U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roderick P.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120161268 Agency No. 200P04362013100887 DECISION Complainant timely appealed to the Employment Opportunity Commission ("EEOC" or "Commission"), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's November 17, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was working as a Medical Service Assistant, GS-5, at the VA Medical Center in Fort Harrison, Montana. On January 11, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (African-American) when: 1. in December 2012, his supervisor ("S2") informed him that effective December 31, 2012, his tour of duty would change to begin at 7:30 am instead of at 7:00 am; 2. on January 3, 2013, he was issued a Notice of Termination During Probation, effective January 11, 2013; 3. from on or around July 30, 2012 through January 3, 2013, he was subjected to ongoing harassment/hostile work environment by S2;2 4. from on or around June 22, 2012 through January 3, 2013, he was subjected to ongoing harassment/hostile work environment by his coworker ("C1"), who, among other things, hit the panic button and summoned Agency police to their workstation in July 2012 because she was "afraid" of Complainant, then subsequently moved to sit next to him. At the conclusion of its 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"). Complainant requested a hearing, but he did not respond during the pre-hearing process, so the AJ dismissed his request and remanded the matter to the Agency for a final decision pursuant to 29 C.F.R. § 1614.110(b). Based on the record developed during the investigation, we have determined the following facts: On January 17, 2012, Complainant was hired as a Medical Service Assistant ("MSA" or "clerk") in the Outpatient Window Office, subject to a two-year probationary or trial period..3 Complainant previously worked in the facility as a Greeter through the VA Patient Compensated Work Therapy program, and was recommended for the MSA position by his Vocational Rehabilitation Specialist (White/Native American). ROI Ex. B-5. Complainant was the only African-American employee working in the office. ROI Ex. B-5. As an MSA, Complainant provided customer service to patients by scheduling appointments and answering questions face-to-face and by phone. ROI Ex. B-1, C-5, C-6, C-8. The Supervisor of Health Administration ("S1") (Caucasian), who was Complainant's first level supervisor for four months of his tenure, described him as an "exemplary employee" who she would hire again if it were up to her." ROI Ex. B-4, B-5. She said Complainant was a hard worker, who always arrived early, and it was not uncommon for veterans to line up outside Complainant's window or ask for him by name when calling to make an appointment. ROI Ex. B-1, B-4, and B-5. To ensure coverage, MSAs were required to schedule their breaks in advance and could not take a break unless there was sufficient coverage to "hand off" their assignment to another MSA while they were away. Complainant's coworker ("C1") (Caucasian) set the schedule for breaks with supervisor approval. ROI C1-10. Complainant testified that C1 was "constantly riding [him], screaming at [him] whenever [he was] late going on break," even when he was busy helping a patient. ROI Ex. B-1 Tr. 35. Another coworker (Hispanic/white) ("C2"), stated that on two occasions, C1 commented in his presence that Complainant "only got his job because he is black" and that she was afraid of Complainant because "he was a big black man." Ex. B-2. On June 22, 2012, C1 hit the "panic button," summoning Agency police for what the responding officer described as an "ongoing" conflict between Complainant and C1 about clerk breaks. ROI Ex. C-10. The police report includes signed statements from Complainant, C1, C2, and another MSA ("C3") (Caucasian). ROI Ex. C-10. According to the report, C1 instigated the dispute by invading Complainant's personal space and confronting him about returning late from his break that morning. ROI Ex. C-10. C1's statement confirms that she knew Complainant might be late because C2 instructed him to get the mail, and she was still able to visit the canteen and restroom before Complainant returned. Complainant ran into an IT employee who could fix a software issue he was having. Complainant told C1 not to speak with him about breaks ever again and he said he was not going to take any more breaks. Both C1 and C3, who was working at the window between Complainant and C1, heard Complainant calling C1 names under his breath and reference a problem with a coworker to the veteran he was assisting over the phone. ROI Ex. C-10. C1 told Complainant to "shut up," or she would hit the panic button. C2 observed that throughout the exchange, "Complainant stayed calm and never once raised his voice or moved from his chair." ROI Ex. C-10. According to C2 and another MSA coworker ("C4") (Caucasian), this incident was the only time C1 ever pressed the panic button during a verbal altercation with a coworker. C1's statement in the police report explains that she pushed the button because Complainant was "disruptive" to her and C3. ROI Ex. C-10 She also stated that she was afraid of Complainant, who had become "agitated," reasoning that she did "not know [Complainant] that well nor did [she] know what he was capable of when angry." ROI Ex. C-10. The other witness statements and the responding officer's account do not reflect that Complainant had acted in an agitated manner. ROI Ex. C-10. By then, S1 was no longer supervising the MSAs, so an interim supervisor resolved the matter by meeting individually with Complainant, C1, C2, and C3, and removing C1 from the work area for the rest of the day, and for the following two days. The Agency notes in its final decision that no administrative/disciplinary action was taken against Complainant. C1 returned to the Outpatient Window Office after the panic button incident, she chose to sit next to Complainant, despite previously stating she was afraid of him. On or about July 31, 2012, the Nurse Manager for Ambulatory Care (Caucasian) ("S2"), became Complainant and C1's first level supervisor, as part of an MSA reorganization. S2 describes her relationship with Complainant as "positive," noting that when she became his supervisor, she noticed Complainant was a GS-4, and he was qualified to be a GS-5, so she followed through "with HR staff immediately to assure he was given the same [grade] as the other staff in this same position as soon as I found he had met the said requirements." C4 recounts that after the panic button incident, C1 "continually monitored when [Complainanat] went on break, how long he took, who he was talking to, what he was looking at on his computer." ROI Ex. B-3. Complainant met with Human Resources staff on October 26, 2012, to request a reassignment based on the difficulties he describes with S2 and C1. He also tried to obtain assistance through the union, and met with his Vocational Rehabilitation Specialist, stating he felt "isolated" and "targeted" by S2 and C1. ROI Ex. B-5. On December 10, 2012, S2 held a staff meeting with union officials present, to discuss, among other things, tours of duty. It was agreed that only one MSA was needed for the 7:00 am shift due to workloads and patient flow. Complainant had worked the 7:00am shift since he was hired, but C1 had the shift before and wanted it back. Neither Complainant nor C1 wanted to switch to the next-earliest tour, which started at 7:30 am. While C1 was amenable to a rotation where she and Complainant would trade start times every six months, Complainant was adamant that he wanted to keep his schedule. The next day, S2 informed Complainant and C1 that, beginning December 31, 2012, C1, who had higher seniority than Complainant, would start at 7:00 am, and Complainant would start at 7:30 am, for a six-month rotation. On January 3, 2013, S2 provided Complainant with a Notice of Termination During Probation, for "failure to follow supervisory instructions; and inappropriate/unprofessional conduct." The notice states that S2 advised Complainant in writing about these issues on October 26, 2012, and on December 3, 10, 14, 17 and 18, 2012. Corresponding documentation in the record includes a Memorandum of Verbal Counseling addressing violation of leave policies and an instance of "improper communication" to a coworker, and emails from the Nurse Navigator asking S2 to intervene with Complainant, who-despite being instructed not to-scheduled patients during walk-in hours, sent patients for flu procedures, and cut and pasted information into the wrong patient's file multiple times. ROI Ex. C-8, C-9, C-12. There are also emails between S2, Complainant, and the Union President, supporting S2's statements that Complainant refused to meet with her or did not respond to her requests to meet. ROI Ex. C-8, C-9. The Agency's final decision concluded that Complainant had not been subjected to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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"). Claims 1 and 2: Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (Jun. 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (Jun. 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the Agency has articulated legitimate, nondiscriminatory reasons for its actions, supported by evidence in the record. For Claim 1, Complainant acknowledges that he has less seniority than C1, and that seniority can be a legitimate reason for awarding a preferred shift to one employee over another. ROI Ex. B-1 Tr. 43. However, he contends that in this case, S2 was only relying on seniority as pretext for providing C1 with the 7:00am shift, because C1 and S2 were "buddies" and "anything C1 wanted, C1 got." Tr. p. 42. Complainant appears to argue that C1 forfeited the 7:00am shift due to her "incompetence." He contends that he was "handed" the 7:00am shift when he was hired because C1 had been temporarily "removed" due to her alleged incompetence as an MSA Lead, and has witnessed firsthand C1 "intentionally not do her job over and repeatedly." ROI Ex. B-1, Tr. 34, 44. Moreover, Complainant asserts that at the Union President's suggestion, the MSAs took a vote during the December 10, 2012 meeting on whether Complainant should keep the 7:00am shift, all five MSAs other than C1 raised their hands in his favor. Notwithstanding the lack of evidence to support these assertions, Complainant's arguments do not establish that S2 was motivated by racial discrimination when she awarded C1 the first 7:00am shift rotation. For Claim 2, Complainant argues that C1 has engaged in the same conduct the Agency references in the January 3, 2013 notice, as the reason for its decision to terminate his employment during his probationary period, yet C1 is still employed. ROI Ex. B-1. However, the Commission has long held that where a complainant is a probationary employee, he or she is subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. See Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084 (Jul. 11, 2017) citing Complainant v. Dep't of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015) (other citations omitted). On the effective date of his termination, Complainant was almost halfway into his 2-year trial period, still subject to the provision that he would be terminated if his performance was not satisfactory. ROI Ex. C-4. There is no evidence in the record that C1 was also a probationary employee. Given his probationary status, there is no expectation that Complainant and Cl would be subject to the same disciplinary action, even if they committed the same infraction. Although S2 initiated Complainant's termination, a signed affidavit by a representative of Human Resources states that she reviewed and authorized S2's request. ROI Ex. B-7. Finally, as with Claim 1, Complainant has not offered direct evidence that S2 acted with discriminatory motive. Claim 3: Supervisor Harassment/Hostile Work Environment It is well-settled that harassment based on an individual's race is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). To prove his harassment claim, Complainant must establish that he was subjected to conduct that was so severe or so pervasive that a "reasonable person" in his position would have found the conduct to be objectively hostile or abusive. See Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Complainant must also prove that the conduct was taken because of his race. Only if Complainant establishes both of those elements--hostility and motive--will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). The Agency framed Complainant's harassment/hostile work environment allegation based on the five harassment claims he raised in his March 25, 2013 Letter of Acceptance. S2 was named as the responsible management official in four of the allegations, including the allegations in Claims 1 and 2 of this complaint, which we decline to further analyze as Complainant was unable to establish S2 acted with a discriminatory motive. ROI Ex. A-6. We find that a "reasonable person" would not find the other two claims naming S2 so objectively hostile and abusive as to constitute harassment, even when considered together. Specifically, his claim that "on December 26, 2012, two of his coworkers engaged in religious rhetoric which almost erupted into a fist fight right behind him," describes an isolated incident involving coworkers not named herein, and where S2 took immediate and appropriate corrective action to prevent reoccurrence. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 05940481 (Feb. 16, 1995). Complainant also alleged that "on November 29, 2012, S2 accused him of not reporting for scheduled meeting of which he had not been informed, and then wanted him to call and apologize to a patient, but could not tell him who the patient was. Based on our review of the record, Complainant had the resources to obtain the patient's information, but chose not to, as he did not agree with S2's instruction. Warranted or not, it is undisputed the patient lodged a formal complaint against Complainant. Additionally, S2 emailed Complainant multiple times, attempting to meet, stating that she had already personally apologized to the patient herself, and explaining the seriousness of this particular incident, as the patient terminated her care with the facility. In sum, we conclude that the evidence of record does not establish that Complainant was harassed by S2 due to his race. Claim 4: Coworker Harassment/Hostile Work Environment In a case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). See Jones v. Dep't of Labor, EEOC Appeal No. 01A41672 (Oct. 22, 2004) (management official's failure to address an ongoing tense situation between the complainant and a co-worker based on her protected class stated a claim under Title VII). In his formal complaint, Complainant alleged that "in July 2012 [C1] hit the panic button and summoned Agency police to their workstation in July 2012 because she was "afraid" of him, then subsequently moved to sit next to him. However, we have broadened this claim to include "like and related" instances of harassment by C1, which Complainant raised during the investigation, and are supported by witness affidavits.4 A later allegation/claim is "like or related" to the original complaint if it adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (Jun. 27, 2014); referencing Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). Here, C1's alleged excessive monitoring, nitpicking, singling out, and provocation of Complainant, discussed in his testimony provided during the investigation, is like or related to the panic button incident. Complainant testified that C1 was "constantly riding [him], screaming at [him] whenever [he was] late going on break," even when he was busy helping a patient. C2 observed that whenever C1 arrived at the office and Complainant was there, she would "find a way to talk about something that would upset [Complainant]" such as telling him to do someone else's work, or take long breaks so that Complainant would have to miss his breaks. ROI Ex. B-2. C4 confirms that C1 treated Complainant worse than "everybody else." He said that C1 was "in [Complainant's] business every chance she got, 'corrected' everything Complainant did." ROI Ex. B-3. As already noted, C2 stated that on two occasions, C1 commented in his presence that Complainant "only got his job because he is black" and that she was afraid of Complainant because "he was a big black man." Ex. B-2. C1's disproportionate reaction of pressing the panic button, along with her prior comments concerning Complainant's race, are sufficient to establish discriminatory motive of C1's part. See, e.g. Ferebee v. Dep't of Homeland Sec., EEOC Appeal No. 0720100039 (Apr. 24, 2012) (finding an employee's decision to summon police where there was no evidence that the complainant threatened to physically or verbally harm her could not be explained by anything other than her fear of him because of his race and sex). C1's statement in the police report, that she "became afraid that [Complainant] was going to come over [to her] and start swinging" (ROI Ex. C-10) is not reasonably credible as Complainant and the two witnesses to the event stated that he was seated the entire time and did not threaten C1. Complainant also stated that C1 would "go off" about President Obama and "really turned up the pressure," after President Obama was reelected in November 2012 repeatedly saying, "oh now we got to deal with him" in a way that Complainant understood meant it had to do with race. ROI Ex. B-1 Tr. 39. We further find Complainant successfully established that management officials knew or should have known about C1's harassment and failed to take immediate and appropriate action. Management was clearly aware of the panic button incident, including receiving the responding police officer's report, and the only reaction appears to have been to allow C1 to take several days off work. The responding officer's report states that Complainant said he "no longer wanted any interaction with [C1]." ROI Ex. C-10. Further, the record indicates that Complainant met with staff from Human Resources, as well as the Union, seeking assistance in gaining reassignment away from C1. However, the record does not indicate that there were any efforts to separate Complainant and C1 or otherwise prevent further harassment. In fact, the record shows that after C1 returned to work following the panic button incident, she chose to sit right next to him, although there were apparently other seats to choose from. Given the Agency's inaction in addressing Complainant's concerns with C1, we find sufficient basis to hold the Agency liable for the co-worker harassment. CONCLUSION Accordingly, we AFFIRM the Agency's finding that no discrimination was proven with regard to the claims concerning the change in schedule, the removal during probation, and allegations of supervisory harassment. However, we REVERSE the Agency's finding of no race discrimination with respect to co-worker harassment. The matter is hereby REMANDED to the Agency for further processing in accordance with the following ORDER. ORDER (C0610) The Agency is ordered to take the following remedial action: 1. Conduct a supplemental investigation within 90 calendar days of the date this decision is issued, to determine whether Complainant is entitled to compensatory damages, and if so, the amount of damages Complainant is entitled to under Title VII of the Civil Rights Act. a. Notify Complainant of his right to submit objective evidence based our guidance in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993))5 and request objective evidence from Complainant in support of compensatory damages (providing an option and instructions to request an extension in the case of extenuating circumstances); b. Issue a determination on the results of the investigation to Complainant with appeal rights; and c. Pay Complainant the determined amount of compensatory damages within 30 calendar days of the date of the determination, explain to Complainant that he may accept the award and still appeal to this Commission if he disagrees with the outcome. 2. Consider taking appropriate disciplinary action against C1, within 60 calendar days of the date this decision is issued. Training does not count as disciplinary action. The Agency shall report its decision to the EEOC 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 C1 has left the Agency, the Agency shall furnish documentation of their departure date(s). 3. Provide at least 3 hours of one-on-one in-person training for C1, within 30 calendar days of the date this decision is issued. This single training session can be prepared/provided by an Agency employee or contractor with subject matter expertise to: (1) explain this decision and what, if anything, C1 should do differently if presented with a similar scenario; (2) discuss bullying and microaggressions as they relate to racially motivated harassment; and (3) explain 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. If C1 has left the Agency, the Agency shall furnish documentation of her departure date. 4. Provide at least 2 hours of training to S2 and the Human Resources staff involved in this matter, within 60 calendar days of the date this decision was issued, concerning the Agency management's responsibilities to proactively prevent harassment of employees. 5. Post the attached Notice, in accordance with the "Posting Order" below. 6. Submit a Report of Compliance, as provided in the "Implementation of the Commission's Decision" section below. The Report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Fort Harrison Medical Center in Fort Harrison, Montana 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 S1ll 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 S1ll 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 (S0610) 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. 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 March 23, 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 Complainant's harassment/hostile work environment claim has been reframed to encompass like and related allegations raised during his statements taken during the investigation. 3 Complainant was employed through a program that allowed the Agency to noncompetitively appoint him to his position for a 2-year "trial-period," with potential for a noncompetitive conversion to career employee status. ROI Ex. C-4. During this trial-period, Complainant's employment "would be terminated" if his performance was not "satisfactory." ROI Ex. C-4. Hiring documents indicate Complainant was also subject to the standard one-year probationary period, which, he had not met by the effective date of his termination. ROI Ex. C-4. 4 The Police Report provides the date of the panic button incident as June 22, 2012. 5 For more information on determining compensatory damages: EEOC Mgt. Directive 110, Ch. 11 § VII (Aug. 5, 2015) available at https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm (provides the types of compensatory damages available under Title VII and "Objective Evidence" of entitlement); and N. Thompson, Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol. XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-1.cfm#article (explains Carle v. Dep't of the Navy under the subsection "Proof of Damages"). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161268 14 0120161268