U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * TRINA C., COMPLAINANT, v. MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY. Appeal No. 0120142617 Hearing No. 532-2010-00193X Agency No. 1C-443-0018-10 September 13, 2016 DECISION On July 14, 2014, Complainant filed an appeal from the Agency's June 16, 2014, final order 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 deems the appeal timely and accepts it for review. For the following reasons, the Commission REVERSES the Agency's final order. ISSUES PRESENTED Whether the Administrative Judge (AJ) assigned to the case abused his discretion by making a credibility determination regarding a witness who did not appear at the hearing and basing his no-discrimination findings and conclusions upon that determination; Whether the Manager of Distribution Operations (MDO) grabbed Complainant around the waist and kissed her on the neck on February 11, 2010; and Whether the MDO's act constituted sexual harassment of Complainant in violation of Title VII. BACKGROUND Complainant worked as a Clerk on the night shift at the Agency's Processing and Distribution Center in Akron, Ohio. On June 1, 2010, she filed an EEO complaint in which she alleged that the MDO sexually harassed her in connection with an incident that occurred on February 11, 2010. She identified several individuals as witnesses, including: her partner on the sorting machine to which she was assigned (Partner); two Coworkers (Coworker-1 and Coworker-2); her Union Representative; the Union President; and an Acting 204B Supervisor (204B). IR 59-60. In accordance with the procedures set forth in the Agency's anti-harassment policy statement, the Human Resources Manager, upon being notified of the alleged incident, dispatched two Fact-Finders to take statements and prepare a report. IR 93-94. The Fact-Finders received written statements from Complainant's Distribution Operations Supervisor (DOS-1) another supervisor in charge of the sorters (DOS-2); one of her previous supervisors (DOS-3); Coworker-1; the 204B; her Partner; and the MDO. Investigative Report (IR) 103-48. The Human Resources Manager stated that after she had received the report from the Fact-Finders, she called Complainant into her office to tell her that because there were no witnesses to the incident, the matter was considered a ""he-said-she-said" case that would be closed with an outcome that the allegation was not proven. IR 149. She stated that Complainant was upset about the findings. IR 94, 149; Hearing Transcript (HT) 187-88, 190-93. At the hearing, the Human Resources Manager acknowledged that she did not believe that Complainant had fabricated the incident or was otherwise not being truthful, that the Fact-Finders merely took statements without judging whether the witnesses were credible, and that in her opinion, Complainant and the MDO were equally credible witnesses. HT 188-89, 201-04, 211-12. One of the Fact-Finders testified that she did not come across any information indicating support for Complainant's allegation. HT 168. She maintained that, in accordance with her training, neither she nor the other Fact-Finder drew any conclusion as to whether the incident complained of had actually occurred. HT 171-74. Complainant stated that her interactions with the MDO began with small talk several years prior to the date of the incident, but that as time went on, the conversations became longer and longer to the point at which she felt they had become "unwarranted." IR 50. She related an incident in which the MDO remarked that he would "spray his scent on her so that no other man would get near her at work," or words to that effect. IR 51, 119. In her declaration and again at the hearing, Complainant testified that the MDO would bring her drinks, that he sometimes brought her objects such as baseball caps and figurines, one of which was of a woman with a figure similar to that of Mae West. IR 20-25, 51, 118-19; HT 41-43, 47, 205-10. In her declaration and at the hearing, she testified that she had rebuffed the MDO's advances in April and October of 2009, that she complained to the union about those incidents, and that nothing was done about it. IR 47, 51, 61-62; HT 39-40, 81-82. In addition, Complainant testified that the MDO would refer to her as "classy lady," and ""baby girl" in a way that made her feel uncomfortable, and that he would touch her on the shoulders as though he was giving her a massage. IR 50, 52-53; HT 38, 40-41. She also averred the MDO had threatened her when she told him to stop, warning her, "You don't want to piss me off because I can be a mean person if you do. IR 119-20. In her investigative affidavit and at the hearing, Complainant stated that on February 11, 2010, while she was working at a sorting machine, the MDO came up to her, grabbed her around the waist and pulled her toward him, and kissed her on the back of the neck. IR 53-54, 107, 117; HT 49-51. She also stated that the encounter triggered a flash back to a time when she was sexually abused by an uncle as a child, causing her to experience overwhelming feelings of shock and nervousness. IR 54, 107, 116-21; HT 53-54. At the hearing, Complainant testified that she made several visits to a counselor with the Agency's Employee Assistance Program, and beginning in March 2010, she began seeing a psychiatrist, from whom she received medications and therapy. She further testified that she suffered lost income as a result of stress-related absences from work, and that there was no change in shift for her or the MDO. HT 54-62. In addition, she testified that she waited until February 24, 2010, to contact her Union Representative because she had been traumatized by the event. HT 79-80. The MDO's version of the events leading up to the incident is markedly different. He averred that he and Complainant had known each other for over twenty years, that they had lived on the same street at one time, that their children had gone to the same public schools, and that their families attended many functions together. IR 88-89, 139. He stated that the accusation of sexual harassment came to him as a "total shock," and maintained that never once did Complainant ever express that she felt nervous or uncomfortable with him. IR 88, 138-40. He denied that he warned Complainant not to "piss him off" or otherwise made threats to Complainant for rebuffing his advances. IR 90. As to the February 11th incident, the MDO denied that it had ever taken place. IR 18-19, 77-78, 138. He called Complainant's allegation, "totally untrue." IR 88, 138-39. According to the MDO's version of the event, he walked by her work station and spoke briefly to her, and that she gave an equally brief response. IR 89. He averred that Complainant never told him that she had been offended by his action, and that he did not become aware that there was a problem with Complainant until he was informed by the Union President. IR 89-90. The MDO did not appear as a witness at the hearing.2 Following the investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission AJ. The AJ assigned to the case held a hearing on January 30, 2014, and issued a decision on May 28, 2014, finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In concluding that Complainant failed to establish a prima facie case of sexual harassment, the AJ made the following findings: "The Complainant was not a credible witness. Her assertion that she and the MDO were not friends before the incident is rebutted by [her Partner on the sorting machine] and [the 204B], two coworkers who were interviewed during the investigation. In addition, the Complainant has admitted that she and the MDO were friendly enough that she regularly accepted small gifts and trinkets from him. The Complainant has failed to establish a prima facie case of sexual harassment regarding this claim because she has failed to show that it actually occurred. There were no witnesses to the alleged kissing incident and the MDO denied that it occurred. The MDO was a credible witness. His assertion that he and the Complainant were longtime friends is supported by the Complainant's coworkers. In light of the foregoing, an inference of sexual harassment / hostile work environment does not arise in the subject case." AJ Decision, p. 7. The Agency subsequently issued a final order adopting the AJ's decision. On appeal, Complainant contends that the AJ abused his discretion in finding that the MDO was a credible witness because the MDO never appeared at the hearing, and consequently, the MDO's credibility as a witness could not be assessed. Appeal Brief, pp. 5-6. ANALYSIS AND FINDINGS At the outset, we must determine whether the AJ abused his discretion by finding an absent witness credible and basing his no-liability finding upon that assessment. Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Kenyatta S. v. Dept. of Justice, EEOC Appeal No. 0720150016 & n. 3 (Jun. 3, 2016). Nonetheless, the Commission has found abuse of discretion by the AJ under a variety of circumstances. See Frederick A. v. Dept. of the Navy, EEOC Appeal No. 0120140377 (June 15, 2016) (dismissing complaint where Complainant's partial response did not rise to the level of contumacious conduct); Madaris v. U. S. Postal Service, EEOC Appeal No. 0120131585 (Aug. 13, 2013) (taking testimony by telephone absent exigent circumstances or a joint request from the parties); Duckwiley v. General Services Admin., EEOC Appeal No. 0120103514 (Feb. 4, 2011) (excluding claim accepted for processing by the Agency and referred for investigation); Santos v. Dept. of Agriculture, EEOC Appeal No. 0120064263 (Sept. 26, 2008) (issuing a decision without a hearing when material facts remained in genuine dispute). Where the AJ relies on credibility determinations based on the demeanor or tone of voice of a witness, such determinations will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Here, there is no question that the AJ relied upon his determination that the MDO was a credible witness in finding that Complainant failed to prove that the incident of February 11, 2010, had actually taken place. The AJ said so explicitly in his decision. But because the MDO was not present at the hearing, the AJ could not observe his tone and demeanor. That the AJ found the MDO to be a credible witness despite the MDO's absence from the hearing is a clear-cut abuse of discretion. We will therefore accord no evidentiary weight to the AJ's determination regarding the credibility of the MDO. What can be determined from affidavits, declarations, and other written statements, however, is a witness's veracity. Unlike credibility, which can only be gauged by means of in-person observation of a witness's tone and demeanor, a person's veracity can be routinely assessed by comparing their written statements with those of other witnesses and to documents. See Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015) (indicators of pretext include unexplained inconsistencies in evidentiary record); Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. denied EEOC Request No. 0520080211 (May 30, 2008) (pretext demonstrated by showing such inconsistencies or contradictions in the Agency's reasons for its action that a reasonable fact finder could find them unworthy of credence). Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). We agree that there were no witnesses to the incident that allegedly took place on February 11, 2010, other than Complainant and the MDO. Complainant did, however, inform several people about that incident, both immediately and in the days and weeks that followed. IR 51, 54, 118. In particular, she averred that she told her Partner and three coworkers that the MDO had "put his crusty lips on me." IR 51, 54, 73, 74, 78-79, 96, 98, 118. In his declaration, Complainant's Partner on the sorting machine stated: "[Complainant] told me that [the MDO] had come up to her and kissed her on the back of the neck and said he was glad they were talking again." IR 132-134. The 204B testified that Complainant told him that the MDO had grabbed her and kissed her on the back of the neck, and that as a result of the encounter, Complainant's countenance had changed from outgoing to withdrawn. HT 104-05, 110. Coworker 2 testified that on February 11, 2010, he observed that Complainant appeared to be very upset and that when he asked her what was wrong, she told him that the MDO had come to her and kissed her. IR 98; HT 113. Finally, in a note dated July 20, 2010, Complainant's Psychiatrist wrote that she had been treating Complainant for acute stress disorder in direct relation to the sexual harassment that she received at her place of employment, that she began treating Complainant in March 2010, shortly after the harassment occurred, and that she was treating Complainant's symptoms through medication management and supportive therapy. IR 82. Complainant's live-in boyfriend testified about the stress Complainant exhibited right after the incident and the change in countenance that followed, and about the fact that she had been on psychiatric medication for four years since the incident. HT 122-23. In finding that Complainant failed to prove that the incident occurred, the AJ appears to have discredited the statements from the aforementioned coworkers, according them no probative value. The Commission has ruled, however that hearsay evidence such as these witness statements has some probative value and is consequently admissible in an EEO administrative hearing. See Complainant v. U.S. Postal Service, EEOC Appeal No. 0120120413 (Feb. 11, 2015) (testimony of witness who largely testified as to what she was told by Complainant admissible even though it was hearsay). The AJ even acknowledged as much, overruling hearsay objections from Agency Counsel on other matters. HT 18, 63. Complainant's story is not without its own inconsistencies. DOS-1, Complainant's immediate supervisor, was working at the other end of the sorting machine, trying to fix a jam when the incident occurred. He testified that he was not aware of anything that transpired between Complainant and the MDO, and that he had not been aware of the incidents that took place in 2009. He also testified that he had never seen the MDO act unprofessionally toward women. HT 131-33, 135-36, 139-40, 143-49. While we find it puzzling that Complainant would not have reported these occurrences to her immediate supervisor, she acknowledged that she was too embarrassed to do so. IR 113. The Commission will defer to the AJ's factual determinations unless the testimony of the witness upon which those determinations are based so lacks in credibility that a reasonable fact finder would not credit it. See EEO Management Directive 110, Chapt. 9 §VI(B)(2) (August 5, 2015). Ultimately, the fact that Complainant told the same story to four different people, and had been under psychiatric care since March 2010, is sufficient to lead to a determination that that the MDO's version of events lacks credibility. Taken as a whole, we find that the record in this case presents sufficient evidence to support a finding that the incident in which the MDO came up to Complainant while she was at her workstation, grabbed her around the waist, and kissed her on the neck did, in fact, occur on February 11, 2010, as Complainant described it. Accordingly, we conclude that the AJ's post-hearing factual finding to the contrary is not supported by substantial evidence of record. Having found that the incident at issue in the instant complaint occurred on February 11, 2010, the next question we must consider is whether the MDO's conduct, which consisted of a single incident, constitutes a violation of Title VII. The AJ found otherwise, as previously noted. An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Complainant v. United States Postal Service, EEOC Appeal No. 0120093461 (May 16, 2014). To prevail on her claim of sexual harassment, Complainant must prove, by a preponderance of the evidence, that, she was subjected to sexual conduct so severe or pervasive that a reasonable person in their position would have considered it hostile or abusive. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). The conduct in question should be evaluated from the objective viewpoint of a reasonable person in the victims' circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). Only if Complainant satisfies her burden of proof with respect to both of these elements, motive and hostility, will the question of Agency liability for discriminatory harassment present itself. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132783 (Sept. 11, 2015). The Commission has found that under certain circumstances, a single incident could be severe or pervasive enough to give rise to a hostile environment in and of itself. See Hayes v. U. S. Postal Service, EEOC Appeal No. 01954703 (Jan. 23, 1998) req. for recon. den. EEOC Request No. 05980372 (Jun. 17, 1999) (coworker sticking his tongue in the Complainant's ear); Woolf v. Dept. of Energy, EEOC Appeal No. 0120083727 (Jun. 4, 2009) req, for recon. den. EEOC Request No. 0520090560 (August 21, 2009) (AJ erred in finding after hearing that Complainant not subjected to sexual harassment based on single incident where coworker forced his thigh between Complainant's legs, put his mouth to her ear and told her how gorgeous she looked). Here we find that the MDO's act of grabbing Complainant around the waist and kissing her constitutes overtly sexual bodily contact that rises to the level of harassment, as did the conduct at issue in Hayes and Woolf. The only issue left to be resolved is the MDO's motive. The MDO stated in his declaration that he and Complainant had been friends for many years, and that she was like a daughter to him. The Agency points to the fact that Complainant's Partner and Coworker (1) both opined that Complainant and the MDO were friends due to the fact that they had seen MDO talking with Complainant in her work area. IR 125, 132. Complainant disputed that assertion, however. HT 62-71. When asked at the hearing whether the MDO was a personal friend of hers, she replied, "no" HT 35-36, 39. Complainant's boyfriend also disputed the MDO's claim regarding his long-term friendship with Complainant. He testified that in the 15 years that he and Complainant had been together, he had never met the MDO, that they had never invited the MDO to their home, and that they had not been to the MDO's home. HT 121. Complainant's version of the events leading up to the incident is supported by five handwritten notes prepared by her Union Representative. The dates on the notes indicate that they had been prepared contemporaneously with the incident dates. In a note dated April 29, 2009, the Representative reported that he had received a complaint that she was being sexually harassed by the MDO, that he advised Complainant to speak to MDO personally the next time it happened and let him know that his advances were not appreciated, and that he would intervene if there were any further problems. IR 79. In the second note, dated October 10, 2009, the Representative again reported a sexual harassment allegation by Complainant against the MDO. He reported that the MDO was buying gifts for Complainant and touching her all the time, rubbing her shoulders and calling her names like "baby doll." He also stated in the note that he talked the matter over with the Union President and that they both advised her to tell the MDO that she wanted his inappropriate behavior to stop immediately, and that they would both get involved if the MDO's behavior did not stop. IR 81. In the third note, dated February 24, 2010, the Representative indicated that Complainant reported the incident of February 11, and that she reiterated that she had told the MDO twice before to stop harassing her. He stated that he again discussed the matter with the Union President and advised Complainant to file an EEO complaint. IR 75. In the fourth note, dated two days later, the Representative reported that the MDO denied that the incident occurred and told him that he and Complainant had been good friends for many years and that he admitted to buying gifts for Complainant, but said that Complainant was like a daughter to him. The Representative reported that he advised the MDO to stay away from Complainant until "things died down." IR 77-78. In the fifth note, dated May 27, 2010, the Representative reported his personal observation of an interaction between the MDO and Complainant. He stated that on an unspecified date in February 2010, he observed that while Complainant was working at the sorting machine, he saw the MDO approach her, grab her arm and whisper into her ear, and that Complainant appeared startled. He noted that this incident happened before Complainant filed her EEO complaint. IR 80. Other witnesses attested to the MDO's conduct with female subordinates. DOS-2 averred that he had heard rumors about the MDO's involvement with female employees and that he had observed the MDO to be "flirtatious, which could be misconstrued as unprofessional." IR 107, 109, 112, 114, 130. The 204B testified that he had seen the MDO bring Complainant drinks and give her the baseball caps and figurines. HT 105-06. When asked by the EEO investigator whether he had seen the MDO act unprofessionally, the 204B replied that there was some office gossip involving the MDO and a part-time female casual employee and that he himself had observed the causal employee getting out of the MDO's car in the parking lot on one occasion. The 204B did not give a date for the occurrence, but said that it was "a long time ago." IR 128; HT 102. As can be ascertained from the foregoing, the MDO was clearly motivated by considerations of sex in connection with the February 11, 2010 incident. Consequently, the Agency will be held liable if it cannot show that it exercised reasonable care to prevent and promptly correct any harassment and that Complainant failed to take advantage of any preventive or corrective opportunities provided to avoid harm otherwise. Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 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. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 763 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The Union Representative's handwritten notes indicate that he advised Complainant to inform the MDO after the incidents that occurred in April and October of 2009, that his behavior towards her was inappropriate, and that she had done so. IR 75, 77-79, 80-81. The Union President testified that she had suggested to the MDO to take steps to prevent sexual harassment incidents from happening again, and that although the MDO appeared receptive, he did not follow through on any of her suggestions. HT 15-17. Moreover, the MDO's comment that he could "really be a mean person" reflects his implied threat to use the authority of his position to pressure her. On the basis of this evidence, we find that the MDO was acting in an Agency capacity at the time of the harassment and that the Agency failed to take corrective or preventative measures. Therefore, the Agency cannot escape liability for the MDO's actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we REVERSE the Agency's final order. ORDER (C0610) The Agency is ordered to take the following remedial action: Within one hundred and twenty (120) calendar days after the date that this decision becomes final, the Agency shall determine the appropriate amount of back pay, with interest, restoration of leave and other benefits due Complainant for absences from work that are directly attributable to MDO's act of sexual harassment. 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." Within one hundred and twenty (120) calendar days after the date this decision becomes final, the Agency shall conduct a supplemental investigation pertaining to Complainant's entitlement to compensatory damages incurred as a result of the MDO's act of sexual harassment. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). The Agency shall afford the Complainant sixty (60) calendar days to submit additional evidence in support of her individual claim for compensatory damages. Within thirty (30) calendar days of its receipt of the Complainant's evidence, the Agency shall issue a final decision determining the Complainant's entitlement to compensatory damages, together with appropriate appeal rights. If the MDO is still employed by the Agency and to the extent that it has not already done so, the Agency shall provide EEO training to the MDO regarding harassment, sexual harassment in particular. If the MDO is still employed by the Agency and to the extent that it has not already done so, that Agency shall consider taking appropriate disciplinary action against the MDO. 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 the MDO has left the Agency's employ, the Agency shall furnish documentation of his departure date. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Processing and Distribution Center 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)), 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 (M0416) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 MDO had retired at the time of the hearing.