[Redacted], Bryce B., 1 Complainant,v.William J. Burns, Director, Central Intelligence Agency, Agency.

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2021002721 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryce B.,1 Complainant, v. William J. Burns, Director, Central Intelligence Agency, Agency. Appeal No. 2021002721 Agency No. 20-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 10, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of the alleged events, Complainant was a student enrolled in an Agency training course from October 18, 2019 to December 13, 2019. Complainant identified his disabilities as Post-Traumatic Stress Disorder (PTSD) and a learning disability. When asked about his PTSD, Complainant stated that he was diagnosed in 2018 by an Agency Psychiatrist, the Agency’s Office of Medical Services’ (OMS) Clinical Psychologists, and his personal psychologist, E1. Complainant stated that he was also diagnosed with a learning disability by E1 in 2018. On March 12, 2020, Complainant filed a formal complaint of discrimination against the Agency, alleging discrimination and harassment based on disability when: 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. 2021002721 2 Claim 1: a. On October 18, 2019, S2, Course Director, disclosed Complainant’s disability to S1, Complainant’s Instructor, without Complainant’s permission; b. On October 31, 2019, S1 exhibited violent behaviors in a one-on-one meeting with Complainant by waving his fist, using offensive language, and making ridiculing comments; c. On November 1, 2019, in a one-on-one meeting, S1 subjected Complainant to offensive name-calling, teasing, and mockery; d. On November 6, 2019, S2 and S1 chastised Complainant calling him “slow” and “unable to learn,” S2 intimidated Complainant by stating that “you just need to be hit upside the head every once in a while” and then proceeded to call Complainant “dumb” and “insubordinate” for presenting his disabilities as a challenge; e. On November 7, 2019, S1 continued to ridicule Complainant, making derogatory comments such as calling Complainant “slow” and “dimwitted” all while physically intimidating Complainant by standing over him, invading Complainant’s personal space and making insulting faces; f. On November 8th, S1 continued with the verbal harassment calling Complainant a “feigner”; g. On November 12, 2019, during a feedback session, A1, another instructor, referenced a conversation he had with S1 where they discussed Complainant’s disabilities; h. On November 13, 2019, S2 struck, C1, a classmate on the head while making direct eye contact with Complainant; i. On November 14, 2019, S2 placed his hand on the inside of Complainant’s leg while telling him the course exercise was over; j. On November 15, 2019, during a mid-cycle review S2 forced Complainant to sign an inaccurate evaluation sheet and verbally assaulted him, threatening to fail him out of the course; k. On November 22, 2019, S1 forced Complainant to stand in his office as part of his daily feedback session, and proceeded to verbally harass him and intimidate him by throwing things around in his office; and l. On December 11, 2019, S1 accused Complainant of being “delusional and hallucinating.” Claim 2: From October 18, 2019 to December 13, 2019, Complainant maintains that S2 and S1 failed to provide him with his requested reasonable accommodation. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge or a final decision. After the Agency did not receive an election response from Complainant, it issued a final decision. The instant appeal followed. 2021002721 3 Claim 1(a): Complainant accused S2 of disclosing his disability to S1 during a meeting in S2’s office. According to Complainant, S2 did not have his permission to disclose this information. S2, Complainant stated, told S1 to ensure that Complainant had the proper accommodation, and the training and tools necessary to overcome his disabilities. S1, according to Complainant, promptly agreed without any hesitation. Complainant maintained, however, that no accommodation ever was provided over the duration of the course. “Despite some minor embarrassment from the hasty disclosure,” Complainant maintained that he went over his disabilities again with S1 in depth during a later meeting. S2 stated that “[s]tudents are required to answer a questionnaire prior to attending,” and are explicitly asked whether there are “any physical/medical limitations which could impact” their participation in the course. S2 maintained that this is “the primary notice for a student candidate to disclose any issues.” The next point of contact would be the instructor and the Course Director. According to S2, Complainant never raised any issues on the questionnaire or with him. S2 asserted that he “did not know Complainant alleges he is disabled,” and that “Complainant did not disclose any issues to me that translated to a disability either in writing or verbally.” S1 stated that, “I was never formally or informally made aware that Complainant had any physical or mental disability. The first time I heard of this disability was from the interviewer during the informal investigation of his EEO complaint in March 2020, months after the conclusion of the course.” Claim 1(b): Complainant maintained that throughout the course, he was subjected to unwelcomed conduct, including the invasion of his personal space to within inches of his face, spitting, humiliating and demeaning remarks, yelling and insults, violent waving and banging of fists around the office, being ordered to stand up despite exhaustion, and other physically intimidating actions such as backing him into corners and throwing things around him. According to Complainant, prior to October 31, 2019, S1 was unusually harsh and overbearing as an instructor but he did not harass him because of his disabilities. On October 31, however, Complainant maintains that S1 became violent inside his office during a meeting. He stood up, made fists, and waived them around in the air above him out of frustration while using offensive language and ridiculing comments, questioning his own ability to get through to Complainant or Complainant’s ability to ever learn. Complainant also claims that S1 threw markers around the room. Complainant stated that to de- escalate the situation, he reemphasized how concussions from his prior military service had made him a slower learner. Complainant maintained that S1 continued harassing him for being “slow, dimwitted and unable to learn.” 2021002721 4 S1 stated that daily one-on-one meetings took place in the instructors’ offices. S1 maintained that because of time constraints instructors could only discuss the student’s future exercise plans and their performance on the previous day’s exercise, areas where the student could improve, but they did not have time to address the student’s successes. S1 noted that some students took issue with the limited positive feedback. The meeting on October 31, 2019, he stated, was focused on Complainant’s performance during an exercise conducted on October 30, 2019. S1 also denied any violent behavior during the October 31, 2019, meeting. He stated that he told Complainant about the several areas that he needed to focus on for improvement. S1 stated that, “I did not wave my fist at him, ridicule him, or direct any profanity at him during this meeting.” S1 admitted talking with his hands but maintained that he would never make his hands into a fist and wave them at or near a student. S1 acknowledged that he sometimes used profanity in conversations, but that when he met a student, he asked if they are offended by the occasional use of profanity. If they indicated that they were he “[r]edouble[d] [his] efforts to professionalize [his] speech around them.” According to S1, Complainant, during their initial meeting, indicated that he was not offended by profanity, routinely used profanity himself during their meetings, and never made him aware of any concerns. Claim 1(c) On November 1, 2019, Complainant stated that S1 harassed him again by calling him “dumb, slow to learn, and unintelligible.” Complainant maintained that the harassment was “offensive, frightening, degrading, humiliating and distressing,” S1, he stated, would tease him by calling him “zig-zag” or “zag,” because he felt Complainant did the opposite of what he should be doing, i.e., he would “zig” when he should “zag.” Complainant accused S1 of being a bully. S1 denied subjecting Complainant to any offensive name-calling. He stated that “I did not tease or mock Complainant during this or any meeting.” The purpose of the meeting, he maintained, would have been to focus on areas for Complainant to improve. 1(d): On November 6, 2019, Complainant maintained that S2 and S1 harassed him again for being too slow and unable to learn. Complainant claims that he “deescalated” the situation by explaining to S2 about his disabilities and promising to work “above-and-beyond” to ensure his successful completion of the course. Subsequently, however, when he explained to S2 that, on three successive nights, he worked beyond 3 am, Complainant stated that S2 replied, “dismissively,” that he “[j]ust needed to be hit upside the head every once in a while.” According to Complainant, S2 called him “dumb” and “insubordinate” for presenting his disabilities as a challenge that he needed to overcome to be successful. S2 denied calling Complainant “slow,” “unable to learn,” and “dumb” or saying that Complainant “need[s] to be hit upside the head every once in a while.” He also stated that he did not think he did anything to intimidate Complainant. 2021002721 5 Regarding the allegation that he called Complainant “insubordinate,” S2 stated that Complainant was notified that he nearly violated the integrity standards of the course, but that he and S1 decided not to expel him. During a meeting with Complainant to discuss the matter, Complainant, according to S2, was argumentative and refused to accept any accountability, which S2 felt showed a lack of understanding of his actions. Complainant, S2 stated, was asked to leave his office, but refused several requests. At this point, S2 stated that he told Complainant he was close to insubordination and told him to leave until they got back to him. S1 also denied calling Complainant “slow” or “unable to learn.” If S2 used the word “slow” it was not in reference to any alleged mental disability, but rather the actual physical time it took for Complainant to complete a task. S1 denied intimidating Complainant during any one-on-one session and stated that he “also never heard [S2] physically threaten Complainant or any other student in the class in any other way.” S1 did not witness S2 call Complainant “dumb” and could not remember if S2 called Complainant insubordinate on that day. During a course feedback session on November 15, 2019, S2 did indicate that Complainant was acting in an insubordinate manner. During the meeting, S1 noted that Complainant disagreed with S2’s assessment of his performance, appeared to become angry, then emotional, and at one point began to cry. Complainant, he stated, began to attack and criticize the structure of the class, talked over S2, and repeatedly interrupted him. S2, according to S1, stated that he was the course director and if Complainant did this to a manager in the field, it would be an act of insubordination. S1 stated that S2 remained calm, composed, and never raised his voice. 1(e): On November 7, 2019, Complainant stated that S1 continued to harass him and that he was unable to learn because of the “intimidation, ridicule, insult, derogatory remarks, and other demeaning comments.” Complainant claimed that although he emphasized his disabilities and the psychological therapy he was receiving for PTSD and his mental impairments, S1 called him “slow,” and “dimwitted.” He also claimed that S1 become more physically threatening, i.e., standing over him, invading his personal space, deeply staring at him without an expression or by making faces to mock and ridicule him, and S1 spoke so aggressively at times that saliva flew into his face. S1, he stated, also threw markers and pens forcefully around the room, bouncing them off the desk where Complainant was sitting and the walls behind him. S1 stated that he did not call Complainant “slow” or “dimwitted,” he also denied making “any other derogatory comment about his mental or physical capabilities,” or making any insulting faces to Complainant. Regarding the allegation that he physically intimidated Complainant by invading his personal space, S1 stated, “I did not physically intimidate Complainant while standing over him” and “I did not invade Complainant’s personal space.” 1(f): 2021002721 6 On November 8, 2019, Complainant stated that S1 harassed him again for being “slow,” “forgetful,” and “unable to learn.” According to Complainant, the harassment was so harsh and aggressive that he broke down and cried, which resulted in S1 becoming more aggressive. S1, according to Complainant, called him a “feigner,” i.e., one who feigns or pretends, and other derogatory names related to his PTSD and learning disabilities. S1 denied calling Complainant a “feigner,” noting that he had to look the word up when he was interviewed by the investigator. 1(g): On November 12, 2019, Complainant stated that he was in a feedback session with another instructor, A1. During that discussion, Complainant stated that A1 told him about a conversation with S1 where they discussed Complainant’s disabilities, i.e., his mental impairments and inability to learn. A1, Complainant stated, was harsh and dismissive and seemed awkwardly nervous, while continuing the hostile environment created by S1 and S2. S1 stated that, “I never had a feedback session with [A1].” He did acknowledge that instructors did have daily meetings to provide the Course Director and fellow instructors a summary of their student’s previous exercise, and that this was the only time they discussed their students in an open forum. Each instructor had approximately five minutes to summarize their student’s performance for their fellow instructors. S1 emphasized that “[he was unaware Complainant had any disability, so [he] would not have been able to share this information with anyone.” A1 stated that he “had numerous conversations with [S1] regarding Complainant over the period of 11 - 15 November 2019,” and that “[m]y conversations with [S1] about Complainant were related to where Complainant was standing in the course, and what he needed to improve on.” A1 further stated that he “did not address Complainant’s disabilities with [S1].” He also denied making Complainant aware of a conversation between himself and S1 and being aware of Complainant’s disability. He further denied being aware that Complainant had a disability and denied holding a feedback session with Complainant on November 12, 2019. 1(h): According to Complainant, on November 13, 2019, S2 struck C1, one of his classmates, on the head while making direct eye contact with Complainant. Complainant maintained that S2 noticed his disapproval, when he winced in opposition to the “assault.” Complainant described S2’s action as harassment towards him because of his disabilities. S2, according to Complainant, tried to make the point that “we all needed a blow to the head every once in a while.” S2 stated that he did not strike C1 on the head. C1, he maintained, had made a significant mistake on an exercise the previous day. S2 described his conduct as “a gentle flip of the back of C1’s hair,” as if he was asking him, “what were you thinking?” S2 denied there being anything aggressive or abusive in his behavior. 2021002721 7 C1 stated that S2 was reacting to a mistake that he made. S2, he stated, “sighed with playful disbelief at the mistake, in a way that said, ‘what were you thinking.’” According to C1, he “smiled at the perceived playful nature and took my seat.” C1 stated, “I would not use the word ‘strike.” I would say that [S2] tapped me on the head.” 1(i): Complainant alleged that, on November 14, 2019, S2 placed his hand on the inside of Complainant’s leg while telling him the course exercise was over. According to Complainant, S2 placed his hand on the inside of his upper leg near his crotch as he informed me the course was over. Complainant felt that the physical contact was unwelcomed and inappropriate. S2 stated that, “I did not touch Complainant on the inside of his leg.” 1(j): Complainant stated that, on November 15, 2019, during mid-cycle review, S2 forced him to sign an inaccurate evaluation sheet and verbally assaulted him, by threatening to fail him out of the course. According to Complainant, “[t]he mid-cycle review was a summary interpretation and synthesis of individual course exercises assessments.” Among other things, Complainant stated that S2 indicated that signing the evaluation sheet was a condition of continued employment in the course and that he wanted to fail Complainant. S2 stated that, the mid-course evaluation “was not optional, nor a negotiation,” and was conducted for all students at that stage of the course. This was the instructor’s evaluation of a student’s performance to date. Complainant, he stated, was performing below standard and not meeting expectations in any of the evaluated areas. Although S1 wrote the evaluation, S2 indicated that he thought it was a true and accurate assessment of Complainant’s performance. He also noted that a student’s signature on the evaluation was not an acceptance of the evaluation but was simply an acknowledgement of receipt. Complainant’s refusal to sign would have made no difference in the evaluation or ultimate certification decision. S2 maintained that, when asked whether he had any concerns regarding his mid-cycle review, Complainant “did not dispute any specific issues in the evaluation. He appeared at the time to completely realize he was not meeting [the] standards.” S2 denied threatening to fail Complainant. According to S2, instructors do not discuss certification until the last day of the course - even amongst themselves. He maintained that they worked with everybody until the last day of the course to improve their performance. Ultimately, he stated, Complainant was not certified. 1(k): Complainant alleged that, on November 22, 2019, S1 forced him to stand in his office as part of his daily feedback session and proceeded to verbally harass and intimidate him by throwing pens, markers, and erasers around the office. 2021002721 8 According to Complainant, despite his poor physical state, i.e., exhaustion and having had leg surgery performed earlier in the year, S1 “aggressively” ordered him to stand to assert control and inflict pain on him during the one-on-one office session, despite his requests to remain seated. S1 confirmed that he and Complainant had a one-on-one feedback session on November 22, 2019, but stated that, “I never forced Complainant to stand or sit during the one-on-one feedback sessions.” S1 also denied verbally harassing Complainant, intimidating Complainant, or throwing things in the office. 1(l): On December 11, 2019, Complainant accused S1 of calling him “delusional” and of “hallucinating.” Complainant stated that he was ridiculed and made to feel embarrassed. S1 denied calling Complainant delusional or accusing him of hallucinating. He also denied holding a feedback session with on December 11, 2019. Claim 2: Complainant maintained that he was discriminated against based on disability when, from October 18, 2019 to December 13, 2019, S2 and S1 failed to provide him with his requested reasonable accommodations. According to Complainant, he requested a reasonable accommodation before the course started and throughout the course. He also maintained that S2 acknowledged his disabilities and stated that he would accommodate them. S2, he maintained, also directed S1 to accommodate him and to ensure that his disabilities were addressed. S2 stated, however, that “Complainant never requested reasonable accommodation nor discussed the issue with me.” Moreover, S1 stated that, “Complainant never requested an accommodation from me, nor was I aware of him asking any other instructor or member of management.” ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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”). Harassment: Claims 1(b) - 1(l): 2021002721 9 To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Assuming, arguendo, that Complainant established that he is a qualified individual with a disability, we find no persuasive evidence that he was subjected to unwelcome verbal or physical conduct involving his disability or that the matters complained of in claims 1(b) - 1(l) were based on his disability. Complainant argued that there was a pervasive pattern of severe verbal harassment and hostile conduct based upon his disabilities. Like the Agency, however, we find no support for this assertion in the record. Management officials all denied being aware that Complainant was disabled, and Complainant provided no evidence that rebutted their contentions.2 We find that Complainant only made bare assertions and has not offered any evidence showing that the managers were not believable. Unfortunately, Complainant did not request a hearing before an Administrative Judge, and, as a result we do not have the benefit of an AJ’s credibility determinations of the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sep. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made): Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, Complainant has not established that he subjected to harassment based on his disability as he alleged. 2 In September 2020, when asked by the EEO Investigator to provide documentation of his medical conditions, Complainant responded, “I will hold off on providing med docs for now.” Despite multiple requests by the EEO Investigator, Complainant did not provide any evidence or documentation related to his medical conditions. The Agency’s OMS maintained that, “OMS does not have any supporting documents to verify diagnosis of PTSD or a learning disability for subject.” 2021002721 10 Confidentiality of Medical Information Claim 1(a): Under the Rehabilitation Act, information “regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 29 C.F.R. § 1630.14(c)(1); see 42 U.S.C. § 12112(d)(4)(C). This requirement applies to all medical information, including information that an individual voluntarily discloses. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), No. 915.002, at 4 (July 26, 2000). Employers may share confidential medical information only in limited circumstances: (i) supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations; (ii) first aid and safety personnel may be told if the disability might require emergency treatment; and (iii) government officials investigating compliance with the ADA and Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1). According to Complainant, S2 disclosed information about his disability to S1 during a joint meeting in S2’s office. S2, Complainant stated, instructed S1 to ensure Complainant had the proper accommodation, and the training and tools necessary to overcome his disabilities. S1, according to Complainant, promptly agreed without any hesitation. According to Complainant, S2 did not have his permission to disclose this information. Assuming, arguendo, that this matter took place as alleged by Complainant, we do not find that a violation of our regulations occurred. As noted above, supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations. The fact that Complainant did not expressly give S2 permission to speak to S1 is not a factor in determining whether a violation took place here because S1, as Complainant’s primary instructor, would have the need for such information in order to presumably accommodate Complainant. Reasonable Accommodation: Claim 2: Under the Commission’s regulations, a federal agency may not discriminate against a qualified individual on the basis of disability and is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability unless the Agency can show that reasonable accommodation would cause an undue hardship. See 29 C.F.R. § 1630.2(o), (p). To establish that he was denied a reasonable accommodation, Complainant must show that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a “qualified” individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide him with a reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC Notice No. 915.002 (Oct. 17, 2002) (Enforcement Guidance). An individual with a disability is ““qualified” if he or she satisfies the requisite skill, experience, education, and other job-related requirements of the employment position that the individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). 2021002721 11 Again assuming, for purposes of this decision only, that Complainant is a qualified individual with a disability, we do not find that he was denied a reasonable accommodation because there is no persuasive evidence that he ever requested an accommodation. Complainant stated that he requested a reasonable accommodation before the course started and throughout the course, but both S1 and S2 stated that Complainant did not disclose any disabilities or medical conditions to them and that he never requested a reasonable accommodation or otherwise discussed the issue with them. The Chief of Operations also reviewed all pre-course documents submitted by students in Complainant’s class and confirmed that no one indicated a disability or requested any reasonable accommodations. Because Complainant presented no persuasive evidence that he ever requested a reasonable accommodation, and the need for an accommodation was not obvious here, we find that Complainant did not establish that the Agency failed to provide a reasonable accommodation. CONCLUSION After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2021002721 12 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2021002721 13 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 28, 2022 Date