U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erwin B.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120151276 Agency No. HSTSA018892013 DECISION On February 21, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's January 23, 2015, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector (TSI) at the Sacramento International Airport in Sacramento, California. On December 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), disability (dyslexia), and age (57) when: 1. on an unspecified date in 2010, Complainant's supervisor accused him of lying; 2. on an unspecified date in 2011, Complainant's supervisor rated him as "Does Not Meet Standards"; 3. during a March 2012 workshop, Complainant's supervisor introduced everyone in the room, except for Complainant; 4. in or around July 2012, Complainant's supervisor initiated an unwarranted investigation into a conversation Complainant had with a coworker about a plant; 5. in or around March 2013, Complainant was issued a Letter of Counseling for unprofessional conduct; 6. in or around May 2013, Complainant's supervisor issued him a three-day suspension for kicking an empty box and allegedly not following call-in procedures; and, 7. on or about July 16, 2013, Complainant's supervisor issued him a Letter of Counseling for missing a duty call. The Agency accepted the formal complaint and conducted an investigation. The investigative record reflects the following: Disability Complainant stated that he was diagnosed with dyslexia in 1998, but that no one at the Agency was aware of his dyslexia. We presume, for purposes of analysis only, and without so finding, that Complainant is an individual with a disability within the meaning of the Rehabilitation Act. Alleged Responsible Management Officials The Assistant Federal Security Director of Inspections (Half Caucasian and Half Pacific Islander, age: 38) ("the Assistant Director"); and, the Federal Security Director of Inspections (Caucasian, age: 46) ("the Director"). Claim 1 Complainant and a coworker (Caucasian, age 56) ( ("E1") were meeting with a stakeholder when E1 stated to the stakeholder, "It is not who you know, it is who you blow, in order to get a promotion." The Assistant Director later found out about the comment, and he and the Assistant Director of Screening spoke with Complainant and E1 about the incident. E1 admitted to making the comment and the Assistant Director issued E1 a Letter of Reprimand. The first time the Assistant Director spoke with Complainant about the incident, Complainant stated that he could not recall the "blow" comment. However, at the second interview, he stated that he indeed did recall the comment, and did not think the comment was inappropriate "because that is how guys talk." Nevertheless, Complainant conceded that it was an inappropriate comment to make to an outside stakeholder. Complainant asserted that he genuinely did not recall the statement at first, and was not lying. However, based on the interviews, the Assistant Director issued Complainant a reprimand for lack of candor, because he found it suspect that Complainant could not initially recall the "blow" comment, but was then later able to recite the exact comment. Claim 2 In 2011, the Agency introduced a new Employee Performance and Management Process (EPMP). The EPMP had Communication as a rating category. Based on the above incident in Claim 1, the Assistant Director initially rated Complainant "Not Acceptable" in the Communication category. The Assistant Director rated Complainant as "Achieved Expectations" or "Exceeded Expectations" in the remaining categories. However, the Assistant Director believed that rating one element as "Not Acceptable" rating meant the entire evaluation had to have an overall rating of "Not Acceptable." Sometime later, the Administrative Officer advised the Assistant Director that the EPMP was based on performance, not conduct; and, that there would have to be something more significant in Complainant's file, than the incident addressed in Claim 1, to support an overall rating of "Not Acceptable." The Assistant Director stated he was not aware of how the requirements worked because the EPMP was still new. Accordingly, the Assistant Director made the necessary changes to Complainant's EPMP, and explained to Complainant what happened. Complainant received a new rating that reflected his more positive ratings. Complainant was initially unaware that the Assistant Director had rated him as "Not Acceptable," and only found out once the Assistant Director informed him of what happened. Claim 3 In March 2012, someone from the Agency's headquarters visited the airport for a presentation that Complainant had coordinated. Complainant stated that right before the presentation the Assistant Director introduced the guest to the staff, but failed to introduce Complainant. The Assistant Director denied Complainant's allegation. Claim 4 In July 2013, an employee generally asked a group of employees to water her plant while she was on vacation. One of the other employees (Hispanic, age 30) ("E2") stated that the plant was overwatered and withered. E2 felt bad, so she bought a new one. As E2 was entering work with the new plant, she passed Complainant, who jokingly said, "You guys didn't kill the plant; I poisoned it". E2 stated that it was just a "really funny" joke and that both of them laughed. The Assistant Doctor, however, overheard Complainant's joke and allegedly said, "I am going to look into this." The Assistant Director purportedly initiated an investigation into the plant's death. The Human Resources department interviewed the involved employees and concluded that there was no wrongdoing, and that it was merely a joke. E2 made the additional comments, I think the Complainant is singled out. The rules are not applied equally across the board. The Complainant and I are the only Hispanics, and I have felt mistreated which I am not sure if it is due to my gender or race....[The Assistant Director] writes up the Complainant for things that other people do and are not written up for. The Assistant Director initiated the investigation because the plant owner had previously made a complaint about Complainant's messy cubicle, and he believed that there was potential friction between Complainant and the plant owner. The Assistant Director was concerned that the plant owner would believe that Complainant's poison remark was true and that she worked in a hostile work environment. E2 did tell the Assistant Director that it was just a joke, but the Assistant Director continued with the investigation. Claim 5 Complainant stated that in March 2013, he raised his voice during a meeting. The Assistant Director warned Complainant to lower his voice or leave the meeting. Complainant stated that he lowered his voice. After the meeting, the Assistant Director issued Complainant a Letter of Counseling for raising his voice. Complainant noted that a few months later, E1 raised his voice, grabbed his private parts, and told another employee to "grow a pair." Complainant noted that E1 faced no consequences. Another inspector that was present at the meeting (Caucasian, age 50) ("E3") confirmed that E1 had made the inappropriate comments and gestures at the meeting and that the Assistant Director was present, but did not say anything. The Assistant Director stated that the dates were wrong, and that this actually occurred in June 2012, and that he issued the Letter of Counseling on June 27, 2012. The Assistant Director stated that he met with inspectors to discuss concerns about after-hour surface inspections and that Complainant had interrupted him. The Assistant Director asked Complainant to allow him to finish. Later in the meeting, Complainant had the opportunity to speak, but the Assistant Director felt it was unprofessional, defensive and loud, so he asked him to lower his voice. The Assistant Director affirmed that at a later meeting, E1 did raise his voice, but that it was towards the group, he could not recall E1 grabbing his private parts or telling anyone to "grow a pair." The Assistant Director stated that he also informed E1 to calm down or step outside, but confirmed that he did not issue a Letter of Counseling to E1. The Assistant Director noted that the difference was that Complainant had directly interrupted him, whereas E1 had spoken loudly to the group. Claim 6 In March 2013, Complainant took two days off work because his computer station was being installed. On March 14, 2013, Complainant reported to work and learned that the installation was incomplete. Complainant became frustrated, stated "This is fucked up, this is bullshit, I'm going home on sick leave", and kicked a nearby empty box. Complainant notified two coworkers that he was going home sick. Complainant also emailed E1 that he was going home sick. Complainant presumed one of the three individuals would notify the Assistant Director that he left. On March 27, 2013, the Assistant Director and the Administrative Officer met with Complainant and informed him that he was in trouble for the March 14, 2013 incident. They informed Complainant that he had alarmed his coworkers when he kicked the box and swore, and that he should have notified the Assistant Director and Coordination Center when he abruptly left. On April 9, 2013, the Assistant Director issued Complainant a Notice of Proposed Suspension for Inappropriate Conduct and Failure to Follow Leave Procedures. The Assistant Director considered the Complainant's prior Letter of Counseling when issuing the proposed suspension. On May 14, 2013, Complainant received a three-day suspension for "Inappropriate Conduct" and "Failure to Follow Leave Procedures." The Director concurred with the suspension. Complainant asserted that he apologized to his coworkers, and they informed him that he had not alarmed them. Complainant contends that the Assistant Director and the Director exaggerated his outburst in order to portray him as a volatile and dangerous worker. Claim 7 In the office, every inspector was required to be on-call for the aviation department for 24 hours each week. Complainant acknowledged that he missed a Duty Agent call because he had just received a new phone, was unsure how to operate it, and was unaware that the phone had accidentally turned off. The Assistant Director stated that Complainant failed to answer repeated Duty Agent calls. Additionally, the Assistant Director also emailed Complainant and called his two Emergency Contact numbers (which were out of service or incorrect). When Complainant returned to work, he read the emails and realized he missed the call. The Assistant Director met with Complainant regarding the missed call. Complainant explained his issues with his new phone. The Assistant Director asked if these issues were reported to anyone, Complainant stated no. The Assistant Director issued Complainant a Letter of Counseling for missing a Duty Agent call, and subsequently issued Complainant a Letter of Counseling for "Failure to Meet Employee Duty Responsibilities." Complainant asserted that the Assistant Director treats people of color differently, and singles Complainant out for not having the same technological knowledge as "younger people." Complainant noted that the Assistant Director has never issued a Letter of Counseling to other transportation security inspectors (TSI) who have missed duty calls. Complainant listed three comparators (two Caucasian, one over 40, one under 40, and one Asian under 40). The Assistant Director affirmed that the three comparators have missed duty calls, but that he addressed the issue with each employee on a case-by-case basis. E2 noted that he has "missed a couple" of duty calls, but never received disciplinary action for doing so. Another comparator (Caucasian, age 58) affirmed that he had "missed a couple of duty calls and has not received discipline or corrective actions." 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claims 1 - 4, and 6: No Discrimination Here, even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions for Claims 1 - 4, and 6. In Claim 1, Complainant was issued a reprimand for lack of candor in relation to his coworker, E1, making a lewd and inappropriate comment to an outside stakeholder. While Complainant did not make the inappropriate comment, when initially questioned he claimed to be unable to recall the "blow" comment. However, a short while later, after E1 admitted to making the comment, Complainant was able to recall, with detail, the comment made. As a result, the Assistant Director issued Complainant the reprimand. Here, we find that the Agency, and specifically, the Assistant Director, provided a legitimate, non-discriminatory reason for what happened. In Claim 2, Complainant was upset to find that the Assistant Director had initially marked his rating at "Not Acceptable," or "Does Not Meet Standards." While it is true that the Assistant Director initially marked Complainant's 2011 rating as "Not Acceptable," this original rating was based on the Assistant Director's misunderstanding of the newly implemented Employee Performance and Management Process (EPMP). The Assistant Director had only marked the Communications category as "Not Acceptable" based on the events that occurred in Claim 1, while marking the majority of Complainant's other ratings as "Achieved Expectations" or "Exceeded Expectation." When the Assistant Director realized the error he made, he explained the situation to Complainant, and changed the overall rating to reflect Complainant's overall positive markings. Complainant was not harmed by the Assistant Director's initial mistake. In Claim 3, there is no evidence that the Assistant Director purposefully failed to introduce the headquarters guest to Complainant based on any of his protected classes. There is nothing in the record to support Complainant's contention that the Assistant Director purposefully failed to introduce Complainant based on any discriminatory animus. In Claim 4, the Assistant Director took Complainant's joke about purposefully killing his colleague's plant as a serious matter. Here, Complainant and E2 assured the Assistant Director that it was merely a joke and nothing more. However, the Assistant Director stated that he initiated the investigation because he perceived potential friction between the plant owner and Complainant. This was based on the plant owner's previous complaint of Complainant's cubicle, which she perceived as being too messy. Complainant noted that he had a civil and professional relationship with the plant owner, and that he only made the joke to cheer up E2, who was quite upset about the plant withering away. While the Assistant Director might have taken a more localized approach and not involved a full investigation, it appears that he was merely being overly cautious considering the plant owner's previous complaint, and his fear that she might think the joke was actually true. There is nothing in the record to suggest that the Assistant Director initiated the investigation based on Complainant's protected class, or that the articulated reason was pretext for discrimination. In Claim 6, Complainant was issued a three-day suspension for "Inappropriate Conduct" and "Failure to Follow Leave Procedures." The Director concurred with the suspension. Here, Complainant became visibly angry and used profanity in the workplace when he became frustrated that his computer was not fully installed. Furthermore, after Complainant kicked the box, he informed three coworkers that he was going home sick. He simply assumed that his coworkers would inform the Assistant Director of his whereabouts if questioned. Complainant should have, as the Assistant Director noted, notified the Assistant Director and the Coordination Center that he left. We find nothing in the record to suggest that the disciplinary action was out of line with Complainant's actions. Claims 5 and 7: Discrimination Regarding Claims 5 and 7, we find that Complainant has established a prima facie case of discrimination based on race. Specifically, Complainant is a member of a protected class based on his race. Further, we find that Complainant was subjected to adverse actions, and was treated less favorably than other employees outside of his protected class. In this case, Complainant was issued a Letter of Counseling on June 27, 2012, for Unprofessional Conduct, and another Letter of Counseling for Failure to Meet Employee Duty Responsibilities when he missed a duty call. In both Claims 5 and 7, the Assistant Director's justifications lacked details regarding the reasons Complainant received disciplinary action, when others committing the same or similar infractions received none. We will address both claims individually as follows. In Claim 5, the Assistant Director stated that Complainant interrupted him before he could finish his thought. When it was Complainant's turn to speak, Complainant allegedly spoke with an unprofessional and defensive tone. The Assistant Director stated that he told Complainant to lower his voice or leave and Complainant did lower his voice. Yet, following the meeting, the Assistant Director issued Complainant a Letter of Counseling for Unprofessional Conduct. In contrast, in a meeting held sometime after this incident. Complainant asserted that E1, a Caucasian employee, raised his voice, grabbed his crotch and told a fellow coworker to "grow a pair." Complainant asserted that despite witnessing this exchange, the Assistant Director did nothing. Another inspector who was present, E3, affirmed Complainant's version of events. In his interview, the Assistant Director affirmed that E1 raised his voice, but asserted that the main difference was that it was towards the group, and that he (E1) had not interrupted him. Additionally, the Assistant Director stated that he could not recall E1 grabbing his private parts or telling anyone to "grow a pair." Here, E1 was arguably more disruptive in exhibiting inappropriate behavior in the workplace. Even if the Assistant Director truly did not witness E1's behavior, in both instances, both E1 and Complainant are arguably disruptive to the meeting as whole. Only Complainant, however, was issued a disciplinary action. While the Assistant Director has offered what, he believed to be a legitimate, non-discriminatory reason for issuing Complainant a Letter of Counseling, but not E1, we find that it was pretextual as it lacked uniformity in how he issued discipline. In Claim 7, on July 16, 2013, the Assistant Director issued Complainant a Letter of Counseling for "Failure to Meet Employee Duty Responsibilities." The Assistant Director issued Complainant a Letter of Counseling for missing a duty call. The Assistant Director stated that Complainant failed to answer calls to his government-issued phone, did not respond to his email, and his emergency contacts were out of date. Additionally, the Assistant Director noted that Complainant failed to notify anyone at the Agency that he was having problems with his new phone. Complainant asserted that such disciplinary action was disproportional, particularly given that he had never previously missed a duty call, and that other inspectors had missed a duty call without discipline. As the investigator noted, the Assistant Director "stated, without expounding, that he addressed the issue with each employee on a case-by-case basis." Such a justification is extremely generalized, and provides no substantive explanation why, in Complainant's particular case, disciplinary action was deemed warranted. Here, the record demonstrates that other non-Hispanic inspectors, including Caucasian employees, missed duty calls with no consequences. One Caucasian employee affirmed that he had "missed a couple of duty calls and has not received discipline or corrective actions." The Agency's final decision noted that according to the Assistant Director, the comparators did not receive disciplinary action because when they had not answered a duty call, the circumstances involved were either beyond their control, or had not resulted in an "adverse effect on security." However, aside from the Assistant Director's word, there is nothing in the record to demonstrate that Complainant's missed call caused any "adverse effect on security." We find that the disciplinary action was disproportionate to Complainant's action, which, as far as the record demonstrates, again did not result in any dire consequences. Having found that the issuance of the disciplinary action in Claims 5 and 7 to be motivated by discriminatory animus based on Complainant's race we need not analyze whether Complainant also established a claim of disability or age discrimination. No additional remedial relief would stem from a finding of disability or age discrimination CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's finding of no discrimination in Claims 1 - 4, and 6. We REVERSE the Agency's finding of no discrimination in Claims 5 and 7. Claims 5 and 7 are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to take the following remedial action: 1. Rescind the June 27, 2012 and the July 16, 2013 Letters of Counseling referenced in Claims 5 and 7. If still present in Complainant's personnel file, remove any and all reference to these Letters of Counseling. 2. If either of the June 27, 2012 and the July 16, 2013 Letters of Counseling was used in later progressive disciplinary actions, adjust such actions as if the Letters did not exist. 3. The Agency shall consider Complainant's claim for compensatory damages, incurred as a result of the Agency's discriminatory actions. Within 15 days of the date this decision becomes final, the Agency shall notify Complainant of his right to present evidence to the Agency regarding his claim for compensatory damages. Complainant shall provide objective evidence that the damages in question were a result of the Agency's discrimination and of the amount of the claimed damages. Within 30 days of the submission of such evidence, the Agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission. 4. The Agency shall provide training to the Assistant Director regarding his responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 5. The Agency shall consider taking appropriate disciplinary action against the Assistant Director. 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 Assistant Director has left the Agency's employ, the Agency shall furnish documentation of their departure date(s). 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 benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G1016) The Agency is ordered to post at its Sacramento International Airport in Sacramento, California 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 was issued, 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/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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or ""department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the 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. Carlton M. Hadden, Director Office of Federal Operations May 15, 2017 __________________ 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 0120151276