U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeffrey B. Solomon, a/k/a Wilmer M.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency. Appeal No. 0120160352 Agency No. DOS-0137-15 DECISION On September 24, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency decision, dated September 15, 2015, concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Passport Specialist at the Detroit Passport Agency in Detroit, Michigan. Believing that he was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on February 3, 2015. Informal efforts to resolve Complainant's concerns were unsuccessful. On March 15, 2015, Complainant filed a formal complaint based on disability. The Agency framed the claims2 as follows: 1. Complainant's request for a reasonable accommodation was denied; 2. Complainant received an unsuccessful rating on his 2014 performance evaluation; and, 3. Complainant was subjected to an ongoing hostile work environment, characterized by, but not limited to public humiliation, heightened scrutiny, insufficient feedback, and being held to higher standards than his colleagues. After an 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). 3 In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to establish that he was denied a reasonable accommodation (claim (1)) or otherwise treated differently. Specifically, the Agency reasoned that Complainant failed to engage in the interactive process. According to the Agency, once Complainant requested a reasonable accommodation, "management immediately began the interactive process ...." When management determined that Complainant's requested accommodations "were not feasible", it sought additional information from Complainant. From September 2014 through April 2015, Complainant's request was kept open. When, however, Complainant failed to respond to the Agency's request for alternative accommodation, the Agency closed the matter. With respect to Complainant's 2014 Performance Evaluation (claim (2)), the Agency found that his unsuccessful rating accurately reflected his work and was not based on his disability. Complainant argued that management's actions exacerbated his PTSD, which had an impact upon his performance. The Agency noted that Complainant was not meeting standards "as early as January of 2014." Further, the Agency explained that Complainant was "given ample feedback on his deficiencies through meetings and emails", and at no time did management blame or reference Complainant's PTSD. Finally, regarding claim 3, the Agency found that the actions and remarks that purportedly created a hostile work environment were "confined to professional matters within the scope of their supervisory authority" and made with "professional, temperate, and respectful language." The Agency found no evidence that management used slurs, epithets, or promoted stereotypes based on Complainant's disability. The Agency stated that the matters addressed in this claim did not rise to the level of harassment. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Qualified Individual with a Disability Under the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §1614.203(c). To establish a prima facie case of disability discrimination, a complainant must show that: 1) he is an individual with a disability as defined in 29 C.F.R. §1614.203(a)(1), 2) he is a "qualified" individual with a disability as defined in 29 C.F.R. § 1614.203(a)(6), and 3) the agency took an adverse action against him. See Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981). Complainant also must demonstrate a causal relationship between his disabling condition and the agency's reasons for its actions. Absent a connection between the two, the agency has no obligation to reasonably accommodate Complainant's disability. The threshold question is whether a complainant is an individual with a disability within the meaning of the regulations. EEOC Regulation 29 C.F.R. § 1614.203(a)(1) defines an individual with a disability as one who: 1) has a physical or mental impairment that substantially limits one or more of that person's major life activities; 2) has a history of such impairment; or 3) is regarded as having such an impairment. EEOC Regulation 29 C.F.R. §1613.702(c) defines "major life activities" as including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. A review of the instant record shows that Complainant has been diagnosed with military service-related Post Traumatic Stress Disorder (PTSD) which substantially limits major life activities. According to one of his physicians, Complainant's symptoms include the following: depression, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. Another physician noted that both Complainant's condition and his prescribed medications can affect his ability to concentrate, focus on tasks, as well as the speed of his cognitive processing. The Agency itself does not contest Complainant's disability, citing in its decision a statement by the Division Chief. Specifically, the Agency noted that the Division Chief "explained that on November 4, 2014, the Agency's Office of Medical Services determined that Complainant was deemed a qualified individual with a disability and could be considered for a reasonable accommodation." Consequently, we find that Complainant is an individual with a disability within the meaning of the regulations. Having found that Complainant meets the threshold requirement which would entitle him to the protections of the Rehabilitation Act, Complainant must also show that he is a "qualified" individual with a disability within the meaning of 29 C.F.R. 1614.203(a)(6). The regulation defines such an individual as a disabled person who, with or without a reasonable accommodation, can perform the essential functions of the position in question. Here, as noted above, the Agency acknowledges that Complainant is qualified. Record evidence shows that Complainant has been performing his Passport Specialist position for years. Therefore, the Agency had an obligation to reasonably accommodate Complainant's disability. Denial of Reasonable Accommodation The federal government, including the Agency, is charged with being a "model employer" of individuals with disabilities. See 29 C.F.R. § 1614.203(a). Inherent in this duty is an obligation to break down artificial barriers which preclude individuals with disabilities from participating on an equal footing in the work force. Accordingly, the Rehabilitation Act requires federal agencies to make various types of ""reasonable accommodation" for federal employees who have disabilities. This requirement helps ensure that such federal employees will be able to perform the essential functions of their positions, and enjoy all the benefits and privileges of employment enjoyed by non-disabled employees. See Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act ("Appendix to Part 1630"), at Section 1630.2(o): Reasonable Accommodation. Compliance with this duty to provide reasonable accommodation is itself a form of non-discrimination. See Id. at Section 1630.9: Not Making Reasonable Accommodation. Consequently, this Commission's regulations provide that: [i]t is unlawful for a covered entity [such as the agency] not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business .... [In addition] [i]t is unlawful for a covered entity [like the agency] to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments. 29 C.F.R. §§ 1630.9(a), (b) [emphasis added]; see also 42 U.S.C. §§ 12112(b)(5)(A), (B) (containing the statutory directive mandating reasonable accommodation for "otherwise qualified individual[s] with a disability"). Here, the Agency specifically noted that Complainant was "deemed a qualified individual with a disability." Thus, absent "undue hardship," an employer must provide reasonable accommodation for the physical or mental limitations of an employee (or applicant for employment) if the employee (or applicant) is an "individual with a disability" who is "otherwise qualified." See 29 C.F.R. § 1630.2(g). An individual with a disability will be "otherwise qualified," in turn, if "he or she satisfies all the skill, experience, education and other job-related selection criteria" - in other words, "if he or she is qualified for [the] job, except that, because of the disability [at issue], he or she needs a reasonable accommodation to be able to perform the job's essential functions." Appendix to Part 1630, at Section 1630.9: Not Making Reasonable Accommodation. EEOC's regulations provide that "[i]n general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Appendix to Part 1630, at Section 1630.2(o): Reasonable Accommodation. Any reasonable accommodation "should provide the qualified individual with a disability with an equal employment opportunity" - meaning "an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability." Id. at Section 1630.9: Not Making Reasonable Accommodation. Accordingly, appropriate accommodations might include job restructuring, adjustment or modification to policies, or modified work schedules. See 29 C.F.R. § 1630.2(o)(ii); see also Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under American with Disabilities Act (Oct. 2002) (permitting use of accrued leave or unpaid leave, for medical treatment, is a form of reasonable accommodation); Dino B. v. Equal Employment Opportunity Commission, EEOC Appeal No. 0720150039 (June 5, 2017) (Agency offered a cubicle in a less-trafficked area and noise cancelling headphones in an effort to provide Complainant with a "reduced distractive environment"). An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including: • the nature and cost of the accommodation needed; • the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility; • the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity); • the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer; • the impact of the accommodation on the operation of the facility. In the instant case, as set forth in the Agency's final decision, Complainant first told his Director in February 2014 that he had PTSD. In April 2014, Complainant contacted the Agency's Disability Reasonable Accommodation Division (DRAD). On September 17, 2014, Complainant submitted a reasonable accommodation request form, that listed approximately eight accommodations. According to the Agency, he also provided a Medical Questionnaire for Assessment of Disabilities/ Reasonable Accommodations executed by his doctor, as well as a letter from his doctor. More than six weeks later, on November 3, 2014, the individual assigned to Complainant's request (hereinafter "DRAD-S") emailed Complainant to set up a time to meet. Days later, DRAD-S sent Complainant a link to the Job Accommodation Network (JAN) Guidance, asking him to review the information and respond with specific accommodations he believed would be helpful. On November 19, 2014, after reviewing the information over the weekend, Complainant responded with a list of more than a dozen possible accommodations. Specifically, regarding his "lack of concentration", Complainant suggested the following options: a reduction in distractions in the work environment; space enclosures or a private space; and planned uninterrupted work time. In order to improve his time management and completion of tasks, Complainant sought weekly meetings with his supervisor, manager or mentor. He asked that his supervisor provide feedback at the end of the day instead of during each task, in an effort to maintain his focus. Complainant suggested a flexible start time or end time, a "straight shift" or "permanent schedule," and a modification to the Agency's attendance policy. In an email dated December 5, 2014, DRAD-S responded to Complainant's request. After acknowledging that Complainant was found to be a person with a disability and "approved" to receive reasonable accommodations, DRAD-S stated that none of the fourteen accommodations requested could be provided "due to either the nature of your position or said accommodations being outside the scope of reasonable accommodations." Each accommodation was listed and broadly rejected. For example, the reduction of distractions, planning for uninterrupted work time, and modifying the attendance policy were simply considered by the Agency to be "outside of the scope of reasonable accommodations." According to the Agency, providing partitions or a private space, were not possible due to "the nature of your position." Permitting time-off for Complainant to attending counseling, was denied as "not a reasonable accommodation." The Commission finds that the Agency failed to show undue hardship when it failed to grant any of Complainant's requested accommodations. We acknowledge that some of the accommodations requested by Complainant may have been overly broad (i.e. restructure job to include only essential functions, and modify attendance policy). The Agency, however, should have responded with follow-up questions and engaged in the "interactive process". Many of Complainant's requested accommodations were specific, reasonable and not only possible, but have been recommended by the EEOC and other reasonable accommodation experts. The Agency, however, erroneously dismissed Complainant's request, for example, for reduced distractions and uninterrupted work time as "outside the scope of reasonable accommodation." As noted above, providing employees with a quiet work area, through a variety of methods, is a reasonable accommodation. Similarly, Complainant asked that his supervisor provide daily feedback at one point of the day. According to Complainant, whose impairment has an impact upon his focus and concentration, "constant interruptions" by his supervisor did not allow him to perform his job effectively. Instead, he asked that the supervisor's instructions be given at the end of the day. As discussed in the Commission's Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC No. 915.002 (March 1, 1999), "An employer does not have to provide an employee with a new supervisor as a reasonable accommodation... [but] the ADA may require that supervisory methods be altered as a form of reasonable accommodation." Id. at 46. The Agency erred in denying Complainant's request as beyond the scope of a reasonable accommodation. The Agency's denial of many other suggested accommodations, due to "the nature of your position" are not supported by the record. For example, the Agency asserted that it was unable to provide Complainant with an enclosure or private space, or work from home part-time simply because of his position "requires you to be available to the public." A review of his position performance evaluations, however, reference both "desk adjudications" and "counter adjudications", suggesting that desk adjudications could possibly be completed in a private area or at home. Additionally, his Position Description describes tasks such as the following: analyzing facts, documentary evidence, and affidavits; researching policy and regulatory material; and expressing decisions clearly and concisely in both written and oral form. It is unclear how such responsibilities could not be performed in an enclosed office or from home. Similarly, the Agency failed to describe why specifically it could not modify Complainant's start time. Based on our review of Complainant's job description, it seems reasonable and possible. Therefore, we find that the Agency violated the Rehabilitation Act when it failed to show that providing any of the many requested reasonable accommodations would cause an undue hardship. See Petitioner v. Dep't of Homeland Security, EEOC Petition No. 0320110053 (July 10, 2014). The Agency's broad rejection does not reflect the specificity required of an individualized assessment, nor a consideration of the factors comprising an undue hardship. Moreover, we are troubled by the Agency's lack of participation in the interactive process. The numerous emails between DRAD-S and Complainant reflect that the Agency continually placed the burden exclusively on Complainant to propose accommodations. We note that in its December 5, 2014 email to Complainant, rejecting his second submission of numerous possible accommodation, DRAD-S noted that he was "working with management to come up with alternatives...." However, not only did the Agency fail to suggest any alternatives, but it proceeded to blame Complainant for the alleged breakdown in the interactive process when he did not respond with more alternatives, in what would have been his third submission. It is not surprising that Complainant described the process to obtain a reasonable accommodation for his disability as on that "created additional stress because I did everything I was asked to do to receive the accommodations and it was all denied - which was highly discouraging and made me feel hopeless and unsupported." Performance Evaluation In claim (2), Complainant alleges that he was discriminatorily given an "unsuccessful" performance rating for 2014. Complainant attested that he received "successful" ratings for 2011, 2012, and 2013, but in 2014 his performance declined due to the actions of his supervisor which exacerbated his PTSD. In its decision, the Agency reasoned that Complainant was given an "unsuccessful" because he was performing below standards. According to the Agency, as early as January, Complainant was not meeting performance measures. He was monitored, provided ample feedback, and eventually placed under a 100% audit. Reasoning that it did not "refer or blame" his PTSD, the Agency concluded that the performance rating was not discriminatory. The instant record contains numerous emails from Complainant's first-level supervisor (hereinafter "Supervisor") and second-level supervisor (hereafter "Manager") regarding specific concerns and errors in his work product throughout the year. We note, however, that some of these emails followed Complainant's September 2014 request for reasonable accommodations. In an October 16, 2014 email from Manager to Complainant, regarding Complainant's problems and audit with Supervisor, Manager states: "You need to remain focused on adjudication and avoid distractions. Please focus on your work ...." Additional communication from October 2014 notes "areas of concern related to focus and attention to details." Complainant is advised to take a single batch, rather than multiple batches as he had been doing. On November 3, 2014, Complainant emailed Manager, explaining "I need to concentrate on my work and its accuracy which is why I am asking for this reasonable accommodation to wait until the end of the day [for feedback]." Manager replied by stating that she wanted to help improve Complainant's performance but "I have not been informed that you are in need of a reasonable accommodation." The record, however, shows that Complainant submitted a written request for a reasonable accommodation almost two months earlier. Moreover, the major life activities that are impacted by Complainant's PTSD, for which she was seeking a reasonable accommodation, are the same skills identified repeatedly by her supervisors as needing improvement (i.e. focus, concentration, avoiding distractions). Therefore, we find that at least a portion of Complainant's 2014 "unsuccessful" performance rating was the direct result of the agency's failure to provide Complainant with a reasonable accommodation. By issuing the "unsuccessful" rating, the Agency penalized Complainant for its failure to provide him with a reasonable accommodation that could have enable him to perform the essential functions of his position. Hostile Work Environment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of the Rehabilitation Act must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). In claim (3), Complainant contends management subjected him to a hostile work environment. He alleges that he was held to a higher standard and increased scrutiny. Based on a review of the instant record, we do not find that the alleged incidents were sufficiently severe or pervasive to create an objectively hostile work environment. Therefore, we agree with the Agency's decision that Complainant failed to show by a preponderance of the evidence that he was subjected to discriminatory harassment based on his disability. CONCLUSION Accordingly, the Agency's decision finding no discrimination in claims (1) and (2) is hereby REVERSED and the matters are REMANDED as set forth in the Order below. The Agency's finding of no discrimination in claim (3) was proper and is AFFIRMED. ORDER (1) With the guidance provided by this decision, the Agency is directed to immediately take all steps necessary in accordance with the Commission's regulations, including meeting with Complainant, to provide him with effective reasonable accommodation to allow him to perform the essential functions of his position. (2) Within thirty (30) calendar days of the date this decision is issued, the Agency shall rescind the unsuccessful rating on Complainant's 2014 performance appraisal and expunge it from his official personnel file and any other relevant agency files. (3) Within thirty (30) calendar days of the date this decision is issued, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993) in support of his claim for compensatory damages within forty-five days (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. 1614.110. (4) Within sixty (60) calendar days of the date this decision is issued, the Agency is directed to conduct a minimum of eight hours of training for Complainant's supervisors, managers, and the employees of DRAD involved with Complainant's request for a reasonable accommodation. The training shall address the Agency's responsibilities with respect to reasonable accommodation requests. POSTING ORDER (G0617) The Agency is ordered to post at its Detroit Passport Agency 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations February 22, 2018 __________________ 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 We modify the Agency's numbering of claims (claim "(2)(a)" as (2) and claim "(2)(b)" as claim (3)) for the purposes of clarity. 3 When the above claims were accepted for investigation, the Agency also dismissed two additional claims for untimely Counselor contact. Complainant alleged (1) he was placed on a 100% desk audit and (2) he was issued a Letter of Reprimand. According to the Agency's April 16, 2015 partial dismissal, Complainant "had knowledge" of these discriminatory actions in April 2014, but did not contact an EEO Counselor until February 3, 2015. Complainant does not raise the dismissal of these claims on appeal. We therefore shall exercise our discretion and not consider such matters in the instant appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160352 13 0120160352