOC Appeal No. 0120061879 (Nov. 30, 2007) (AJ found that employee failed to establish that she was an individual with a disability, noting that employee did not show that limitations resulting from her medical condition were of permanent or long-term duration). We accept the AJ’s finding that Complainant was an individual with a disability. See Johnson v. U.S. Postal Serv., EEOC Appeal No. 01940381 (July 28, 1994) citing Gaidanowicz v. U.S. Postal Service, EEOC Request No. 05901091 (Jan. 3, 1991) (Commission previously ruled that carpal tunnel syndrome is a disability). We must now ascertain whether Complainant was a qualified individual with a disability. A qualified individual with a disability is an “individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position. Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120141294 (June 16, 2017) citing 29 C.F.R. § 1630.2(m). When asked whether she could perform the essential functions of her Rural Carrier Associate position, she answered that she could, and she could return to full duty after corrective surgery. IR 72. However, on the day of her resignation, Complainant was unable to perform the mail casing and delivery functions that were essential to the Rural Carrier Associate position. When Complainant asked the CSM if she could work in collections, the CSM responded that collections was not a stand-alone job function but rather an auxiliary function determined by needs and availability of staff. The CSM also stated that work in collections had the same physical requirements as mail casing and delivery. The record, however, is silent as to whether there were modifications to the position that could have been enacted to enable Complainant to perform the essential functions of the position or other duties that Complainant that could have performed. The next question to address is whether Complainant was a qualified individual with a disability with respect to other positions, and as such, was eligible for reassignment to a vacant, funded position for which she could perform the essential functions. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that there are no effective accommodations that will enable complainant to perform the essential functions of her current position or all other reasonable accommodations would impose an undue hardship. King W. v. U.S. Postal Serv., EEOC Appeal No. 2019001070 (Mar. 20, 2019); Zachary K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130795 (Nov. 19, 2015). 0120181487 7 The AJ found that, because Complainant could no longer perform the essential functions of her job as a rural carrier associate, casing and delivering mail, she approached the 204B and later the CSM and asked for a reasonable accommodation in the form of a reassignment to another position for which she could perform the essential functions. Significantly, the AJ determined that, rather than engage in the interactive process when it was clear that Complainant was asking for a reassignment, the CSM made Complainant believe that she had no choice but to resign from the Agency. However, the AJ ultimately concluded that Complainant’s reasonable accommodation claim failed because she failed to show that there were vacant positions available to which she could have been reassigned. Complainant stated that management could have given her the reasonable accommodations she had requested, and that she had asked the 204B and the CSM if she could do something else based on the pain she was in, but they had told her that there was nothing else she could have done. She stated that they neither engaged in the interactive process with her nor referred her to the district reasonable accommodation committee. IR 71-74. She maintained that instead of accommodating her, the CSM forced her to resign. HT 31-36. She expressly asked for a reasonable accommodation in her letter to the Postmaster in which she requested to rescind her resignation dated October 29, 2014. IR 113. As the AJ found, the Agency failed to engage in the interactive process following Complainant’s request for accommodation. Commission precedent establishes, however, that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability attaches when the failure to engage in the interactive process results in the agency's failure to provide reasonable accommodation. Broussard v. U.S. Postal Serv., EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den’d, EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, supra. Here, we find that the record is inadequate to determine whether the Agency fulfilled its obligations under the Rehabilitation Act. The investigation should have disclosed more information (if available) about Complainant’s condition, including any restrictions she may have had; what duties or jobs she could have performed within those restrictions; and any potential modifications to her rural carrier associate position that would have enabled her to perform the essential duties of the position. The investigation also should have identified any available positions into which Complainant could have been reassigned, and the investigator should have given Complainant an opportunity to address whether she could have performed the essential functions of the vacant positions with or without reasonable accommodation. As constructed, the record is insufficient for us to determine whether the Agency satisfied its obligation to provide Complainant with a reasonable accommodation. In litigation, an employee seeking reassignment as a reasonable accommodation generally must make a facial showing that there existed a vacant, funded position whose essential functions the employee could perform. 0120181487 8 See, e.g., Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997); see also Hampton v. U.S. Postal Serv., EEOC Appeal No. 01986308 (Aug. 1, 2002) (complainant can establish that vacant, funded positions existed by producing evidence of particular vacancies or by showing that s/he was qualified to perform a job or jobs that existed at the agency and there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the time period). However, we note that during the interactive process, the Agency is in the best position to know which jobs are vacant or will become vacant within a reasonable period of time and is therefore obligated to expeditiously inform Complainant about vacant positions for which she might be eligible in a reassignment. Enforcement Guidance, Question # 28; Bill A. v. Dep't of the Army, EEOC Appeal No. 0120131989 (Oct. 16, 2016) (investigator must obtain relevant information about the availability of vacant, funded positions). During the investigative stage of the federal administrative process, the agency has an obligation to develop an adequate investigative record. 29 C.F.R. § 1614.108. “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” Id. § 1614.108(b). The investigator must conduct a thorough investigation, “identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome.” EEO MD-110, Chap. 6 § V.D. Therefore, the investigator must exhaust those sources of information likely to support the positions of the complainant and the agency. Id. The investigative record in this case is inadequate. Accordingly, we have no choice but to remand this matter for a supplemental investigation as to whether Complainant could be accommodated in her rural carrier associate position through job modification or restructuring; whether any other accommodations were available; whether vacant, funded positions were available for reassignment that Complainant could perform; and any other pertinent information. We note that the Agency's obligation under the Rehabilitation Act to offer a reassignment is not limited to vacancies within a particular department, facility, or geographical area. Bill A. v. Dep't of the Army, supra. The “extent of the agency's search for a vacant position is an issue of undue hardship.” Id. Based on the foregoing, we find that the record was not adequately developed. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether a violation of the discrimination statute occurred. Therefore, the Commission will remand this matter for a supplemental investigation. Constructive Discharge Complainant reiterated that the CSM and the 204B had forced her to resign by making her working conditions intolerable. She characterized her resignation as “constructive.” In essence, Complainant is alleging that because management was unresponsive to her request for reasonable accommodation, including a reassignment to a position more suited to her condition, she felt compelled to resign from her position. A constructive discharge occurs when an employer deliberately renders an employee's working conditions so intolerable that the individual is forced to resign from her position. 0120181487 9 The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). The record on the constructive discharge claim is likewise insufficient to support a finding on the merits. As we are remanding the denial of reasonable accommodation claim for further investigation, we also find it appropriate to remand the constructive discharge claim that allegedly resulted from the failure to accommodate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND Complainant's complaint for further processing in accordance with the Order below. ORDER TO SUPPLEMENT RECORD (B0617) Within one-hundred and twenty (120) calendar days of receipt of this Order, the Agency shall conduct and complete a supplemental investigation consistent with the requirements of 29 C.F.R. § 1614.108(b), in EEO MD-110, Chapter 6 and consistent with this decision. The supplemental investigation shall include, but is not limited to, whether and to what extent the Agency provided Complainant with a reasonable accommodation beginning on or around October 27, 2014. This investigation shall encompass the following elements: whether Complainant’s medical condition could be accommodated; whether any accommodations were available within her medical restrictions on or around October 27, 2014; whether positions were available for reassignment as of October 27, 2014; and any other pertinent information that the investigation reveals. The Agency shall issue to Complainant a copy of the supplemental investigative file and shall notify Complainant in writing of her right to request a hearing before a Commission AJ or the issuance of an Agency decision, unless the matter is otherwise resolved. If Complainant requests an Agency decision without a hearing, the Agency shall issue its decision within sixty (60) days of receipt of Complainant’s request. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. 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." 0120181487 10 The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include evidence that the directed action has been taken. 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. 0120181487 11 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 0120181487 12 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 25, 2019 Date