U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genny L.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 0120122795 Agency No. C11-07 DECISION On June 1, 2012, Complainant filed an appeal from the Agency's May 4, 2012, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency discriminated against Complainant on the bases of race and national origin when her supervisor notified her of an alleged language barrier that she was having with a contractor and instructed her to go through either her supervisor or a senior auditor for all future information requests from the contractor. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-511-112 at the Agency's DCAA Central Region, Arlington Branch Office, in San Antonio, Texas. Her permanent duty station was in Fort Worth, Texas, but she was on a temporary assignment to the San Antonio facility. On May 17, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Asian) and national origin (Taiwan) when, from January 2011 through February 28, 2011, her immediate supervisor notified her of a possible language barrier that she was having with a contractor. Specifically, Complainant alleged that: 1. starting in January 2011, she was instructed by her supervisor to go through either her immediate supervisor or a senior auditor for all future information requests from the contractor, due to a language barrier with the contractor; 2. on February 24, 2011, Complainant received an e-mail from her immediate supervisor informing her a second time that all interface and document requests with the contractor were to be made by either her supervisor or a senior auditor; and 3. on February 28, 2011, Complainant received another e-mail message from her immediate supervisor informing her that she had a language barrier with the contractor and that she was prohibited from interfacing with the contractor. In October 2010, Complainant was assigned to audit a specific contractor. In mid-January 2011, Complainant's first-level supervisor, a Supervisory Auditor (S1), instructed Complainant not to contact the contractor directly and to submit all requests for information through S1 or a senior auditor. Complainant stated in her affidavit that S1 told her that she must go through S1 or the senior auditor for audit interactions because the contractor had complained of a "language barrier." According to Complainant, S1 stated that she knew that English was not Complainant's first language. In a February 24, 2011, e-mail to an Analyst at the military command that requested the audit, Complainant stated that the audit could not be completed by February 25 and asked for an extension until March 25, 2011. The Analyst forwarded the e-mail to the Agency's Financial Liaison Advisor, who then contacted S1. In his e-mail to S1, the Financial Liaison Advisor stated that the current due date was March 8, not February 25, and asked whether the audit could be completed before March 25. He also stated that the command often complained to the Agency about last-minute requests for due-date extensions. S1 sent Complainant a February 24, 2011, e-mail stating, "As we previously discussed, all email correspondence to the requestor needs to be sent by me or [the senior auditor]." She noted that Complainant's e-mail had contained an incorrect due date and that March 8 was the correct date. S1 also noted that this was "a very sensitive audit," that "we really need to be careful with what we say and how we say it," and that "this is why I want a senior auditor and/or supervisor involved in all" e-mails with the command. In a February 28, 2011, e-mail to S1, Complainant stated that the "language barrier" reference offended her. She expressed concern about the phrase being "overused, especially to non-American[s]," argued that a language barrier can occur with people of different races "because of diverse cultures and backgrounds," and asserted that "any one of you have had similar situations all the time that others do not understand your saying or meaning over subjects." Complainant also asserted that she and the contractor had understood each other well during visits and that the contractor's comment was an attempt to prevent her from obtaining sensitive data. In addition, although Complainant recalled that S1 had instructed her to have a senior auditor coordinate conference calls and accompany her to the contractor's site, she did not recall being told not to contact the military command. Complainant forwarded a December 17, 2010, e-mail that she sent to the military-command analyst and others regarding the status of the audit. S1 e-mailed a reply to Complainant on the same day. In her affidavit, S1 stated that she "blind copied" the e-mail to the Branch Manager, two Supervisory Auditors, and a Senior Auditor. In the e-mail, S1 stated: I did say 'language barrier' during our conversation, but in the context that the [contractor] had indicated to me that they did not understand what you were asking for during your meetings and phone conversations. It may or may not have been true, but since we are infrequently asked to perform audits for [the command], I chose to have either a senior auditor or myself involved in all correspondence, teleconferences, and contact with the contractor. This has been my course of action in several cases involving complex audits and/or new auditors. S1 also stated that she had believed that Complainant had more experience than was the case. She asserted, "A short period of time at one large contractor does not prepare an auditor for working a difficult mobile contractor. So I apologize for not recognizing that fact sooner." S1 denied that Complainant was being censored or oppressed. She asserted that, just as "there is no 'I' in team, . . . there is no 'race,' 'sex,' 'religion,' or 'age' consideration in team." In addition, S1 stated: We each have limitations and we need to recognize them and capitalize on the strengths of each member of the team. I am envious of people who can fluently speak two languages. I cannot. And you are correct, we are not always clear in our communication, but we each learn with experience." S1 asserted that Complainant had "been treated like one of the team," that "[n]one of the auditors [has] free reign," and that supervisors and managers were "required to be involved in all audits." In a February 28, 2011, response, Complainant argued that S1 took the contractor's side by instructing Complainant to step aside. She asserted that the alleged "language barrier" was not the reason that the contractor refused to provide data in a timely manner. S1 arranged a meeting with Complainant, in the presence of another Supervisory Auditor, on March 1, 2011. In her affidavit, S1 stated that she requested the meeting because she "found [herself] being accused of making decisions based on [Complainant's] race." S1 also stated, "I apologized if I had offended her by expressing what the contractor had said to me, but that I thought she should know what they had said in order to prepare her for any issues she might encounter. I explained to her that this is my standard practice." In her rebuttal statement, Complainant asserted that S1 "ambushed" her in the meeting, told her that S1 had not done anything wrong, and "stated she would not apologize to me for anything she did not do." In her affidavit, Complainant stated that she had "faced and solved lots of road blocks" in obtaining records from the contractor. She asserted that auditors anticipate resistance from contractors and that she was not the only one who was accused by contractors of making requests that could not be understood. Complainant also asserted that she told S1 that the contractor had "made the same comment" to S1 about a request that S1 had made. She alleged that she was the only auditor who was prohibited from interacting directly with a contractor. In response to the EEO Investigator's question about why she did not follow S1's directive, Complainant argued that there were no regulations or policies prohibiting her from interacting with contractors. She asserted that auditors must act independently and stated, "I was doing what I was supposed to do on the job; thus, I refused to honor the directive." Complainant argued that S1 "did not evaluate all the necessary factors" but, instead, "simply agreed with the contractor's statement" that a language barrier was interfering with Complainant's job performance. She asserted that S1 did not treat her the same way that S1 treated other auditors. S1 stated in her affidavit that she did not know Complainant's race and was not aware of Complainant's national origin. She also stated that she "received a phone call from the contractor indicating that the audit effort was not being supported because of a 'language barrier' with the auditor. The contractor indicated that they did not understand her data requests." According to S1, she and the "FAO Manager" discussed the matter and decided "to involve a senior auditor and supervisor in this highly complex and sensitive audit." S1 stated that she conveyed the contractor's comments to Complainant during the mid-January 2011 meeting. In addition, she discussed Complainant's "experience level and outlined the need to involve a senior auditor or supervisor in the audit due to the difficult nature of the contractor, our lack of audit experience with the contractor, and the sensitivity of the audit." S1 stated that she instructed Complainant to involve a supervisor or senior auditor "in all correspondence with the command requesting the audit." In addition, S1 quoted portions of her February 24 and 28, 2011, e-mails and asserted that the February 24 e-mail reiterated what she told Complainant during the mid-January 2011 meeting. S1 denied that she told Complainant to coordinate all interactions with contractors through S1 or a senior auditor. In that regard, S1 noted that Complainant performed only one audit in San Antonio and that S1 was not involved in the audits that Complainant performed through her home office in Fort Worth. In response to the EEO Investigator's request that she explain her actions, S1 stated that she instructed Complainant to communicate with the contractor involved in the audit at issue "to ensure that the contractor was unable to use not understanding [Complainant's] requests as an excuse for failure to provide the necessary data/support for the audit. Having a senior auditor or supervisor involved ensured that the contractor understood the regulations, our audit requirements, and consequences of not cooperating." In addition, S1 wanted "to ensure that [she] knew what was being communicated to the requestor and that no opinions or audit conclusions were being discussed prior to management review." S1 stated that she had required other auditors who were relatively new to the Agency to involve a supervisor or senior auditor in meetings and correspondence concerning sensitive audits. She named four auditors who, according to S1, were required to have a supervisor or senior auditor review e-mails to a contractor, attend meetings and teleconferences with a contractor, or coordinate with a requester. S1 stated that she did not know the named individuals' races and national origins. Finally, S1 asserted that she learned on January 18, 2011, that Complainant was in her probationary period. S1 argued that, after learning of Complainant's "limited experience and a potential issue with the contractor, [she] had an obligation to take appropriate action." In her rebuttal statement, Complainant asserted that her probationary period had almost ended and "had nothing to do with the assignment and [her] race." She also asserted that she had not had any previous "language barrier" problems with contractors. Complainant argued that the phrase "language barrier" is inappropriate and should not be used by supervisors. Complainant also argued that, although supervisors review new auditors' requests, there has never been a requirement that an auditor send all correspondence through a supervisor or senior auditor because of a "language barrier." In the final agency decision,3 the Agency found that it did not discriminate against Complainant on the basis of race or national origin. Assuming that Complainant established prima facie cases of discrimination, the Agency found that it had articulated legitimate, nondiscriminatory reasons for its actions. The Agency noted that S1 stated that the contractor complained of a language barrier and that she and her manager decided to involve a senior auditor or supervisor because it was a sensitive and complex audit and the contractor had said that it did not understand Complainant's data requests. The Agency also noted that S1 stated that her February 24, 2011, e-mail reiterated the instruction to send all correspondence to her and the senior auditor and that Complainant's February 24, 2011, e-mail to an Agency employee had contained incorrect dates. With respect to S1's February 28, 2011, e-mail, the Agency stated that S1 testified that she wanted to ensure that the contractor could not use an inability to understand Complainant as an excuse for not providing necessary data. S1 believed that the involvement of a supervisor or senior auditor would ensure that the contractor understood the consequences of not cooperating. The Agency concluded that Complainant did not establish that the articulated reasons were a pretext for discrimination. In that regard, the Agency stated that Complainant's assertions that she should not have been prohibited from interacting with the contractor did not refute the articulated reasons. The Agency, which quoted five sentences from Complainant's December 2010 and February 2011 e-mails, stated that the e-mails "permit the inference that a contractor could be confused, not because of [Complainant's] race or national origin, but rather because of the nature of the writing." In addition, the Agency noted that, "as the facts unfolded, [S1] learned that the Complainant was still in her probationary period and lacked the requisite experience to handle a sensitive audit with a difficult contractor." The Agency found that S1's actions were based on a desire to complete a sensitive audit successfully rather than on Complainant's race or national origin. CONTENTIONS ON APPEAL On appeal, Complainant argues that S1 gave inconsistent reasons for prohibiting Complainant from having direct interactions with the contractor. In that regard, Complainant cites S1's references to a language barrier, to the sensitivity of the audit, to Complainant's probationary period, to the desire to prevent the contractor from using a lack of understanding as an excuse for not producing data, and to the need to ensure that the contractor understood the consequences of not cooperating. Complainant also argues that management should have been aware of the sensitivity of the audit and the difficult nature of the auditor when it chose her for the audit. In addition, Complainant asserts that the contractor claimed that S1 also had a "language barrier." She argues that, if concerns about language skills motivated the Agency's actions, then management should have prohibited S1 from interacting with the auditor also. Complainant further asserts that she was under emotional distress when she wrote the e-mails from which the Agency quotes and that the e-mails do not accurately reflect her language skills. The Agency raises no arguments on appeal. 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 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Under Commission guidelines, national-origin discrimination includes the denial of an equal employment opportunity "because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1. Thus, for example, the Commission has determined that English-fluency selection requirements may be discriminatory based on national origin. Id. § 1606.6(b)(1). Although "[e]mployers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics . . . linguistic characteristics are closely associated with national origin. Therefore, employers should ensure that the business reason for reliance on a linguistic characteristic justifies any burdens placed on individuals because of their national origin." EEOC Compliance Manual Section 13, "National Origin Discrimination," EEOC Notice 915.003 § 13-V (Dec. 2, 2002) (EEOC Compliance Manual on National Origin Discrimination). "Generally, a fluency requirement is permissible only if required for the effective performance of the position for which it is imposed." Id. § 13-V.B.1. A "lack of proficiency in English may interfere with job performance in some circumstances but not in others," and an "employer should not require a greater degree of fluency than is necessary for the relevant position." Id. In this case, S1 stated in her affidavit that she and the FAO manager decided to involve a supervisor and a senior auditor in the audit because the contractor complained about a "language barrier" and an inability to understand Complainant's data requests. She stated in her February 28, 2011, e-mail that the contractor claimed not to understand what Complainant was requesting and that this "may or may not have been true." S1's statements, which establish that the Agency took the actions at issue because of Complainant's linguistic characteristics, constitute direct evidence that Complainant's national origin motivated the Agency's actions. See Renwick v. Dep't of the Navy, EEOC Appeal No. 0120112665 (Oct. 20, 2011) (supervisor's statement that complainant did not speak English well enough to be transferred was direct evidence that supervisor's denial of complainant's request for a transfer was motivated by national origin or race); Min v. Dep't of Veterans Affairs, EEOC Appeal No. 01995966 (Jan. 8, 2001) (comments regarding complainant's English language proficiency and accent were direct evidence of discriminatory motivation). There is no evidence that the Agency attempted to ensure that the contractor's complaints about Complainant's language skills justified prohibiting Complainant from interacting directly with the contractor and requiring her to communicate through a supervisor or senior auditor. On the contrary, S1's e-mail statement (which she quoted in her affidavit) that the contractor's claim "may or may not have been true" establishes that the Agency imposed these restrictions on Complainant without taking any steps to determine whether Complainant's communications with the contractor in fact were not understandable. Moreover, the evidence of record does not establish that there existed a "language barrier" that justified the Agency's actions. The Agency has not identified any specific data requests or other communications that the contractor claimed it could not understand. Similarly, S1 has not identified any specific problems with Complainant's language skills and has not claimed that she could not understand Complainant. There is no evidence that anyone, in fact, could not understand Complainant. The Agency's assertion, in its final decision, that e-mails in the record "permit the inference that a contractor could be confused . . . because of the nature of the writing" is unavailing. Drawing an inference from e-mails, all but one of which were written after the discrimination at issue here, that someone "could" be confused does not justify the Agency's actions. The record contains no evidence that Complainant sent any unintelligible e-mails to the contractor. Further, there is no evidence that the recipients of the e-mails in the record had any trouble understanding them. We note, for example, that S1's lengthy reply to Complainant's February 28, 2011, e-mail demonstrates that S1 readily understood Complainant. In addition, having reviewed the e-mails, we find them understandable. S1 has asserted that she learned on January 18, 2011, that Complainant was in her probationary period and that she took action because of Complainant's "limited experience and a potential issue with the contractor." It is not clear whether S1 learned of Complainant's probationary status before or after she instructed Complainant to communicate with the contractor through a supervisor or senior auditor. To the extent that S1 learned of Complainant's probationary status after she issued the instruction, the information constitutes after-acquired evidence that does not negate the Agency's liability for having engaged in unlawfully discriminatory conduct. See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995) (holding that an employee discharged in violation of the ADEA is entitled to relief even if the employer subsequently discovers evidence of wrongdoing that would have led to the employee's termination on legitimate grounds); see also EEOC Enforcement Guidance on After-Acquired Evidence and McKennon v. Nashville Banner Publishing Co., EEOC Notice No. 915.002 (Dec. 14, 1995) (where employer proves that it would have taken the same or harsher adverse action had it known of employee misconduct, complainant will still be entitled to relief, but that relief may be subject to limitation). Further, to the extent that S1 learned of Complainant's probationary status prior to issuing the instruction, the information likewise does not relieve the Agency of liability for its actions. At most, the evidence would support a mixed-motives analysis. Mixed-motives analysis applies to cases in which there is a finding that discrimination was one of multiple motivating factors for an employment action, i.e., in which the agency acted on the bases of both lawful and unlawful reasons. See EEOC Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, EEOC Notice No. 915.002 § III.B.2 (July 14, 1992), as modified EEOC Notice No. 915.002 (Jan. 16, 2009). Under Title VII, a violation is established "when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Once a complainant demonstrates that discrimination was a motivating factor in the agency's action, it is the agency's burden to demonstrate that it would have taken the same action even if it had not considered the discriminatory factor. If the agency makes this demonstration, the complainant is not entitled to personal relief such as damages, reinstatement, hiring, promotion, and back pay but may be entitled to declaratory relief, injunctive relief, attorney's fees, and costs. See DeArmas v. Dep't of the Treasury, EEOC Appeal No. 0720060085 (July 26, 2007); Walker v. Soc. Sec. Admin., EEOC Request No. 05980504 (Apr. 8, 1999). Assuming, without so finding, that Complainant's experience level was a factor in the Agency's decision to require her to communicate with the contractor through a supervisor or senior auditor, we find that the Agency has not shown that it would have taken the same action absent consideration of the discriminatory factor. S1 asserted that she required four auditors, whose races and national origins were not disclosed, to have a supervisor or senior auditor review emails, attend meetings, or coordinate with a requester. There is no evidence, however, regarding the auditors' experience levels or the circumstances under which they were required to communicate through a supervisor or senior auditor. Further, there is no evidence regarding the extent to which the Agency did not impose such restrictions on auditors whose level of experience resembled Complainant's. The Agency has not established that, absent the contractor's unsubstantiated complaint about an alleged "language barrier," it would have imposed the same restrictions on Complainant. We find that the Agency discriminated against Complainant on the basis of national origin when, after the contractor complained of a "language barrier," it required her to communicate with the contractor through a supervisor or senior auditor. We further find that Complainant is entitled to full relief. Having found that the Agency discriminated against Complainant on the basis of national origin and is entitled to full relief, we need not determine whether the Agency discriminated against Complainant on the basis of race. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency discriminated against Complainant on the basis of national origin when it required her to communicate with the contractor through a supervisor or senior auditor. We therefore REVERSE the Agency's final decision and REMAND the complaint for further processing in accordance with our Order below. ORDER The Agency is ordered to take the following remedial action: 1. Within sixty (60) days of the date this decision becomes final, the Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the discriminatory requirement that she communicate with the contractor through a supervisor or senior auditor. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate in the Agency's efforts to compute the amount of compensatory damages she may be entitled to as a result of the discrimination, and shall provide all relevant information requested by the Agency. The Agency shall issue a new final agency decision addressing the issue of compensatory damages within ninety (90) days of the date this decision becomes final. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below. 2. Within ninety (90) days of the date this decision becomes final, the Agency shall provide eight (8) hours of EEO training to the involved management officials regarding their responsibilities under EEO laws, with a special emphasis on Title VII and national-origin discrimination. 3. The Agency shall consider taking appropriate disciplinary action against the responsible management 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 to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 4. The Agency shall post a notice of this finding in accordance with the paragraph below. 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 all supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its DCAA Central Region, Arlington Branch Office, in San Antonio, Texas, 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)), she 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's signature Carlton M. Hadden, Director Office of Federal Operations Feb. 23, 2016 __________________ Date 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. 2 At the time of her January 22, 2012, affidavit, Complainant was a Senior Auditor, GS-511-12. 3 It is not clear from the record whether Complainant requested a final decision pursuant to 29 C.F.R. § 1614.110 or did not reply to a notice of a right to request a hearing. Complainant has not contested the Agency's issuance of the final decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120122795 13 0120122795