Tyra F.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

0120182247-0120182440 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyra F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal Nos. 0120182247, 0120182440 Hearing Nos. 480-2013-00656X, 480-2013-00399X Agency Nos. 4F-913-0042-13, 4F-913-0011-12 DECISION Complainant filed two appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 7, 2018 and July 5, 2018, final orders concerning her equal employment opportunity (EEO) complaints 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. As the matters at issue in EEOC Appeal Nos. 0120182247 and 0120182440 involve related events, we exercise our discretion to consolidate these appeals for adjudication. See 29 C.F.R. § 1614.606. For the following reasons, the Commission VACATES the Agency’s final orders and REMANDS this matter for further consideration. 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. 0120182247, 0120182440 2 ISSUE PRESENTED The issue presented is whether the Administrative Judge properly granted the Agency’s motions for, and then issued, decisions without a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier, Q-01, at the Newhall-Lyons Station in Newhall, California. In April 2003, Complainant sustained on- the-job injuries and filed a workers’ compensation claim with the United States Department of Labor, Office of Workers’ Compensation Programs (OWCP). At such time, Complainant was diagnosed with bilateral carpal tunnel syndrome, bilateral shoulder impingement, and bilateral epicondylitis, which limited her ability to reach. When Complainant returned to work, management provided her with a limited-duty position. She remained on limited duty until March 2009. On June 13, 2011, the Agency offered Complainant a modified-duty assignment as a Sales and Service Associate. The modified-duty assignment included several medical restrictions limiting Complainant to no work above shoulder level; no heavy lifting, pushing and pulling; no repetitive forceful gripping; and allowed simple grasping, lifting, standing, and fine manipulation. The restrictions were based on the recommendation of a physician who had been selected by OWCP to examine Complainant for her OWCP claim.2 On June 20, 2011, Complainant accepted the modified-duty assignment offer “under protest” because the offered assignment did not address her restrictions on reaching at shoulder level, which her treating physician had imposed on March 17, 2011.3 ROI of EEOC Appeal No. 0120182247, pg. 00135. On June 27, 2011, Complainant’s immediate supervisor sent Complainant a letter indicating that Complainant had not provided documentation to support her request for additional accommodation. The letter instructed Complainant to provide sufficient medical documentation to substantiate her claimed inability to perform her duties. Complainant provided additional medical documentation on July 1, 2011, which reflected the following limitation: no more than intermittent reaching 33 percent of the time. See ROI of EEOC Appeal No. 0120182440, pg. 00210. 2 In his opinion dated February 23, 2011, the OWCP physician imposed the following medical restrictions: reaching above shoulder level one hour per day, six hours per day of repetitive use of arms, one hour per day of pushing/pulling, and lifting up to 25 pounds. See Complaint File (Vol. 1) of EEOC Appeal No. 0120182440, pg. 84. 3 The restrictions dated March 17, 2011, limited Complainant to: no heavy lifting, pushing, pulling, no repetitive work above shoulder level, no repetitive/forceful gripping, no repetitive reaching, and intermittent reaching at shoulder level being 25 percent to 35 percent spread throughout the work hours. See ROI of EEOC Appeal No. 0120182440, pg. 00206. 0120182247, 0120182440 3 Due to conflicting medical opinions between Complainant’s submitted medical documentation and the opinion of the OWCP physician, OWCP designated a referee physician to conduct an independent medical evaluation (IME). On August 2, 2011, the referee physician determined that Complainant had a permanent, unchanging restriction, which limited her to occasional, intermittent overhead lifting and carrying. The referee physician, however, concluded that no restriction on lifting, carrying, or reaching at chest level was required. ROI of EEOC Appeal No. 0120182247, pgs. 00357-71 Following receipt of the referee physician’s medical opinion, OWCP denied Complainant’s claim for additional workers’ compensation benefits on November 23, 2011. Complainant subsequently requested a hearing on her claim, which was convened on March 13, 2012. On June 11, 2012, OWCP issued a ruling adopting the findings of the referee physician and found that Complainant was physically able to perform the duties identified in the June 13, 2011, modified-duty assignment offer. See Complaint File (Vol.1) of EEOC Appeal No. 0120182440, pgs. 192-195. On August 24, 2012 and January 4, 2013, OWCP denied Complainant’s requests for reconsideration and upheld its November 23, 2011 determination.4 Following these decisions, the Resource Manager at the Van Nuys Post Office informed Complainant on January 25, 2013, that she should report for duty to perform the duties of the June 13, 2011, modified-duty assignment. See Complaint File of EEOC Appeal No. 0120182247, pg. 62. To prepare Complainant for her modified-duty assignment, the Postmaster of the Glendale Post Office directed her to undergo 40 hours of window training. In issuing the directive, the Postmaster acknowledged that on January 29, 2013, Complainant had submitted a medical note dated January 18, 2012, reiterating her reaching restrictions. However, the Postmaster advised Complainant that OWCP’s determination was conclusive as to Complainant’s restrictions. The Postmaster invited Complainant to submit additional medical documentation if Complainant felt that her condition had changed since the IME. Id. at 107-8. Complainant reported for duty on February 22, 2013. At such time, Complainant provided her immediate supervisor with a medical form dated February 19, 2013, from her treating physician. The medical form included restrictions limiting Complainant to intermittent reaching for a maximum of two hours and 45 minutes per day. Complainant’s supervisor, in response, advised Complainant that the August 2011 referee opinion would remain controlling because the February 2013 medical form did not sufficiently provide a basis for why Complainant’s medical restrictions had changed. When Complainant reported for duty on February 25, 2013, management again directed her to perform the duties of her June 13, 2011 modified assignment. 4 The record shows that Complainant subsequently submitted additional claims or appeals to OWCP. On July 3, 2013 and August 29, 2013, OWCP issued decisions upholding its prior determination that the June 13, 2011, assignment sufficiently accounted for Complainant’s medical restrictions. 0120182247, 0120182440 4 Complainant, in response, requested duties that conformed to the medical restrictions imposed by her treating physician. Complainant also submitted a medical note from a nurse to her supervisor indicating that she would be absent from work until March 1, 2013. Complainant requested leave to cover her absence. Complainant’s supervisor, however, informed Complainant that the medical note was insufficient because it did not provide an explanation of the nature of the illness or injury that prevented Complainant from working. Complainant left the facility before her tour ended for the day. On February 28, 2013, Complainant faxed a medical note from another physician informing management that she would be unable to work until March 15, 2013, due to work-related stress. At such time, Complainant requested leave for the period until March 15, 2013. On March 6, 2013, Complainant’s supervisor advised Complainant in writing that the submitted medical documentation was insufficient because the documentation did not indicate the date Complainant was examined and/or the date that her incapacitation began. The letter from Complainant’s supervisor indicated that Complainant’s absences beginning February 25, 2013, would be classified as AWOL. On March 12, 2013, Complainant submitted another medical note from her treating physician, which indicated that she had been temporarily totally disabled beginning February 25, 2013 and would need to be on leave until April 16, 2013, because she had worked beyond her restrictions for two days. On March 15, 2013, Complainant’s supervisor sent Complainant a letter advising her that the Agency had accepted her medical documentation and would grant her leave without pay status from March 12, 2013 to April 16, 2013. Complainant’s supervisor, however, informed Complainant that Complainant would still be considered AWOL for the period between February 25, 2013 to March 11, 2013, because those dates pre-dated the March 12, 2013 medical note. The letter also informed Complainant that she had no earned annual or sick leave available as of that date. In a note dated April 18, 2013, Complainant’s treating physician changed Complainant’s return date from April 16, 2013 to May 16, 2013. Complainant, however, was unable to return to work to perform the duties of her June 13, 2011 modified-duty assignment. First Formal Complaint and AJ’s Decision (Hearing No. 480-2013-00399X) On February 17, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (arm/shoulder injuries), age (over 40), and in reprisal for prior protected EEO activity arising under the ADEA and the Rehabilitation Act when: 1. Beginning June 22, 2011, the Agency: a. failed to provide her with a reasonable accommodation; b. suspended her; and c. failed to restore her to her position following her partial recovery from an injury. 0120182247, 0120182440 5 2. On June 22, 2011, and on several dates beginning January 17, 2012, she was marked absent without leave; 3. On August 31, 2011, the Agency refused to reimburse her for authorized travel expenses incurred May 31, 2011 through August 6, 2011; and 4. On April 12, 2012, the Agency issued her a Notice of Removal proposing to terminate her employment. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision without a hearing on May 18, 2018. For claims 1a, 1b, and 1c, the AJ found that these claims were premised on Complainant’s contention that the Agency failed to provide Complainant with reasonable accommodation. The AJ found, however, that the Agency did in fact provide Complainant with reasonable accommodation, albeit not the ones Complainant desired. Moreover, while the AJ acknowledged Complainant’s disagreement as to OWCP’s findings, the AJ concluded that such disagreement constituted a collateral attack on another administrative proceeding and failed to state a claim. Regarding claims 2 and 4, the AJ found that the Agency had legitimate, nondiscriminatory reasons for classifying Complainant as absent without leave (AWOL) and issuing her a Notice of Removal for her failure to report for duty after June 22, 2011, which Complainant failed to show were pretext for discrimination. As for claim 3, the AJ found no evidence that the Agency acted discriminatorily in refusing to reimburse Complainant for authorized travel expenses incurred from May 31, 2011 through August 6, 2011. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Second Formal Complaint and AJ’s Decision (Hearing No. 480-2013-00656X) On May 4, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (arm/shoulder injuries), age (over 40), and in reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when:5 5. On February 22 and 25, 2013, she was not provided with an effective reasonable accommodation; and 6. Beginning March 15, 2013, her request for leave was denied and she was charged absence without leave. 5 The AJ appears to have condensed the six claims listed in Complainant’s formal complaint into the two claims below. We note that Complainant has not challenged the AJ’s framing of the complaint. 0120182247, 0120182440 6 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 EEOC AJ. Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 7, 2014, motion for a decision without a hearing and issued a decision without a hearing on March 21, 2018. In issuing the decision, the AJ found that Complainant was a qualified individual with a disability. For claim 5, while the AJ acknowledged Complainant’s disagreement with OWCP’s findings as to the extent of Complainant’s medical restrictions, the AJ noted that Complainant had availed herself of numerous avenues of appeal with OWCP. The AJ concluded that Complainant’s disagreement with OWCP’s findings constituted a collateral attack on another administrative process and that Complainant failed to identify any other evidence showing that the Agency failed to provide her with reasonable accommodation. As for claim 6, the AJ found that the Agency had legitimate, nondiscriminatory reasons for denying Complainant’s request for leave and classifying her as AWOL; namely, Complainant’s lack of accrued leave and her failure to provide sufficient medical documentation to excuse her absences. The AJ concluded that Complainant failed to offer any evidence showing that the Agency’s articulated reasons were pretext for discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant timely appealed both decisions. CONTENTIONS ON APPEAL On appeal, Complainant contends, in part, that the AJ erred in finding that her claim constituted a collateral attack on the OWCP process. In this regard, Complainant asserts that her claim is not a collateral attack because discrimination is outside the purview of the OWCP process and even if the Commission were to find in her favor, that finding would have no bearing on the OWCP determination.6 In response, the Agency reiterates its contention that the accommodations provided to Complainant were consistent with the restrictions set by the referee physician. The Agency further maintains that it was bound by OWCP’s findings and that Complainant’s disagreement with the assessment of the referee physician fails to give rise to an actionable discrimination claim. ANALYSIS AND FINDINGS We must determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. 6 As we are remanding claims 1 and 5 for further consideration, we decline to address either party’s contentions regarding claims 2, 3, 4, and 6. 0120182247, 0120182440 7 The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Issuing a decision without holding a hearing is not appropriate for a case that can only be resolved by weighing conflicting evidence. If the non-moving party “has not had the opportunity to discover information that is essential to his opposition,” then a decision without a hearing is inappropriate. Anderson, 477 U.S. at 250. The AJ must enable the non-moving party to engage in sufficient discovery to respond to a motion for a decision without a hearing. After receiving an opposition to a motion for a decision without a hearing, an AJ may order discovery as necessary. 29 C.F.R. § 1614.109(g)(2). Upon careful review of the record, we find that the AJ erred when he concluded that there was no genuine issue of material fact as to claims 1 and 5. In finding no discrimination, the AJ found that Complainant’s claims regarding the denial of reasonable accommodation were yet another attempt to challenge OWCP’s unfavorable determination. The AJ concluded that Complainant could not use the EEO process to challenge OWCP’s determination, as such attempt constituted a collateral attack on another administrative process. Complainant’s primary contention on appeal is that the AJ erred in finding that her claim constituted a collateral attack on the OWCP process. She notes that discrimination is outside the purview of the OWCP process and even, if the Commission were to find in her favor, that finding would have no bearing on the OWCP determination. We agree. Generally, reliance on the OWCP process does not, by itself, discharge an agency’s obligations under the Rehabilitation Act. While OWCP regulations may require an agency to find jobs for disabled employees that are within their medical restrictions, the Commission’s regulations, in contrast, require agencies to provide reasonable accommodations to the known physical and mental limitations of a qualified individual with a disability absent undue hardship. 29 C.F.R. §§ 1630.2(o) and (p). The question as to whether an agency has satisfied its obligation to reasonably accommodate a disabled employee is a separate inquiry from any determination that OWCP might make about that employee. In Lux v. U.S. Postal Serv., EEOC Appeal No. 0120092392 (Dec. 22, 2010), the Commission emphasized that the fact that a complainant’s OWCP claim was approved does not alter the agency’s obligations under the Rehabilitation Act. 0120182247, 0120182440 8 The complainant in Lux sustained injuries in an on-the-job accident and filed a workers’ compensation claim with OWCP. When complainant returned to work, she was given a limited- duty assignment with modified duties reflecting her medical restrictions, but there was considerable disagreement as to the extent of her restrictions. In this regard, complainant’s treating physician opined that complainant could only work four hours a day, could not drive, and could not lift over 40 pounds. OWCP’s physician, however, opined that complainant could work eight hours a day with restrictions. To resolve the conflicting medical opinions, OWCP referred complainant to a referee physician who conducted an IME. That physician determined that complainant could work eight hours per day with restrictions of no lifting over 40 pounds and no driving beyond two hours. The agency’s modified job offer to complainant was consistent with the referee physician’s opinion, but contrary to the medical opinion from complainant’s treating physician. The complainant in Lux accepted the modified job offer under protest and subsequently filed an EEO complaint alleging that the agency discriminated against her on the basis of disability when she was given a direct order to sign a limited-duty job offer that violated the medical restrictions set forth by her primary treating physician. Over complainant’s objections, the AJ assigned to the case granted the agency’s motion for a decision without a hearing because the AJ determined that the claim constituted an impermissible collateral attack on the OWCP process.7 On appeal, the Commission held that summary judgment should not have been granted as a matter of law because the agency’s obligations under the Rehabilitation Act were distinct from its obligations in workers’ compensation claims. The Commission also held that conflicting evidence concerning complainant’s medical restrictions raised the issue of witness credibility, thereby necessitating the weighing of opposing evidence at a hearing. Here, while we acknowledge the AJ’s finding that Complainant’s disagreement as to the controlling medical opinion constitutes a collateral attack on the OWCP process, we find that the AJ erred in relying solely on OWCP’s determination without considering whether the Agency met its obligations under the Rehabilitation Act. As in Lux, supra, Complainant in this case submitted statements from her treating physician indicating a need for restrictions on reaching due to her medical conditions. These restrictions were more restrictive than the ones imposed by an OWCP physician. To resolve the conflicting medical opinions, OWCP referred Complainant to a referee physician, whom OWCP had hired to assess Complainant’s OWCP claim. As in Lux, supra, the referee physician sided with the OWCP physician’s determination that Complainant could perform the duties of the light duty assignment offered by the Agency.8 7 We note that the agency initially dismissed the claim on the same grounds as the AJ (collateral attack).However, in Lux v. U.S. Postal Service, EEOC Appeal No. 0120081629 (May 15, 2008), the Commission reversed the agency’s final decision dismissing the claim and directed the agency to process the claim. 8 While the referee physician’s opinion does not expressly mention the Agency’s modified-duty assignment offer, we note that the referee physician stated, “She [Complainant is] currently working at the Post Office front desk. She is capable of doing so.” 0120182247, 0120182440 9 The record reflects that the Agency relied on the opinion of OWCP’s referee physician, as well as OWCP’s decisions, to determine that Complainant could perform the duties listed in the Agency’s June 13, 2011 modified-duty assignment offer. After careful consideration, we conclude that Complainant’s disagreement as to the controlling medical opinion does not, by itself, constitute a collateral attack on the OWCP process, as the record reflects that Complainant is also alleging that the Agency, in relying on OWCP’s findings, failed to reasonably accommodate her medical restrictions. Given the evidence noted above and the totality of the record, we find that there is a genuine issue of material fact with respect to whether the Agency provided effective reasonable accommodation to Complainant. We emphasize that the key question in cases such as this is not whether a complainant can perform the duties of a modified-duty assignment, but rather whether he or she can perform the essential functions of his or her position with or without reasonable accommodation.9 We conclude that the AJ’s issuance of a decision without a hearing was improper because the conflicting medical evidence concerning Complainant’s medical restrictions raises the issue of witness credibility and necessitates the weighing of opposing evidence. See Lux, supra. CONCLUSION Therefore, after a careful review of the record, including Complainant’s arguments on appeal, the Agency’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency’s final orders and REMANDS this matter to the Agency in accordance with this decision and the Order below. 9 The discussion of “qualified” does not end at Complainant’s position of record. The term “qualified individual with a disability,” with respect to employment, is defined as a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the position held or desired. 29 C.F.R. § 1630.2(m). The term “position” is not limited to the position held by the employee, but also includes positions that the employee could have held as a result of reassignment. Therefore, in determining whether an employee is “qualified,” an agency must look beyond the position which the employee presently encumbers. Enforcement Guidance on Reasonable Accommodation; see also Interpretive Guidance on Title I of the Americans With Disabilities Act, Appendix, to 29 C.F.R. Part 1630.2(o). 0120182247, 0120182440 10 ORDER Within 30 days of the date this decision is issued, the Agency shall submit to the Hearings Unit of the EEOC Los Angeles District Office a request for a hearing along with a copy of the complaint files, and a copy of this decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. The assigned EEOC Administrative Judge shall hold a hearing on claims 1 and 5, and may hear claims 2, 3, and 4 if necessary to their disposition. The Administrative Judge shall then issue a new decision addressing all claims in accordance with 29 C.F.R. § 1614.109. Thereafter, the Agency shall issue a final action pursuant to 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. 0120182247, 0120182440 11 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 0120182247, 0120182440 12 “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. 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 August 6, 2020 Date