[Redacted], Donna A., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Jan 4, 2023

Appeal No. 2022000090 (E.E.O.C. Jan. 4, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donna A.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2022000090 Hearing Nos. 540-2018-00359X, 540-2019-00086X Agency Nos. FS-2018-00069, FS-2018-00662 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated September 7, 2021, finding no discrimination regarding her complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-12, Physical Scientist, Air Quality Specialist, Region 3, at the Agency’s Regional Office in Albuquerque, New Mexico. On February 1, 2018, and June 15, 2018, Complainant filed her complaints alleging discrimination and harassment based on sex (female) and in reprisal for prior EEO activity 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. 2022000090 2 1. On October 23, 2017, her immediate supervisor (S1), a GS-13 Air Program Quality Coordinator, denied her mandatory Civil Rights training. 2. From May - December 2017, S1 removed her duties and assigned them to a male coworker. 3. On unspecified dates, S1 removed her from participating in executive calls and denied her request to attend Forest Leadership Team meetings. 4. On June 4, 2018, her request for leave was denied. 5. On May 29, 2018, she was placed on a Performance Improvement Plan (PIP). 6. On May 4, 2018, she was issued a Letter of Instruction. 7. On May 2, 2018, she was denied participation in the National Air Program meeting and participation in executive conference calls. 8. On April 26, 2018, she was issued an “unsuccessful” on two critical elements on her midyear performance rating. 9. On April 2, 2018, she was issued a Letter of Expectation/Performance Warning. 10. On March 22, 2018, she was issued a seven-day suspension. 11. On several dates, she was subjected to various incidents of harassment, including but not limited to: a. From May - December 2017, S1 exhibited insulting behavior toward her when he yelled, chastised and demeaned her during staff meetings. b. From May - December 2017, her second-line supervisor (S2), a GS-14 Deputy Director of Ecosystems Analysis and Planning, failed to stop the harassing behavior against her by S1. c. On various occasions, including August 24, 2017, S1 gave her unrealistic deadlines to review and make comments on projects, particularly on an Air Quality document for an upcoming meeting. d. In early November, S1 bullied her during her appraisal/evaluation review. e. On November 9, 2017, S1 threatened to discipline her. f. On March 12, 2018, during a meeting, Regional Forester refused to face her while addressing the audience, singled her out, stared at her, and made disparaging remarks. g. On April 26, 2018, during a meeting, S1 yelled, screamed, ignored her cries, demanded she cease calling out for assistance, grabbed her phone, and prevented her from leaving saying, “No you can’t leave, you can’t leave me.” 2022000090 3 h. On June 5, 2018, she was accused of arguing with another individual in the office hallway and was not allowed to work on her EEO complaint. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated two complaints for a hearing. The Agency filed a motion for summary judgment. Complainant filed a response to the Agency’s motion. The Agency filed its reply to Complainant’s response. The AJ issued a decision without holding a hearing, finding no discrimination, adopting the Agency’s motion and reply. The record indicates that from 2010 to 2015, Complainant worked for the National Park Service, Grand Canyon National Park, in Department of the Interior. From February 2015 to January 2017, Complainant worked as a GS-11, Zone Air Quality Specialist in Region 8 at the Agency’s National Forests of Alabama Forest Supervisor’s Office in Montgomery, Alabama. On January 19, 2017, Complainant was promoted to a GS-12, Physical Scientist position in Region 3 at the Agency’s Regional Office in Albuquerque, New Mexico. Regarding claim 1, S1 indicated that Complainant was not denied the Civil Rights training. S1 stated that during the October 2017 session, Complainant needed to perform her filing duties and the training was deferred to the November 30, 2017 session at which time she attended the training. Regarding claim 2, Complainant claimed that in August 2017, S1 assigned the Prevention of Significant Deterioration (PSD) to a male coworker (C1) and a South Sacramento Restoration Project (SSRP) to another male coworker (C2). S1 indicated that he did not remove duties from Complainant, and he did not supervise C1 or C2. S1 stated that on August 8 and 30, 2017, he was instructed to review the requests for emission permits for PSD by Tucson Electric Power and Arizona Commerce Authority, respectively, and C1, who was a Washington Office air quality modeling specialist, offered his assistance with the reviews. Based on C1’s expertise in that area and Complainant’s challenges in finishing her existing assignments, S1 accepted C1’s offer. Regarding SSRP, the record indicates that Complainant was to do part of the project and C2 was to do a portion of the project. C2 informed S1 that because C2 would be going on “fire assignment”, it would make more sense for Complainant and C2 to switch the initially assigned roles so that C2 could then complete his portion upon return from the “fire assignment.” S1 agreed to this change of responsibilities for the project. Regarding claims 3 and 7, S1 indicated that in the past he asked her to handle the executive conference calls for him when he could not. S1 noted that Complainant was not on the executive team which was made up of an Air Program Coordinator from each Forest Service Region. S1 did not recall Complainant requesting to attend a Forest Leadership Team meeting. S1 noted that as an Air Quality staff member, Complainant would not normally attend such meetings unless requested for specific purposes. S1 indicated that he did not deny Complainant the opportunity to participate in the National Air Program meeting on May 2, 2018. Complainant acknowledged that she attended the 2017 National Air Program meeting in Alaska, but she did not know whether there was another National Air Program meeting in 2018. 2022000090 4 Regarding claim 4, S1 indicated that on May 31, 2018 (Thursday) he denied Complainant’s request for 36 hours of annual leave for June 4 - 7, 2018 (the following Monday - Thursday), due to the short notice of the request and due to the imminent business needs of the Air Program concerning her Acquisition Management deadline. Regarding claims 5, 8, and 9, concerning Complainant’s performance issues, S1 indicated that on April 2, 2018, he issued Complainant a Letter of Expectation (performance warning) to address her deficiencies in performance he discussed with her previously, especially in critical element 1 (mission results) and critical element 2 (managing work assignments). Therein, S1 informed Complainant that in order to successfully meet his expectation in the critical elements, she was required to, in part: (1) discuss next steps for Contracting Officer Representative certification by April 4, 2018; (2) prepare lichen proposal and agreements by April 13, 2018; (3) run the Consume model on her computer and perform a test simulation by April 16, 2018; and (4) organize electronic files in Pinyon (the deadline to be determined on April 16, 2018). On April 26, 2018, during a midyear performance review, S1 informed Complainant that she was failing critical elements 1 and 2 and highlighted areas for improvement. S1 also asked Complainant about progress on her two projects, i.e., Consume modeling and lichen agreement. Although Complainant told him that she was done working on those, S1 replied that she was not done since she did not complete the interpretation of Consume outputs and there was information missing in the lichen agreement and proposal he recently brought to her attention. On May 29, 2018, S1 indicated that based on guidance from Employee Relations (ER) Specialists, he, approved by Complainant’s second level supervisor (S2), Deputy Director, placed Complainant on a PIP because she failed to perform the required assignments under the Letter of Expectation, described above. Specifically, S1 stated that Complainant completed item (1), did not do items (2) and (4), and did only 50% of item (3) under the Letter of Expectation. The ER Specialists confirmed that S1 consulted with them about Complainant’s performance issues. After a review of supporting documentation, including S1’s notification of Complainant’s performance deficiencies and the Letter of Expectation, and the fact that Complainant was not performing at a fully successful level in her critical elements, the ER Specialists provided guidance and drafted the PIP at issue. Regarding claim 6, S2 indicated that Employee 1 notified her that Complainant was saying negative things about S1. Employee 1 also told S2 that Complainant stated that S1 texted a picture of himself naked to Complainant. The file contains no evidence of such a photo (or redacted photo). S2 reported this matter to ER Specialist who advised her to issue a Letter of Instruction to both Complainant and S1 and to limit their face-to-face contact. Based on the ER Specialist’s recommendation, S2 issued a Letter of Instruction on May 4, 2018, without stating any reason, to both Complainant and S1 that there would be no further face-to-face meetings or phone conversation between them pending an investigation of Complainant’s allegation, addressed below. 2022000090 5 Regarding claim 10, S1 indicated that on January 25, 2018, based on ER Specialist’s advice, he issued Complainant a notice of proposed seven-day suspension for failure to follow instructions and conduct unbecoming a federal employee. In the proposed suspension, S1 indicated five specifications for Complainant’s failure to follow supervisory instructions in September, October, and November 2017, when she failed to complete the organization of the electronic files by the deadline on two occasions; she failed to send S1 the link to a task log as requested; and she failed to submit a draft of the lichen agreement by the deadline or as requested. Therein, S1 also indicated two specifications for Complainant’s conduct unbecoming a federal employee. Specifically, S1 stated that on November 9, 2017, Complainant made inappropriate comments about his not issuing a disciplinary action against her by saying, “the reason you haven’t is because it would look like reprisal for me filing an investigation on you.” S1 also stated that on November 13, 2017, Complainant was rude and discourteous in her response when he asked her to provide him with an additional copy of the lichen agreement draft saying, “You can look through your inbox” claiming she previously sent it to him via email. On March 22, 2018, Deputy Regional Forester issued a decision sustaining the suspension. Regarding claim 11, Complainant alleged that she was subjected to harassment by S1, management, and a coworker which purportedly occurred from May 2017 to June 5, 2018. Specifically, Complainant claimed that on August 28, 2017, S1 yelled at her while she was on her phone trying to get an appointment with a doctor and demanded she get off the phone. She refused. After she finished the call, she went to see S1, but she then turned around and went back to her office. S1 denied yelling at Complainant as alleged. Complainant further claimed that on May 18, 2017, while she was in Juneau, Alaska at a National Air Program meeting, S1 yelled at her about a copy of the Regional Strategic Plan which she left on his chair before she left the office. S1 denied yelling at Complainant. S1 stated that from August 2017 onward, he had a neutral third party sit in at nearly every Air Program meeting for discuss Air Program updates, project work, and program tasks. S1 noted that Complainant was disrespectful, untruthful, and did not show up for the meetings on two occasions and left the meetings on two occasions. S1 denied subjecting Complainant to any harassing behavior. S1 denied bullying Complainant or threatened to discipline her on November 9, 2017, during her performance appraisal. S1 indicated that the meeting was brief and cordial, but Complainant seemed to be daring him to go forward with a reprimand and told him the only reason he had not done so was because it would appear to be reprisal, as described in claim 10. On April 26, 2018, during her midyear review, described in claim 8, Complainant stated that S1 yelled at her causing her to be upset and which made her cry. She then called her boyfriend who was a security guard downstairs, not an Agency employee. S1 indicated that he reminded Complainant that they were in a meeting and asked her to end the call. Complainant then called her attorney and wanted to put the attorney on speaker phone. S1 refused and told her it was against regulations. S1 suggested Complainant postpone the meeting but she remained in her chair. S1 indicated that Complainant became calm, and the meeting continued. 2022000090 6 At the end of the meeting, Complainant dated and initialed her 2018 performance plan for the third quarter. S1 denied yelling at her during the meeting. Regional Hydrologist, who on a few occasions served as Complainant’s supervisor in S1’s absence, participated in the meeting. Regional Hydrologist indicated that he did not witness S1 yelling, screaming, or doing anything threatening during the meeting. Complainant also indicated that S1 yelled at her during a weekly Regional Air Quality meeting on April 26, 2018. Staff at the meeting however indicated that they did not witness S1 yelling at Complainant, but they saw her upset and raising her voice to S1 saying, “You can’t make me do that. You are violating my civil rights.” S1 denied giving Complainant unrealistic deadlines as alleged. Specifically, S1 stated that on the morning of August 24, 2017, he gave instructions for her to review the air quality section and brief written comments as there were still over four hours remaining in the workday. Complainant did not tell S1 that these deadlines were unrealistic. In fact, stated S1, Complainant finished the assignments early, over an hour before the end of the workday. Regional Forester indicated that on March 12, 2018, there was a meeting with 125 to 150 attendees. Regional Forester stated that he did not single Complainant out, stare at her, or make remarks as she alleged. He indicated that he did not know who Complainant was at the time of the meeting. Regional Forester stated that he was trying to keep everyone in the meeting engaged. On June 5, 2018, an employee notified ER personnel that Complainant appeared to have an argument with her boyfriend in the hallway at the office. Complainant indicated that she was talking with her boyfriend because they were planning a trip. No action was taken on the part of the Agency. Despite Complainant’s claim, S1 stated that he did not deny her a time to work on her EEO complaint and did not recall granting her less time than she requested. S2 concurred with S1’s statement. Complainant, acknowledging that she was granted time to work on her EEO complaint, did not provide specific incident date(s) or the specificity of a reasonable time she requested but was denied working on her EEO complaint. The record indicates that in August 31, and November 16, 2017, Complainant reported that she was harassed by S1 from May to August 2017. Specifically, Complainant claimed that S1 made inappropriate comments to her and insulted, badgered, bullied, yelled at her on multiple occasions, including harassment allegations, described in claim 11. The Agency, as requested by S2 on Complainant’s behalf, conducted a Harassment Assessment and Review Team (HART) inquiry. After interviewing five employees, including Complainant and S1, and reviewing statements from witnesses, the HART, on February 12, 2018, found no misconduct or harassment on the part of S1. The HART found that S1 was doing his supervisory responsibilities by addressing and monitoring work assignments, timelines, due dates, performance, and conduct issues regarding Complainant. 2022000090 7 The record also indicates that in June - July 2018, the Agency conducted an Administrative Employee Misconduct Investigation (AEMI) regarding Complainant’s harassment claim against S1 which purportedly occurred from April 2017 to June 2018, including the photo allegation, described in claim 6, and harassment allegations, described in claim 11. After interviewing 13 individuals in person and two individuals via telephone and obtaining 15 signed sworn statements, on September 14, 2018, AEMI found no misconduct or harassment on the part of S1. Specifically, the AEMI stated that although Complainant told other coworkers about S1’s harassing behavior toward her, there was no witnesses to support her allegations. The record reveals that effective October 10, 2018, Complainant was removed from the Agency for failure to perform her position duties in an acceptable level. The removal is not at issue herein. The Agency’s final order implemented the AJ’s decision finding no discrimination. Complainant appeals from the Agency’s final order. On appeal, Complainant raises incidents that are not at issue in the instant complaint and will not be addressed in this decision. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. 2022000090 8 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on Complainant’s 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 Agency. 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); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). 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). Therefore, to prove Complainant’s harassment claim, Complainant must establish that Complainant was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2022000090 9 After a review of the record, we, assuming arguendo that Complainant had established a prima facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, Complainant attended the November 30, 2017 training session because she had to finish her filing assignment in October 2017. Regarding claim 2, S1 indicated that Complainant’s duties were not removed; rather the office received assistance regarding PSD. Regarding SSRP, the office allowed C2 to switch responsibilities for a project with Complainant due to C2’s unavailability during the first portion of the project. Regarding claims 3 and 7, Complainant was merely filling in for S1 for the executive conference calls and there was no National Air Program meeting on May 2, 2018, as alleged. Regarding claim 4, S1 stated that he denied 36 hours of annual leave because the request was made on short notice and due to business needs concerning Complainant’s assignment deadline. Regarding claims 5, 8, and 9, S1 indicated that Complainant had poor performance, specifically in her performance standard critical elements 1 and 2. After discussing Complainant’s performance deficiencies and when her performance did not improve, S1 issued her a Letter of Expectation; discussed the deficiencies and improvement during a midyear performance review; and ultimately issued the PIP. Regarding claim 6, S2 indicated that she issued a Letter of Instruction to both Complainant and S1 after Employee 1 notified S2 that Complainant said negative things about S1 and that Complainant stated that S1 sent Complainant a picture of himself naked. The Letter of Instruction simply told S1 and Complainant to not have contact until the matter was investigated by the Agency. Regarding claim 10, Complainant was issued a seven-day suspension for failure to follow S1’s instruction and conduct unbecoming a federal employee. S1 previously issued a proposed suspension indicating five specifications of Complainant’s failure to follow his instructions and her inappropriate comments. The Commission has held that agencies generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Although Complainant disagreed with the severity of the assessed discipline, we note that the Commission cannot stand as a “super-personnel” department. See Janel B. v. Soc. Sec. Admin., EEOC Appeal No. 2019000126 (Aug. 12, 2020). Upon review, we find that Complainant failed to establish that the Agency’s articulated reasons were a mere pretext for discrimination. After a review of the record, we find that Complainant failed to show that any of the actions were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Regarding her claim of harassment, alleged in claim 11, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. 2022000090 10 Further, the Commission has held that routine work assignments, instructions, admonishments, and addressing performance deficiencies do not rise to the level of harassment because they are common workplace occurrences. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014); Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). We note that anti-discrimination statues are not civility codes designed to protect against the “ordinary tribulations” of the workplace. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 23 U.S. at 81. Upon review, we find that Complainant failed to make such showing here. Further, the record reveals that the Agency properly conducted two investigations, i.e., the HART and the AEMI, concerning Complainant’s harassment claim against S1 and S1’s purported misconduct. The HART and AEMI concluded no harassment and no misconduct on the part of S1. Further, S1 indicated that he did not deny Complainant’s requested time to work on her EEO complaint. Complainant acknowledged she was given a time to work on her EEO complaint. Complainant did not specify the specific date she was allegedly denied time to work on her EEO complaint and we find that Complainant has failed to show that she was denied such time. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination or retaliatory intent. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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). 2022000090 11 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. 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. 2022000090 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 January 4, 2023 Date