[Redacted], Darlena H., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022002700 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darlena H.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2022002700 Hearing No. 410-2021-00370X Agency No. 2020-28935-FAA-03 DECISION On April 18, 2022, 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 March 22, 2022 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 the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a FV-0343-G Program Analyst in the Agency’s Southern Regional Office, Aerospace Medical Division, Airman Medical Certification Program in College Park, Georgia. Report of Investigation (ROI) at 241. In 2017, Complainant and a male coworker (Coworker-1) were selected for FV-0343-G Program Analyst positions in the Airman Medical Certification Program from vacancy announcement ASO-AVS-17-B248-53683. 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. 2022002700 2 Agency Motion for Summary Judgment (AMSJ) at Attachments 1, 2. The listed salary range for the position was $52,998 to $82,153 per year, including locality pay of 20.70 percent. Id. The Regional Flight Surgeon requested five percent pay increases for Complainant and Coworker-1 in their new positions. Id. Complainant began working for the Agency on June 1, 2014, as a FV-0318-E Secretary earning a salary of $36,868, including locality pay. ROI at 222. Complainant was promoted to FV-0343- F Program Analyst on or about September 20, 2015, earning a salary including locality pay of $49,770. ROI at 144; AMSJ at Attachment 1. At the time of her selection for the FV-0343-G Program Analyst position, Complainant’s salary excluding locality pay was $43,909, and her salary including locality pay $52,998. ROI at 224. Applying the five percent salary increase, Complainant’s new salary excluding locality pay was $46,104, and her new salary including locality pay was $55,648. ROI at 162, 224; AMSJ at Attachment 1. Complainant’s reporting date was September 18, 2017. AMSJ at Attachment 1. Coworker-1 began working for the Agency on August 26, 2012, as a FV-0344-E Program Assistant, earning a salary of $46,592, including locality pay. ROI at 233. On August 24, 2014, Coworker-1 was promoted to FV-0343-F Management and Program Analyst, earning a salary of $53,877, including locality pay. ROI at 235. On September 20, 2015, Coworker-1 was promoted to FV-0343-G Program Analyst, earning a salary of $58,123, including locality pay. ROI at 236. On January 22, 2017, Coworker-1 was promoted to FV-0343-H Management and Program Analyst, and his salary excluding locality pay was $53,629, and his salary including locality pay was $64,730. ROI at 240. Coworker-1 accepted a change to a lower pay band by accepting the FV-0343-G Program Analyst position. ROI at 241. Applying the five percent salary increase to his salary at the time of his selection, Coworker-1’s new salary excluding locality pay was $56,310, and his new salary including locality pay was $67,966. ROI at 241; AMSJ at Attachment 2. Coworker-1’s reporting date was October 2, 2017. AMSJ at Attachment 2. On August 22, 2018, the Regional Flight Surgeon approved an increase in pay band for Coworker-1 to FV-0343-H Program Analyst, and his salary including locality pay increased to $75,850. AMSJ at Attachment 3; ROI at 244. The effective date of Coworker-1’s promotion was September 2, 2018. ROI at 244. According to the Regional Flight Surgeon, management initiated the increase to the H pay band because Coworker-1’s performance justified an increase. ROI at 215. On July 9, 2019, Complainant emailed the Regional Flight Surgeon, asking what she would need to do to move up to the H pay band. ROI at 181-82. The Regional Flight Surgeon responded the same day that the Management Program Analyst could help Complainant with the pay tools. ROI at 181. The Regional Flight Surgeon stated that the Management Program Analyst handled all of the Regional Flight Surgeon’s administrative functions. ROI at 217. On July 22, 2019, Complainant emailed the Management Program Analyst, asking her to forward to the Regional Flight Surgeon the attached In-Position Increase Decision Tool, in which Complainant requested a salary increase of five percent and an increase to the H pay band, and written justification for the requested increase in pay band and salary. ROI at 184-89. 2022002700 3 Complainant stated that, several months later, the Management Program Analyst informed her verbally that her request for a pay band increase was denied. ROI at 151; AMSJ at Attachment 6. The Regional Flight Surgeon stated that she did not support a pay band increase for Complainant at that time because she was not performing H pay band work. ROI at 217. According to Complainant, on August 27, 2020, she learned that one of her coworkers would be leaving the Airman Medical Certification Program. ROI at 25-26, 76-84, 109. Complainant stated that she knew her coworker’s departure would mean more work and responsibility for the team, prompting her to think about her denied request for a pay band increase. Id. Complainant alleged that, on August 28, 2020, she decided to look up publicly available salary information online and learned that Coworker-1, who started in the Airman Medical Certification Program at the same time as Complainant and held an identical job title and responsibilities, earned $20,000 more than Complainant did and received a pay band increase to the H pay band in FY 2017. Id. Complainant provided printouts of the publicly available salary data, which showed that Coworker-1 earned $79,638 in FY 2019, whereas Complainant earned $59,763. ROI at 76-84. Complainant stated that, prior to looking up the publicly available salary information, she did not know that Coworker-1 earned more than she did or that he had received a pay band increase to the H pay band. ROI at 25-26, 76-84, 109. The Regional Flight Surgeon stated that, while Complainant and Coworker-1 performed similar, but not identical, work and that Coworker-1 performed at a higher level than Complainant. ROI at 214. According to the Regional Flight Surgeon, Coworker-1 worked on more complex cases, more emergency revocations, and more legal cases than Complainant, had assisted with Headquarters initiatives, and had a higher case volume. ROI at 216. Complainant initiated contact with an EEO counselor on September 3, 2020. On November 12, 2020, Complainant filed an EEO complaint alleging that the Agency violated the Equal Pay Act and discriminated against her on the basis of sex (female) when: 1. On August 27, 2020, she became aware that her pay was $20,000 less than that of a male colleague, although they have the same job responsibilities, job title, and tenure with the Agency. 2. Several months after she submitted a pay-band increase justification on July 22, 2019, she was notified that her pay-band increase request was denied. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on March 7, 2022. The AJ determined that Complainant failed to make timely EEO counselor contact for both claims. 2022002700 4 The AJ stated that Complainant and Coworker-1 were only proper comparators until September 2, 2018, when Coworker-1 received a pay band increase to the H pay band. Although Complainant stated she did not reasonably suspect discrimination until she looked up the publicly available salary information on August 27, 2020, the AJ found that Complainant failed to act with due diligence in pursuit of her Equal Pay Act and Title VII pay-based claims. The AJ also found Complainant failed to make timely EEO counselor contact on the denial of the pay band increase because she admitted that the Management Program Analyst notified her that her July 22, 2019, request had been denied several months later. Assuming arguendo that Complainant timely raised her allegations of discrimination, the AJ found that judgment in favor of the Agency was still appropriate. The AJ incorporated the Agency’s Motion for Summary Judgment into the decision and stated that the Agency’s motion clearly identified the issues, established that there were no genuine issues of material fact, outlined the factual background, and provided sound, persuasive analysis that no discrimination occurred. The Agency subsequently issued a final order adopting the AJ’s decision dismissing Complainant’s complaint and finding in the alternative that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that her EEO counselor contact was timely because she initiated contact less than a week after she had a reasonable suspicion of discrimination. Complainant contends that she established a prima facie case of a violation under the EPA and that the Agency could not establish an affirmative defense. Regarding the denied pay band increase, Complainant asserts that, during their first year in Airman Medical Certification Program, she handled significantly more complex cases than Coworker-1. Complainant further states that Coworker-1 only had 11 months’ time in grade at the time of his promotion and was not eligible for a pay band increase, whereas Complainant had nearly four years’ time in grade when she requested a pay band increase. Complainant notes that she received an “exceeds” rating in her most recent performance evaluation, whereas Coworker- 1 had not yet received a performance evaluation when he received a pay band increase. Complainant contends that she had a master’s degree when she requested a pay band increase, whereas Coworker-1 only had a bachelor’s degree and was therefore less qualified. Finally, Complainant cites a draft memorandum created by the Regional Flight Surgeon as proof that the Regional Flight Surgeon thought Complainant was eligible for a pay band increase based on her job performance and qualifications. Complainant contends that the Agency’s asserted nondiscriminatory reason for Coworker-1’s pay band increase, that it was based on his performance, is pretextual because he had not yet received a performance evaluation when he received the pay band increase. Complainant requests that the Commission issue a decision in her favor or remand the matter for a hearing on the merits. 2022002700 5 In response to Complainant’s appeal, the Agency contends that, even if Complainant’s claims were considered timely, she relies on unsupported allegations and assertions, conclusory statements, and speculation to support her claims. The Agency asserts that Complainant can only arguably establish a prima facie case of pay discrimination while she and Coworker-1 were at the same pay band and that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency contends that Coworker-1 had worked for the Agency longer, had more relevant experience than Complainant, had better performance, and received higher performance evaluations. According to the Agency, Complainant only offered her own unsupported allegations to establish pretext based on sex. The Agency argues that Complainant did not perform equal work, requiring equal skill, effort, and responsibility, as Coworker-1. According to the Agency, the pay difference between Complainant and Coworker-1 was not based on sex, but was initially based on Coworker-1’s longer tenure with the Agency and his longer experience as a Program Analyst and was subsequently based on his better job performance and higher performance evaluations. The Agency notes that Complainant’s MBA is not required for her position and does not entitle her to a promotion. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Timeliness EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c), unless the Agency extends the time limits in accordance with § 1614.604(c). The regulation set forth at 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of an Equal Employment Opportunity counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The 2022002700 6 Commission has adopted a reasonable suspicion standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. The Lilly Ledbetter Fair Pay Act of 2009 (Ledbetter Act), Pub. L. No. 111-12, 123 Stat. 5. The Ledbetter Act applies to all claims of discrimination in compensation, pending on or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that: . . . an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice. The Ledbetter Act was passed in response to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). In brief, the plaintiff, Ledbetter, had filed a private sector charge with the Commission several months prior to her retirement. In her charge, she alleged that she had been paid less than her male counterparts because of her sex over the course of almost 20 years. The Supreme Court held in Ledbetter that the period for filing an EEOC charge for pay discrimination began when the pay-setting decision was made. Plaintiff Ledbetter’s claim was therefore late. Following the Ledbetter decision, Congress passed the Ledbetter Act determining that the Supreme Court's decision had been unduly restrictive regarding the time period within which victims of compensation discrimination could challenge and recover for discriminatory compensation decisions or other practices. The AJ found that Complainant’s claims should be dismissed under 29 C.F.R. § 1614.107(a)(2) for untimely EEO counselor contact. Upon review, we do not agree with the AJ’s determination that Complainant failed to act with due diligence. Complainant received a September 6, 2017 Tentative Job Offer that erroneously included Coworker-1’s name on the second page, which led Complainant to believe that Coworker-1 started at the same salary of $55,648. ROI at 149-50, 157-60. Complainant also stated that Coworker-1 told her he “took a pay cut” when he returned to Aviation Medicine in 2017. ROI at 149. According to the record, Complainant began to suspect discrimination on August 27, 2020, when she learned for the first time that Coworker-1 2022002700 7 earned nearly $20,000 more than Complainant and had received a pay band increase in FY 2017. Complainant initiated contact with an EEO counselor shortly after she began to suspect discrimination. Additionally, applying the Ledbetter Act to Complainant’s Title VII compensation claim, Complainant’s claim is timely because she contacted an EEO counselor within 45 days of receiving a paycheck. We find that Complainant’s September 3, 2020 EEO counselor contact was timely and will consider the AJ’s granting, in the alternative, summary judgment in favor of the Agency. Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Complainant alleged a violation of the EPA. The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept. 12, 2000), req. for reconsideration denied, EEOC Request No. 05A10076 (Aug. 12, 2003). 2022002700 8 Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. We note that the EPA is limited to certain sex- based differentials in wages. The EPA does not prohibit discrimination in other aspects of employment, even those that have compensation-related consequences, such as hiring, firing, promotion, transfer, or other issues. Wiley v. Department of the Treasury, EEOC Appeal No. 01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130 (7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope of the EPA but actionable under Title VII)). The requirement of “equal work” does not mean that the jobs must be identical, but only that they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and responsibility used to measure the equality of jobs are not precisely definable. Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. § 1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. § 1620.17(a). In the present case, even if Complainant had established a prima facie case of discrimination under the EPA, we find that the difference in pay was justified by a factor other than sex. The record establishes that Coworker-1 was paid more than Complainant when they started their positions with the Airman Medical Certification Program based on his longer tenure with the Agency and because he had more relevant experience for the position. Coworker-1 started working for the Agency in August 2012, while Complainant began working for the Agency in June 2014. Coworker-1 began working as a Program Analyst in August 2014, whereas Complainant began working as a Program Analyst in September 2015. To the extent Complainant contends on appeal that this is not a valid EPA defense because the Agency did not consistently rely on such qualifications, Complainant has not established the existence of a genuine issue of material fact regarding this issue. To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 2022002700 9 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory explanation for paying Coworker-1 a higher starting salary than Complainant when they started in the Airman Medical Certification Program was, as discussed above, that Coworker-1 had worked for the Agency longer and had more relevant experience. As evidence of pretext, Complainant speculated that Coworker-1 was paid more because he is male and because his wife is disabled and does not work, so he was considered the “sole provider.” However, Complainant admitted that she had not heard the Regional Flight Surgeon or any other supervisor or manager make disparaging comments about sex or otherwise suggest that Coworker-1 received a higher salary because he was male and seen as a “provider.” AMSJ at Exhibit 7. We find that Complainant has not established pretext for discrimination based on sex. Regarding the pay band increase, the Agency’s legitimate, nondiscriminatory reason for providing Coworker-1 the pay band increase was based on his excellent performance. The Agency’s legitimate, nondiscriminatory reason for denying Complainant’s request for a pay band increase was that the Regional Flight Surgeon stated that Complainant was not performing H pay band work at the time. The Regional Flight Surgeon stated that Coworker-1 handled more complex cases than Complainant. Although Complainant disputes the Regional Flight Surgeon’s assessment, we do not find that Complainant has established a genuine issue of material fact regarding this issue. Complainant argues that the Agency’s explanation that Coworker-1 received a pay band increase based on his performance is pretextual because Coworker-1 had not yet received a performance evaluation from the Airman Medical Certification Program. However, at the time the Regional Flight Surgeon prepared the pay band increase justification in August 2018, she had already observed Coworker-1’s performance for the vast majority of the performance appraisal period. Moreover, the FY 2018 performance evaluations support the Regional Flight Surgeon’s assessment of their relative performance, as Complainant received a rating of “Exceeds,” whereas Coworker-1 received a higher rating of “Significantly Exceeds.” ROI at 196-99, 266-70. Although Complainant contends that she was more qualified for a pay band increase when she submitted her request than Coworker-1 was when he received a pay band increase because she had a master’s degree, the record does not reflect that a master’s degree was required for the Airman Medical Certification Program. Finally, Complainant cites the Regional Flight Surgeon’s draft memorandum requesting a pay increase for Complainant, which praised Complainant’s performance, as evidence that she was qualified for a pay band increase. Complainant Motion for Summary Judgment at Exhibit C-3. However, because the record does not reflect that the Regional Flight Surgeon completed or signed the draft memorandum, this unsigned draft does not create a genuine issue of material fact concerning Complainant’s performance. Complainant has not established that she was subjected to discrimination as alleged. 2022002700 10 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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 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. 2022002700 11 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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. 2022002700 12 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 March 22, 2023 Date