U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * BRYAN T., COMPLAINANT, v. JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (TRANSPORTATION SECURITY ADMINISTRATION), AGENCY. Appeal No. 0120122110 Agency No. HSTSA002012013 March 18, 2016 DECISION On May 9, 2013, Complainant timely filed an appeal from the Agency's March 8, 2013, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED Whether Complainant proved by a preponderance of the evidence that he was not selected for two positions and subjected to a hostile work environment because of his age and national origin. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Master Behavior Detection Officer (MBDO) at the Chicago O'Hare International Airport in Chicago, Illinois. On December 10, 2009, Complainant contacted an EEO Counselor and on June 28, 2010, he filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (60) when: 1. On December 20, 2007, his supervisor (S1) stated that Complainant was the oldest Behavioral Detection Officer (BDO) in the program; 2. On unspecified dates since 2007, S1 subjected him to constant jokes and harassment regarding his age at BDO briefings; 3. On January 8, 2009, he learned that he was not promoted to Expert BDO (EBDO); 4. On October 29, 2009, he learned that he again was not promoted to EBDO. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 11, 2011, Complainant requested that the Agency issue an immediate final decision (FAD). However, on July 16, 2012, the Agency determined that a supplementary investigation was needed because the investigator failed to investigate Issue 3. The Agency remanded the complaint and completed the supplemental investigation on November 2, 2011. On November 6, 2011, Complainant amended his formal complaint to include national origin discrimination (Irish). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on March 8, 2013. In its decision, the Agency concluded that Complainant failed to make timely contact with an EEO Counselor with respect to Issue 3, but analyzed the claim as part of Complainant's hostile work environment claim. In its decision, the Agency also concluded that Complainant failed to establish he was subjected to a hostile work environment because he failed to prove that the comments were either severe or pervasive. However, the Agency conceded that several witnesses corroborated Complainant's claim that S1 made references to Complainant's age during a meeting on August 20, 2009. The Agency further conceded that it disciplined S1 for a later, unrelated incident on July 27, 2010. The Agency found insufficient evidence of a hostile work environment because it determined that Complainant was not upset about the August 20, 2009 incident. With respect to the January 8, 2009 nonselection, the Agency found Complainant was not selected because he did not answer all of the questions posed to him during the interview, and he did not receive the highest score. The Agency found insufficient evidence that Complainant was not selected due to his age. With respect to the October 2009 nonselection, the Agency concluded that management articulated legitimate nondiscriminatory reasons for not selecting Complainant. Specifically, the Agency found that during the selection process, BDO Managers rated their direct reports with respect to 17 MBDO competencies and technical skills. After meeting, the Managers compiled a list of 21 candidates, including Complainant, who scored a perfect score of 51 points. Then, the Screening of Passengers by Observation Techniques (SPOT) Transportation Security Manager ("SPOT - TSM") and another SPOT TSM ("SPOT-TSM2") recommended two candidates from each shift to go to the Selecting Official. SPOT-TSM explained that he picked two people who had demonstrated exceptional or superior performance in at least one or more areas outlined in the TSA Competency Matric Catalog. Because Complainant did not demonstrate exceptional or superior performance in these areas, he was not selected for the position. The Agency further concluded that Complainant failed to prove the Agency's reasons for this selection were a pretext for age discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant addressed the FAD's deficiencies. Specifically, he notes that he has been subjected to a continuous barrage of offensive comments by his supervisor from December 2007 until November 2009. Complainant asserts that he contacted the Agency's EEO Office on many occasions, but it did not respond until February 2010. Complainant asserts that multiple witnesses corroborated his claims that he was subjected to public ridicule on the bases of his age and national origin, including calling him, "old, ugly, Irish guy," "the oldest BDO in the program," and other ageist comments on an almost daily basis. With respect to the January and October 2009 nonselections, Complainant claims that the Agency's reasons for choosing the selectees were entirely subjective and vague and asserts that the Agency's supplemental investigation was incomplete. In response, the Agency maintains it articulated legitimate nondiscriminatory reasons for not selecting Complainant for the October 2009 selection. The Agency further maintains that Complainant did not timely contact an EEO Counselor with respect to the January 2009 selection. Furthermore, it argued that the nonselections cannot form the basis for a hostile work environment claim because they are discrete acts unaccompanied by any abusive conduct or language by the selecting officials. The Agency contends we should not consider new evidence that Complainant submitted on appeal regarding 17 witnesses to the name calling, as he failed to explain why the documentation was previously unavailable. The Agency also maintains that the comments described by witnesses were neither severe nor pervasive enough to constitute a hostile work environment. ANALYSIS AND FINDINGS Timeliness As an initial matter, we will address the Agency's contention that Complainant failed to make timely contact with an EEO Counselor with respect to the January 2009 nonselection (Issue 3). As a discrete act, the Agency analyzed the claim as part of Complainant's hostile work environment claim, but not as an individual claim of disparate treatment. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. The record reveals Complainant contacted an EEO Counselor as early as July 3, 2008, but received no response. He again attempted to make EEO Counselor Contact on September 6, 2008, February 6, 2009, July 31, 2009, October 20, 2009 and December 10, 2009, but the Agency did not respond. See ROI at Exhibit F2. The record reveals Complainant learned of his nonselection on January 8, 2009. The Agency offers no explanation for its failure to respond to his repeated request for an EEO Counselor. In light of Complainant's repeated, unsuccessful attempts at contacting an EEO Counselor, we find Complainant met his prescribed time frames with respect to all issues in his complaint, including the January 2009 nonselection. 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 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"). Harassment The Commission notes that harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC Enforcement Guidance on Harris v. Forklift Sys., Inc. at 3, 9 (March 8, 1994). In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: "conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 22 (1993). To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class: (2) he 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 his statutorily protected class; (4) the harassment affected a term or condition of employment and or had the purpose or effect of unreasonably interfering with the work environment and or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance at 6. Complainant's claims he was subjected to a hostile work environment due to unwelcome comments from S1, as well as when he was not selected for Expert BDO positions in January 2009 and October 2009. Complainant asserts that from 2007-2009, S1 made derogatory comments about his age and national origin in public briefings. Specifically, he maintains that S1 referred to him as "that old guy," and asked him "can you find your way there?" or "do you remember that?" Complainant also recounts that in September 2009, he was summoned to the Deputy Assistant Federal Security Director's (DAFSD) office after a co-worker complained about a comment S1 made on or about August 20, 2009. Specifically, the undisputed record reveals S1 stated in the presence of Complainant and the co-worker: The resident Irishman would be working with the split shift. Maybe it was the smaller of the Irishmen, or the larger of the two. One of you is much better looking than the other; is it age before beauty or beauty before age?" and "I can't even tell which guy is the older of the two." Complainant participated in the investigation and confirmed that S1 made the comments alleged by the coworker. Complainant asserts that the DAFSD told Complainant that the comments would stop, but they did not stop. After participating in the investigation regarding the August 2009 comment, Complainant alleges that S1's comments increased and he would often refer to Complainant and say, "was he able to stay awake," "did he find the checkpoint," "you're working with the old guy," "help the old guy," "the old Irish man" and other comments similar in nature. Complainant's supervisor denied making ageist comments, but could not recall whether he had asked Complainant if he could "find his way" or "remember" things. ROI at Exhibit F-3. Several witnesses corroborated Complainant's claims of harassment. One witness averred that he heard S1 refer to Complainant as an "older guy" in August 2009, to which Complainant objected. See Exhibit F-7. Another witness averred that in 2010, she heard S1 state: I want a token Irishman. Oh wait, I have two. I'll take the older one. Wait-they're the same age. I'll take the heavier one." Exhibit F-9. Four other affidavits from BDOs in the record corroborate that S1 made derogatory statements about Complainant's age from 2007-2009, with some frequency. Witnesses stated these comments continued approximately "once or twice weekly," and "almost daily." See Exhibit F-16 -- Exhibit F-20. On appeal, Complainant submits a statement, signed by 17 people who indicate they witnessed S1 repeatedly make remarks about Complainant's age and heritage. See Complainant's Statement on Appeal, Exhibit 10. On appeal, the Agency asserts that Complainant was not offended by the comments. Specifically, it points out that the record reveals that Complainant informed the DAFSD that he took the comments about his national origin "in stride." However, Complainant denies indicating the ageist comments were harmless. The Agency also argues that we should not consider the signed statement from 17 people who allegedly witnessed the harassment because it is new evidence submitted on appeal which was previously available. However, we find that consideration of these signatures is appropriate in this case because Complainant alleges that the investigator failed to interview all of his witnesses. Accordingly, we find this evidence was not previously available, and should be considered. See Encinas v. United States Postal Service, EEOC Appeal No. 01A54665 (December 5, 2005)(submission of new evidence on appeal appropriate when Agency's investigation was incomplete). After a review of the record, and in light of the evidence that Complainant repeatedly contacted the Agency's EEO Office to complain, we are persuaded that S1 subjected Complainant to harassment in the form of unwelcome conduct because of his national origin and age. We further find that this conduct created or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. An employer is subject to vicarious liability for harassment when it is "created by a supervisor with immediate (or successively higher) authority over the employee." Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). When the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The Agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any harassing behavior; and (b) that appellant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the Agency or to avoid harm otherwise. Burlington Industries, Inc., v. Ellerth, 118 S.Ct. at 2270; Faragher v. City of Boca Raton, 118 S.Ct. at 2293; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This defense is not available when the harassment results in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) being taken against the employee. After a review of the record, we find the Agency failed to establish its affirmative defense. The record reveals Complainant repeatedly contacted an EEO Counselor in order to complain about the harassment. Furthermore, the record supports Complainant's claim that he complained to the DAFSD regarding S1's conduct. Although S1 was issued a Letter of Reprimand months after the incident, the preponderance of the evidence in the record reveals the hostility did not cease; rather, it increased in frequency. Accordingly, we find the Agency failed to exercise reasonable care to prevent and correct the harassing behavior, and is liable for S1's harassment. January 2009 and October 2009 EBDO Nonselections We now turn our analysis to Complainant's claim that he was repeatedly denied promotion due to his age and national origin. Complainant alleged that he was not selected for two Expert Behavior Detection Officer (G-Band) positions due to his age and national origin, and that the pervasive comments described above affected his promotion potential. He asserts that younger BDOs with less experience were selected for the positions. S1 described the selection process for the January 2009 EBDO position. He averred that Managers completed a questionnaire regarding subjective and objective competencies, and then interviewed the candidates. The candidates were ranked, and the highest rated were presented to the Selecting Official, the Assistant Federal Security Director (AFSD). The Agency asserts that Complainant was not selected for the EBDO position because he did not perform as well on the interview portion of the selection process. Documentation in the record reveals Complainant scored a total of 41 points, and those chosen for the position scored 51 points. However, Complainant averred that when he finished his interview, the interviewers told him he performed "perfectly." ROI at Exhibit F1. The record does not include affidavits from the interviewers. Furthermore, in his affidavit, S1 averred that he did not recommend Complainant to the Selecting Official because his score was not one of the highest. The Selecting Official could not recall anything about the selection process. With respect to the October 2009 nonselection, Complainant claimed that he was not selected due to continued age and national origin discrimination, and that younger, (aged 22, 27, 34) less experienced BDOs were promoted. The Selecting Official for the October 2009 position, who served as the Assistant Federal Security Director, Screening (AFSD-Screening), averred that the selection process initially involved Managers measuring 17 BDO competencies and/or technical skills. Among the applicants, 21 received perfect scores, so Managers met again to discuss and evaluate who demonstrated outstanding performance in five areas: leadership, coaching and mentoring, independent and critical thinking, problem solving and technical credibility. The DAFSD then asked a the SPOT-TSM from the day shift and a another SPOT-TSM (SPOT-TSM2) from the night shift to further evaluate those who received perfect scores and submit a list of recommended candidates to the Selecting Official. The SPOT-TSM was the individual assigned to evaluate the candidates from Complainant's shift. According to his testimony, after doing so, he, the SPOT-TSM2, and the DAFSD agreed on a list of four people who had demonstrated ""superior and exceptional performance" in at least one or more areas as outlined in the TSA Competency Catalog.2 Specifically, they examined those who demonstrated incrementally superior performance in Coaching/Mentoring, Command Presence, Communication, Conscientiousness and Reliability, Independent/Critical Thinking, Leadership, Problem Solving, Professionalism, Resilience and Technical Credibility. The SPOT-TSM averred that he did not recommend Complainant because he did not have a high or perfect score, and did not demonstrate superior or exceptional performance in the additional performance attribute areas. Exhibit F-5. He further adds that Complainant did not demonstrate superior or exceptional performance in any areas of the Competency Catalog. In disparate treatment cases such as the instant appeal, where there is an absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000) (applying McDonnell Douglas analysis to ADEA claim). Under this analytic framework, Complainant must first establish a prima facie case of unlawful age discrimination--that complainant was a member of a protected class of individuals under the ADEA; that he or she applied for and was otherwise qualified for the position; that despite his or her qualifications complainant was rejected; and that the agency subsequently selected someone for the position who was substantially younger than complainant. Reeves, 530 U.S. at 142; O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13 (1996); McDonnell Douglas, 411 U.S. at 802. 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 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. See Reeves, 530 U.S. at 142; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). After a review of the record, we find the Agency failed to meet its burden of articulating a legitimate nondiscriminatory reason for not selecting Complainant for either position. To the extent that it did articulate vague, subjective reasons, we find Complainant established those reasons were a pretext for discrimination on the bases of his age and national origin. The record is incomplete with respect to the January 2009 selection, as there are no affidavits from the interviewers. The Selecting Official for the January 2009 selection cannot recall anything about the selection process, and Complainant claims this is so because S1 was ultimately responsible for the selection. There is some support for this, as S1 averred that he "did not recommend" Complainant for the position; which is in contrast to other testimony whereinhe stated the Selecting Official did not select Complainant because he did not have the highest score after his interview. See ROI at Exhibit. F-3. We find the preponderance of the evidence supports Complainant's allegation that S1 did influence this selection process, which was tainted by his discriminatory bias against Complainant's age and national origin described above. The Agency's reasons for the October 2009 nonselection are also suspect. After all MBDOs received perfect scores for the initial evaluation, the SPOT-TSM, who did not supervise Complainant, recommended two individuals from the Complainant's shift to the Selecting Official. He averred that he did not select Complainant because he did not have a high or perfect score, but the record reveals he had a perfect score. Exhibit F-41. Furthermore, the SPOT-TSM provided no specific evidence supporting his opinion that Complainant did not perform in a superior manner; which is in contrast to his performance appraisals, which show he met or exceeded his performance standards. See ROI at Ex. F-25. Ultimately, we find the Agency's failure to articulate specific reasons for Complainant's nonselection, coupled by the pervasive and offensive name calling which existed at this facility proves more likely than not that Complainant subjected to discrimination on the bases of his age and national origin when he was not selected for either position. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's decision and REMAND the matter in accordance with the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action: I. The Agency shall immediately promote Complainant to the Expert Behavioral Detection Officer, G-Band, retroactive to January 8, 2009. II. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. The Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled " "Implementation of the Commission's Decision." III. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall conduct a supplementary investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages. IV. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall provide 16 hours of training to S1, the SPOT-TSM and both Selecting Officials on the laws prohibiting discrimination, paying particular attention to age and national origin discrimination. V. The Agency shall consider taking disciplinary action against S1, the SPOT-TSM, and both Selecting Officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides not to impose discipline, it shall set forth the reason(s) for its decision not to impose discipline. If these individuals have left the Agency's employ, the Agency shall furnish documentation of their departure dates. VI. The Agency shall pay attorney fees in accordance with the paragraph below. VII. The Agency shall post a notice in accordance with the paragraph below. VIII. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of backpay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Chicago O'Hare International Airport facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, P.O. Box 77960, Washington, DC 20013. 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 (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. "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 Director Office of Federal Operations 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. Footnotes 2 The DAFSD denies any involvement in the October 2009 selection process.