Shellie T.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Feb 8, 2017

0120142866 (E.E.O.C. Feb. 8, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Shellie T.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120142866

Agency No. DAL-13-0575-SSA

DECISION

On August 8, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 18, 2014, final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For
the following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Case
Technician, GS-8, at the Agency’s Office of Disability Adjudication and Review in Dallas,
Texas.

On July 18, 2013, Complainant filed an EEO complaint wherein she claimed that:

1. The Agency subjected her to discriminatory harassment on the bases of her race
(African-American), religion (Christian), age (56), and in reprisal for her prior
protected EEO activity under Title VII and the ADEA 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.
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a. On August 26, 2013, the Hearing Office Director sent Complainant’s Supervisor
to ask Complainant to leave a vacant office where she was eating lunch when
the Hearing Office Director previously allowed her to occupy another office
during her lunchtime;

b. On May 9, 2013, Complainant’s religious reading materials in the employee
break room were found to be offensive by the Hearing Office Director who
advised Complainant that she did not want to see the materials in the break room
again;

c. On April 12, 2013, the Hearing Office Director failed to consider
Complainant’s request for participation in the Week to Extend Knowledge
Program by falsely claiming lack of knowledge about the program;

d. In January 2013, the Hearing Office Director spoke to Complainant about
religious counseling on numerous occasions and informed the employees that
she did not want any “religious stuff hanging outside their cubicles” or religious
materials in the office; and

e. Since July 2011, Complainant’s work has been unduly scrutinized; promises of
promotions and training have not been kept; management has criticized
Complainant’s ability to learn, and when she complained about this treatment,
she was reassigned to different supervisors;

2. Complainant claimed discrimination on the aforementioned bases when:

a. On May 14, 2013, Complainant’s request for advanced leave was denied;

b. On May 15, 2013, Complainant was charged fifteen minutes absent without
leave (AWOL); and

c. In 2011, Complainant was issued a reprimand.

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). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency had accepted for investigation each claim except for claim 2(c). The Agency
dismissed claim 2(c) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant
failed to initiate contact with an EEO Counselor in a timely manner. The Agency noted that
despite the dismissal of this claim, it investigated this matter in connection with Complainant’s
harassment claim.
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The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant claimed that the discriminatory actions were
committed by or ordered by the Hearing Office Director (HOD), her second-level supervisor.
With regard to claim 1(a), Complainant claimed that several individuals used vacant offices for
lunch, to make personal telephone calls, or to take a nap during lunch, and they were never
told to leave the offices. The HOD asserted that she received numerous complaints that
employees were utilizing vacant rooms to eat their lunch, take a nap, make personal telephone
calls and visiting. According to the HOD, during a staff meeting on August 1, 2013, she
informed union representatives that employees were no longer to use vacant offices. However,
the HOD stated that she also made clear that an employee who needed to use a private office
could ask their supervisors for permission and arrangements would be made. The HOD
explained that on August 26, 2013, an employee noticed Complainant in a vacant
Administrative Law Judge (ALJ) Office and thereafter she instructed Complainant’s Supervisor
to ask her to return to work.

Complainant’s Supervisor stated that Complainant was in the ALJ’s office doing homework
and eating her lunch. He asserted that he informed Complainant that she should tell him when
she wanted to use a vacant office, but that she did not have to leave at that time. According to
the Supervisor, he has allowed Complainant and others to use empty offices if they had a
personal call or a project on which they were working.

With respect to claim 1(b), the Agency noted that Complainant acknowledged that she placed
the gospel tracts in the break room because she wanted reading material for herself when she
was there. According to Complainant, the HOD took possession of the gospel tracts and
during a staff meeting called them offensive, threw them away and said no one was to have
that type of material in the break room. Complainant claimed that the HOD came to her
cubicle and instructed her that she needed to remove her religious items. Complainant argued
that it was her understanding that government policy did not preclude religious materials in the
break room or inside her work cubicle. Complainant maintained that the HOD knew the
gospel tracts belonged to her and instead of returning them to her, she maliciously threw them
in the trash.

The HOD asserted that she did not know who placed the religious materials in the break room.
The HOD stated that the two religious pamphlets referenced hell, damnation, and punishing
people. According to the HOD, she informed the staff on August 1, 2013, that this kind of
material could not be distributed in a Federal office building based on the Standards of
Conduct, which prohibit distribution of religious materials in the workplace. The HOD
acknowledged that many employees have religious materials within their cubicles or offices
and are permitted to do so as long as the material is not offensive to anyone else.

As for claim 1(c), Complainant sought to participate in the Week to Extend Knowledge
Program but was told that the Program was offered in Region 4, and not in Complainant’s
Region 6. According to the Supervisory Management Analyst, she informed the HOD and
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Complainant that the Regional Commissioner had not issued approval for the Dallas Region to
participate and that the Headquarters Training Division was contacted to see if the Dallas
Region was participating in the Program.

With regard to claim 1(d), Complainant stated that coworkers asked her for religious guidance
but her Supervisor told her to stop counseling staff. Complainant denied counseling staff and
instead characterized her discussions with coworkers as answering their questions and
providing scripture if they asked about it. The Agency noted that the Supervisor stated that
Complainant was willing to discuss various matters with employees and assisted some of them
with difficult situations.

In terms of claim 1(e), Complainant asserted that she was promised a promotion in 2009.
Complainant stated that she also did not receive training in 2009. Complainant maintained that
she sought help from October 2012 until March 2013 but a Regional Management Officer did
not investigate the problem and only offered her a lateral position and a move to a different
facility.

The HOD asserted that Complainant was treated fairly, was not scrutinized, and received a
rating of “Successful”. According to the HOD, Complainant had issues with not meeting
deadlines or forgetting to send hearing notices but she did not demonstrate major problems.
The official who supervised Complainant in 2009 stated that Complainant was in the COTA
training program then but that she had a difficult time remembering the training she received
and made repeated mistakes. According to this official, Complainant agreed after three months
to return to her former position. This official denied Complainant’s claim that she stated or
implied Complainant was too old for the job.

The Regional Management Officer stated that Complainant kept saying that she needed
assistance but that Complainant did not indicate what she wanted her to do. The Regional
Management Officer asserted that Complainant stated in November 2012 that her Supervisor
was looking over her shoulder, but that things were okay. Complainant subsequently
mentioned being promised a paralegal position when she left the Regional Office years earlier.
According to the Regional Management Officer, she asked Complainant whether she had a
signed agreement for the position, but Complainant did not respond. The Regional
Management Officer stated that on March 27, 2013, Complainant contacted her about being
pressured by a new supervisor and she requested to be placed in a temporary spot. The
Regional Management Officer stated that she told Complainant the Regional Office did not
have a temporary position and asked her if she wanted to transfer to another office, and
Complainant inquired whether it was a lateral transfer. The Regional Management Officer
noted that in April 2013, she asked Complainant if she would consider a reassignment to the
Dallas Downtown Office, but Complainant did not respond.

One of Complainant’s coworkers (Hispanic) stated that after the HOD arrived at the office,
everyone was monitored and the office was micromanaged. Another coworker (African-
American) asserted that there has been more oversight since the HOD assumed control. This
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coworker stated that African-Americans were closely monitored and he considered
management’s actions to be harassment. Another employee (African-American) also asserted
that African-American employees are more closely scrutinized than others although he
acknowledged that everyone’s work is closely scrutinized. He stated that supervisors are
constantly walking around looking for mistakes. An additional coworker (Caucasian) noted
that work was more closely scrutinized after the HOD’s arrival. This employee stated that
when management became upset with an employee, he or she was treated “like a dog.”

In its analysis of claim 1, the Agency found that Complainant had not established that she had
been subjected to harassment. The Agency noted as to claim 1(a) that by occupying a vacant
office, Complainant violated the directive the HOD issued on August 1, 2013. With regard to
claim 1(b), the Agency stated that the HOD asserted that she was not aware of who placed the
religious material in the break room. The Agency stated that religious materials were
permitted inside employee cubicles but religious materials were not to be displayed in public
places and in areas frequented by all employees. As for claim 1(c), the Agency stated that the
training at issue was not available to Complainant’s region.

As to claim 1(d), the Agency noted that the Supervisor at issue stated he had no knowledge of
this matter. The Agency stated that this incident appeared to be a one-time occurrence with
this Supervisor. With regard to claim 1(e), the HOD denied that Complainant was being
unduly scrutinized. The Agency stated that the official who supervised Complainant during
her detail in 2009 commented that Complainant had difficulty remembering the training
material and committed repeated mistakes. Specifically, Complainant was cited for having a
difficult time analyzing data and communicating findings to other offices. The official denied
that she told Complainant she was too old to perform the job or inferred that was the case.

With regard to claims 2(a-b), Complainant stated that she had been on leave and her return
flight was canceled. Complainant provided this information to her Supervisor at the time and
the Supervisor charged her leave without pay rather than issue her four hours of advanced
leave. Complainant stated that she was fifteen minutes late to work the following day and was
charged AWOL. The Agency noted that Complainant claimed that the HOD was responsible
for the denial of her advanced leave request. According to Complainant, the HOD is an angry
person and does not like African-Americans. The Supervisor in this matter stated that when
Complainant contacted her about the canceled flight, the telephone connection was poor and
Complainant did not identify what type of leave she was seeking. This Supervisor asserted that
she did not recall Complainant requesting advanced leave and such leave was not requested in
writing. According to the Supervisor, the personnel guide and the AFGE contract requires that
a request for advanced leave be made in writing to the supervisor and has to be approved
before it is used. The Supervisor stated that she approved advanced sick leave for another
employee in the same timeframe who submitted the required medical documentation in
advance. A Caucasian coworker stated that staff is to call in by 9:30 a.m. if they are going to
be late. The coworker stated that the Supervisor at issue has charged her AWOL.

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In its analysis of claim 2, the Agency found that Complainant did not establish that she had
been discriminated against. With regard to claim 2(a), the Agency noted that Complainant’s
Supervisor did not recall that Complainant requested any particular type of leave when she
called to report her canceled flight. The Supervisor stated that Agency policy requires that
requests for advanced leave be in writing and submitted to the Supervisor prior to the time it is
to be used. As for claim 2(b), the Agency stated that pursuant to the leave policy Complainant
was charged fifteen minutes AWOL because she did not call to say she would be late and she
did not have a leave balance. The Agency pointed out that management officials and several of
Complainant’s coworkers attested to the leave policy.

With regard to claim 2(c), the Agency determined that Complainant failed to set forth a prima
facie case of discrimination under the alleged bases. The Agency stated that Complainant was
not subjected to an adverse action and did not identify any similarly situated individuals who
were treated more favorably. In terms of Complainant’s claim of reprisal, the Agency
determined that Complainant failed to establish a temporal or logical nexus between her 2009
EEO activity and the instant claim as too much time has elapsed between the claims. Further,
with respect to her hostile work environment claim, the Agency stated that the challenged
actions were not sufficiently severe or pervasive to adversely affect Complainant’s
performance or create an abusive working environment. The Agency explained that the
matters at issue are the type of events that routinely occur in the workplace when management
addresses concerns regarding an employee’s conduct.

The Agency stated that although Complainant claimed the workplace evidenced a pattern of
oppressive conduct that resulted in worse treatment for African-American employees, the
HOD’s management style of oversight and scrutiny affected all employees similarly. The
Agency determined that Complainant did not present evidence of a pattern of oppressive
conduct to adversely affect her performance or create an abusive working environment. The
Agency reasoned that the incidents at issue did not rise to the level of severity or pervasiveness
to constitute harassment, and Complainant did not present credible evidence that the matters at
issue were based on her protected bases. The Agency concluded that Complainant had not
established that she had been discriminated against as alleged. Complainant filed the instant
appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s findings lack credibility in light of the
Commission’s criticism of various aspects of the Agency’s EEO program. Complainant
challenges the impartiality of the investigative process. Complainant maintains that the
Agency’s final decision reflects the testimony of Agency Supervisors rather than witnesses on
her behalf. Complainant points out that one employee stated that although the HOD makes the
environment hostile for everyone, she makes it significantly more difficult for females and
African-Americans. According to an African-American employee, mistakes are not held
against some Caucasian and Hispanic employees but they are held against African-American
personnel. Complainant also argues that the Agency fragmented her harassment claim and
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analyzed the incidents separately rather than considering a persistent pattern of harassing
conduct.

In response, the Agency reiterates many of the points it presented in its final decision to
support its determination of no discrimination. With regard to Complainant’s argument on
appeal concerning the Commission’s 2014 evaluation of the Agency’s EEO Program, the
Agency asserts that Complainant has presented no specific argument or evidence that her claim
was not properly investigated. In contrast to Complainant’s contention, the Agency states that
it properly considered non-supervisory employees’ statements. The Agency maintains that
these statements from the non-supervisory employees corroborated the Managers’ statements
and led to a finding of no discrimination.

ANALYSIS AND FINDINGS

Initially, with regard to the Agency’s dismissal of claim 2(c), we observe that the alleged
reprimand was issued in 2011. Complainant did not initiate contact with an EEO Counselor
until May 16, 2013, after the expiration of the 45-day limitation period for contacting an EEO
Counselor. Complainant has not presented sufficient argument or evidence to justify an
extension of the 45-day limitation period. Accordingly, the Agency’s dismissal of claim 2(c)
pursuant to 29 C.F.R. § 1614.107(a)(2) was proper and is AFFIRMED.

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). He must generally establish a prima facie case by demonstrating that he
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). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the
protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and
(4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency 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).

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To establish a claim of harassment Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she 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
her statutorily protected classes; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, in order to establish her harassment claim, Complainant must show that she 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.

The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar.
3, 1994). The Agency explained that Complainant was asked to leave the vacant ALJ office
pursuant to a directive issued in a staff meeting on August 1, 2013, where the HOD informed
union representatives that employees were no longer to use vacant offices. As for the
confiscation of religious reading material in the break room, the HOD asserted that she did not
know who placed the religious materials in the break room. The HOD stated that the two
religious pamphlets referenced hell, damnation, and punishing people. The Hearing Office
Director spoke to Complainant about religious counseling on numerous occasions and informed
the employees that she did not want any “religious stuff hanging outside their cubicles” or
religious materials in the office. The HOD informed the staff on August 1, 2013, that this
kind of material could not be distributed in a Federal office building based on the Standards of
Conduct, which prohibit distribution of religious materials in the workplace. With regard to
the claim concerning Complainant’s request to participate in the Week to Extend Knowledge
Program, the Agency stated that approval was not given for Region 6 to participate in the
Program.

As for Complainant’s work being unduly scrutinized, the Agency stated that Complainant was
treated fairly and denied her work product was scrutinized. Statements from various
employees indicated that scrutiny and micromanagement was instituted upon the HOD’s
arrival. With respect to Complainant’s claim of a broken promise concerning promotion to a
paralegal position, the Regional Management Officer stated that she asked Complainant
whether she had a signed agreement for the position, but Complainant did not respond. As to
being denied training and being criticized about her ability to learn, the official who supervised
Complainant in 2009 stated that Complainant was in the COTA training program then but that
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she had a difficult time remembering the training she received and made repeated mistakes.
According to this official, Complainant agreed after three months to return to her former
position. Upon consideration of the Agency’s explanation for the matters at issue in
Complainant’s harassment claim, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions.

Complainant argues that several individuals used vacant offices for lunch, to make personal
telephone calls, or to take a nap during lunch and they were never told to leave the offices.
However, we find that the HOD set forth a clear policy prior to this incident that employees
were not to utilize vacant offices without first receiving permission from their supervisor. As
for management’s handling of the religion issues, Complainant argues that it was her
understanding that government policy did not preclude religious materials in the break room or
inside her work cubicle. Complainant maintained that the HOD knew the gospel tracts
belonged to her and instead of returning them to her, she maliciously threw them in the trash.
The Agency stated that religious materials were permitted inside employee cubicles but
religious materials were not to be displayed in public places and in areas frequented by all
employees. We find that Complainant did not establish that policy was not in effect or that the
HOD was aware that the religious materials belonged to her. We observe that Complainant
has not presented any argument or evidence to refute the Agency’s assertion that Region 6
personnel were not authorized to participate in the Week to Extend Knowledge Program.

As for the scrutiny of Complainant’s work, there is a consensus that closer monitoring of
personnel was instituted by the HOD. Some employees believe that the scrutiny has been
greater toward African-American personnel. However, the preponderance of the evidence
indicates that the scrutiny has been even-handed as the HOD has imposed practices that are in
general resented by both African-American and non-African-American employees. With
respect to the denial of a promotion, Complainant has not refuted the Agency’s assertion that
she did not respond when asked whether she had a writing agreement for a promotion to a
Paralegal position. We note that Complainant received training in 2009 in the COTA
Program. Complainant argues that her training in the COTA Program was adversely impacted
by her Supervisor who disparaged her by indicating she was too old for the position. We find
that Complainant has not presented evidence that refutes the Supervisor’s assertion that her
criticism of Complainant was based on difficulties in Complainant’s job performance and not
her age. Upon consideration of the arguments and evidence submitted by Complainant, we
find that Complainant has not established that the Agency’s explanation for the actions at issue
was pretext intended to hide discriminatory motivation. We find that Complainant was not
subjected to harassment based on any of the alleged bases.

With regard to claims 2(a-b), we shall assume arguendo that Complainant set forth a prima
facie case of discrimination under each of the alleged bases. The Agency stated that
Complainant was denied advanced leave because she did not comply with Agency policy that
required a request for advanced leave be in writing and submitted to the Supervisor prior to the
time it is to be used. As for Complainant being assessed fifteen minutes of AWOL, the
Agency asserted that Complainant reported to work late and did not call in by 9:30 a.m. to say
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she was going to be late. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for the denial of the advanced leave request and the issuance of
fifteen minutes of AWOL.

Complainant argues that she called the office from the airport once she learned that her flight
was canceled. Complainant maintains that she requested advanced leave from her Supervisor
during the telephone conversation. However, Complainant has not presented evidence that
contradicts the Supervisor’s assertion that the connection on the phone call was poor and that
the Supervisor did not hear her request any type of leave. With respect to the issuance of the
AWOL, Complainant does not deny that she arrived to work late and did not call in advance.
A Caucasian coworker stated that the policy was for staff to call in by 9:30 a.m. if they are
going to be late. She stated that the Supervisor at issue has charged her AWOL. We find that
Complainant has not established that the Agency’s stated reasons for these actions were pretext
intend to mask discriminatory motivation.

As for Complainant’s argument on appeal concerning the Agency’s EEO program and
investigation, we discern no deficiencies or biases in the investigation. Complainant’s
witnesses presented testimony and their statements were considered by the Agency in reaching
its decision. Notwithstanding any inadequacies that may have existed in the Agency’s EEO
program at the time this matter was investigated and decided, we find that the record supports
a finding of no discrimination.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED. The Agency’s
dismissal of claim 2(c) on the grounds of untimely EEO Counselor contact is also
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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
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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

February 8, 2017
Date