[Redacted], Mafalda H., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2021004293 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mafalda H.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency. Appeal No. 2021004293 Agency No. NCN-20-ARC-00055 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 25, 2021, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Research Scientist at the Agency’s Ames Research Center in Moffett Field, California. On July 9, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian), national origin (China), sex (female), disability (physical), and age (75), and in reprisal for prior protected EEO activity, when: 1. on January 30, 2017, management labeled Complainant as a “difficult old goat,” and accused her of lying and failing to follow travel guidelines; 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. 2021004293 2 2. on May 12, 2017, Complainant’s Supervisor gave Complainant a low performance rating; 3. on unspecified dates, beginning in the summer of 2017, Complainant’s Supervisor bullied and threatened Complainant, including calling and sending emails when she was at home on her days off; 4. on July 10, 2018, Complainant’s Supervisor sent a derogatory email regarding Chinese espionage to the entire staff; 5. on August 14, 2018, Complainant’s Supervisor and second-line supervisor, the Division Chief, “manufactured a lie” regarding a possible ethics violation, which “alarmed” the legal office, and resulted in the circulation of a “sensitive email” and disapproval of Complainant’s travel; 6. from August 2018 to August 2019, Complainant’s Supervisor and the Division Chief delayed or denied approval for Complainant’s travel to attend scientific meetings, including the denial of her fully reimbursable travel to Brown University and Russia; 7. on July 23, 2019, Complainant’s Supervisor denied Complainant’s sick leave request for August 5-15, 2019; 8. on July 25, 2019, Complainant’s Supervisor informed Complainant that she had no project support for fiscal year 2020; 9. from September 16-25, 2019, Complainant’s Supervisor placed Complainant in an absent without leave (AWOL) status, after denying her leave request; 10. in September 2019, Complainant’s Supervisor reported to the Office of Inspector General (OIG) that Complainant allegedly traveled to Russia to present a paper without approval, and she took her government-issued laptop on the trip, resulting in the confiscation of the laptop by security and the OIG: 11. on January 16, 2020, Complainant’s Supervisor ordered Complainant to cease and desist attempts to correct the AWOL action for September 16-25, 2019; 12. from January 23 to February 6, 2020, management forced Complainant to share an office with a junior researcher;2 13. on February 5, 2020, Complainant’s Supervisor conditionally approved Complainant’s sick leave request for eye surgery, scheduled for February 19, 2020; 14. on February 6, 2020, Complainant was told that if she failed to pack belongings into a box prior to going on sick leave, management would do it; 15. since February 10, 2020, Complainant was denied a reasonable accommodation to remain in her office; and 16. beginning on April 17, 2020, Complainant alleged dissatisfaction with the processing of her informal EEO complaint. The Agency accepted claim 15 for investigation. However, the Agency dismissed claims 1-14 as untimely. 2 The Agency amended the wording of claim 12 in the final decision to note that Complainant was notified that she would be moved from her current office to a smaller office. 2021004293 3 The Agency also did not accept claim 16 for investigation because Complainant’s dissatisfaction with the processing of her informal EEO complaint does not state an actionable claim. The Agency informed Complainant that it would provide a separate decision for the spin-off claim. Report of Investigation (ROI) at 96-100, 102. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency noted that Complainant clarified that management informed her that she would not be allowed to remain in her current office on February 21, 2020, not February 10, 2020. Complainant also clarified that she alleged disparate treatment and a failure to accommodate for claim 15. The Agency also stated that, while claims 12 and 14 were not discrete acts of discrimination, they could be “collapsed” into claim 15, and it would include claims 12 and 14 as background information for its analysis of claim 15. The Agency incorporated its previous dismissals for untimely EEO contact for claims 1-11, and 13. The Agency noted that Complainant’s initial EEO contact was more than two months after the most recent incident, and that her own statements made clear that she suspected discrimination as early as 2017, but she did not produce any information to support an extension of the time limit for her initial EEO contact. Further, the Agency determined that it could not properly consolidate claims 1-11, or 13, into a hostile work environment allegation with claim 15 because the other events were wholly unrelated to Complainant’s office relocation. For claim 16, the Agency stated that the Director of the Complaints Management Division (“Complaints Director”) in the Office of Diversity and Equal Opportunity investigated Complainant’s contentions, such as the EEO Counselor handing her complaint in “a cavalier manner.” The Complaints Director previously informed Complainant that the Agency properly processed her complaint, and he noted that the veracity of the management officials’ statements would be properly considered in the adjudication of the complaint. In the final decision, the Agency dismissed claim 16. The Agency also concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed, and Complainant provided multiple statements and documents in support of her appeal. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). 2021004293 4 See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). New Evidence As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See id. at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that any new material was not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider new evidence on appeal. For the sake of argument, we find that even if this evidence is considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove by a preponderance of the evidence that she was discriminated against. Dismissals On appeal, Complainant challenges the Agency’s dismissals of her untimely claims. Complainant asserts her belief that, as long as the most recent event of discrimination occurred within 45 days of her EEO contact, the EEO Office should consider the “whole ordeal” leading to the most recent event. The Commission has recognized that a hostile work environment can involve harassing incidents linked by a pattern of conduct. A discriminatory harassment complaint will not be time barred where acts constituting the claim are part of the same unlawful practice and at least one act fell within the time limit. See Wegener v. Dep’t of the Interior, EEOC Appeal No. 01A03847 (June 11, 2003); National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). Complainant initiated her EEO contact on March 27, 2020; as such, events prior to February 11, 2020, are untimely. ROI at 32. Complainant provided evidence to show that the Agency informed her that it would sustain the decision to move Complainant to a different office on February 21, 2020, and we find that claim 15 is timely. As noted by the Agency in the final decision, claims 12 and 14 are related to claim 15, and while they are not timely discrete acts, we find that they should be considered as part of a timely harassment claim. However, we find that the remaining claims are unrelated to claim 15 and are not part of the same unlawful practice of denying Complainant’s request to remain in her current office. As such, we find that the Agency properly dismissed claims 1-11, and 13, as untimely. 2021004293 5 For claim 16, we note that the Commission’s regulation allows for the dismissal of an allegation of dissatisfaction with the processing of a previously filed complaint. 29 C.F.R. § 1614.107(a)(8). Here, Complainant’s allegations are related to the processing of this EEO complaint, and not a previously filed complaint, and it should not be dismissed. Accordingly, this decision will address Complainant’s claim of harassment for incidents 12, 14, and 15; and claim 16. Reasonable Accommodation (Claim 15) In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability; (2) she is a qualified individual with a disability; and (3) the Agency failed to provide 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). “The term ‘qualified,’ with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such 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). An agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o), (p). Assuming, for the purpose of analysis and without so finding, that Complainant is a qualified individual with a disability, we find that the Agency did not fail to provide a reasonable accommodation. Complainant averred that she learned of the Agency’s reasonable accommodation process from the Disability Program Manager on June 9, 2020, and soon initiated the process. ROI at 130. On June 16, 2020, Complainant emailed her reasonable accommodation request to the Disability Program Manager for: (1) room temperature to be around 68 degrees; (2) adjustment of ventilation of Complainant’s office to have fresher air; (3) “allergic to seasonal pollen, all sort of chemical and printer ink”; and (4) an office “away from the more populated office cluster with higher stagnate concentration of chemical printouts and printers.” ROI at 254. The Disability Program Manager testified that Complainant indicated that she did not want to communicate with management directly, so the Disability Program Manager communicated with Complainant, on management’s behalf. ROI at 205. On July 16, 2020, the Supervisor issued a decision, granting Complainant’s requested accommodations. Specifically, Complainant was able to set the thermostat to her desired temperature, and she was given an office that was away from the printer room and equidistant from any specific population cluster. Regarding the ventilation, the Supervisor noted that the offices were ventilated with roof top filters, which were changed periodically, and the Agency would ensure that the filter was changed. The Supervisor also granted an air purifier to Complainant, if she did not already have one. ROI at 258-62. 2021004293 6 On July 22, 2020, Complainant informed the Disability Program Manager that she requested a reasonable accommodation to stay in her current office because the new office did not meet her requirements. For example, her current office was “configured” to meet her needs; it was away from the more populated office cluster; and it was the only location with a row of big windows and a large configuration for established senior scientists. ROI at 265. On August 21, 2020, the Supervisor issued a decision denying Complainant’s request to remain in her current office because the new office was an effective accommodation. In addition, Complainant’s medical documentation did not support an accommodation for an office to be adjacent to a row of big windows or a need for a larger office for medical reasons. ROI at 267, 263. Complainant offered a “rebuttal” of the July and August decisions and renewed her request. ROI at 271-4. On September 11, and 29, 2020, the Division Chief denied Complainant’s request to retain her current office. The Division Chief noted that Complainant was previously granted an office that met her needs and the submitted medical documentation did not justify the need for hallway windows. The Division Chief also stated that the new office has a window that can be opened when needed. In the alternative, the Division Chief offered Complainant the option to work from home fulltime, or a portable air filter for her new office. ROI at 276-9, 283. On October 16, 2020, the Division Chief reviewed Complainant’s third rebuttal and stood by his previous decisions because she did not provide any new medical documentation. ROI at 286. The Disability Program Manager added that Complainant was unable to identify any modifications to her current office to help with the airflow. When an assessment was conducted on the building, they found that all the offices were the same. ROI at 208-9. Complainant asserted that she did not accept the alternative accommodation of the smaller office because it was a “demotion and discrimination without justification,” and it did not meet her health requirements. ROI at 134. We find that the Agency properly granted Complainant alternative accommodations, and while the Rehabilitation Act provides that qualified individuals with a disability be granted an effective reasonable accommodation, it does not entitle them to the accommodation of their choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994); see also Enforcement Guidance at Ques. 9. Complainant provided no evidence to show that the granted accommodations were not effective, and in rejecting the new office, she made no effort to try the alternative accommodations of the new office with the additional air purifier or fulltime telework. Accordingly, we find that Complainant did not establish that the Agency violated the Rehabilitation Act. See Tyra F. v. Dep’t of the Army, EEOC Appeal No. 2020000022 (May 24, 2021) (the Commission found no violation of the Rehabilitation Act when the agency offered an alternative accommodation of a new workspace, and the complainant did not try the new space and only stated that it would be ineffective). Disparate Treatment (Claim 15) 2021004293 7 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). 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). 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age, disability, national origin, race, and sex, and in reprisal for prior protected EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The Assistant Division Chief of Operations (“Assistant Division Chief”) explained that she handles office space, and they were onboarding a lot of interns and temporary staff and running out of space. The Assistant Division Chief averred that Complainant’s office could fit three to four people, and they recommended moving Complainant to a single office that was approximately three to four doors down from her current office. When Complainant objected, the Assistant Division Chief informed Complainant that the rooms were the same, except one was smaller. ROI at 214-15. On February 21, 2020, the Director of the Exploration Technology Directorate informed Complainant that he sustained the decision to move her office. ROI at 66. After considering Complainant’s medical documentation, the Supervisor and Division Chief also decided to uphold the office move, with accommodations to address Complainant’s medical restrictions, as discussed above. The Division Chief added that Complainant’s February 2020 request to remain in her current office was based on seniority and not due to medical issues. ROI at 163-8, 174-7. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant argues that the final decision ignored her rebuttals and relies upon “baseless testimony/affidavits” of the management officials. Complainant Appeal Brief at 8. 2021004293 8 However, a review of Complainant’s rebuttal shows that she only offered bare assertions that management officials discriminated against her, which are insufficient to prove pretext or that their actions were discriminatory. For example, Complainant asserted that the Division Chief was singling her out and discriminating against her by “awarding [her] male counterparts, white female researchers and his favorites with less achievement & seniority than [Complainant] by offering them more desirable office accommodations.” ROI at 220. Complainant also contends that management officials were not truthful. However, Complainant did not request a hearing and we do not have the benefit of any credibility determinations by an Administrative Judge. 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 (Sept. 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). Complainant did not proffer evidence, aside from her bare assertions, to show that the management officials were not truthful for claim 15. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her age, disability, national origin, race, or sex, or in reprisal for prior protected EEO activity, for claim 15. Harassment (Claims 12, 14, and 15) As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases for claim 15. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment for claim 15. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2021004293 9 Regarding incidents 12 and 14, even assuming that Complainant belongs to statutorily protected classes based on her age, disability, national origin, race, sex, and protected EEO activity, and that she was subjected to unwelcome conduct based on a protected category, we find that these events do not constitute unlawful harassment. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no evidence that these work-related incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Accordingly, we find that Complainant did not establish that the Agency subjected her to harassment based on her age, disability, national origin, race, or sex, or in reprisal for prior protected EEO activity. Dissatisfaction with Processing of EEO Complaint (Claim 16) A complainant may raise dissatisfaction with the processing of an EEO complaint and has the burden of showing improper processing. If the Commission finds that the Agency has improperly processed the original complaint, and that such processing had a material effect on the processing of the complaint, it may impose sanctions on the Agency. See EEO MD-110, at Chap. 5, § IV.D. Complainant asserts that the EEO Counselor improperly processed her informal complaint. For example, Complainant alleges that the EEO Counselor interrupted the intake interview to take a donut delivery and attend to food on the stove, and she falsely accused Complainant of being resistant to the EEO counseling process. However, Complainant provided no supporting evidence and even crediting her assertions, we find that she has not met her burden to prove that any mishandling of her complaint had a material effect on its processing. Complainant also avers that an Agency official took the management officials’ “manufactured lies” to dismiss her case, and he was adversarial to Complainant and her attorney. Complainant notes that this official participated in two alternative dispute resolution sessions. Complainant Appeal Brief at 14. However, the Commission has found that “settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally.” See Emerson P. v. Dep’t of Health and Human Serv., EEOC Appeal No. 0120180491 (Sept. 19, 2019), quoting Harris v. Dep’t of the Navy, EEOC Request No. 05941002 (Mar. 23, 1995). See also Thomason v. Dep’t of the Army, EEOC Appeal No. 01A54061 (Jun. 22, 2006) (settlement negotiations, including statements or proposals are to be treated as confidential and privileged); Nelson v. Dep’t of Defense, EEOC Appeal No. 01A13907 (Sept. 25, 2001) (comments and actions made during a mediation session akin to 2021004293 10 actions during settlement negotiation). We find that any alleged statements made by this Agency official should kept confidential, and again, Complainant has not proven a material effect on the processing of her complaint. Accordingly, we decline to sanction the Agency. 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 decision finding that Complainant did not establish that the Agency discriminated against her based on her age, disability, national origin, race or sex, or in reprisal for prior EEO activity. 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. 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). 2021004293 11 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. 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