U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Whitney G.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 0120162460 Hearing No. 450-2014-00174X Agency No. HS-TSA-01888-2013 DECISION JURISDICTION On July 22, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 24, 2016 final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency's final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Master Transportation Security Officer (TSO)-Behavior Detection Officer2 (BDO) at Dallas-Fort Worth International Airport in Dallas, Texas. Complainant began working for the Agency as a TSO in 2002 and was promoted to the BDO position in 2007. At the time of events giving rise to this complaint, Complainant's first-line supervisor was a Transportation Security Manager (TSM)-BDO (S1), and his second-line supervisor was a Deputy Assistant Federal Security Director (DASFD, S2). Complainant stated that he injured his lower back in 2005 at work and that he continued to have flare ups of his back condition throughout his employment with the Agency. According to Complainant, his back injury is permanent. Complainant averred that he took medication during his back flare-ups that prohibited him from driving or operating heavy machinery because it made him drowsy. In early 2013, Complainant was hospitalized and diagnosed with anemia from an unknown source. Complainant stated that he took iron supplements, which resolved the anemia. Complainant averred that these conditions did not interfere with his ability to perform his BDO duties. Complainant stated that he first applied for Family and Medical Leave Act (FMLA) leave for his back condition and the side effects of the medication in 2011. Complainant renewed his FMLA request for his back condition in 2012 and 2013. Complainant applied for FMLA for his anemia in January 2013. On March 28, 2013, the Agency approved Complainant's FMLA request for anemia, for up to three episodes a month, each lasting one day, and two medical appointments per year. On March 28, 2013, the Agency also approved Complainant's FMLA request for his back condition, for up to four episodes a month, each lasting one day, monthly medical appointments, and authorization to work a reduced work schedule. On April 5, 2013, Complainant requested eight hours of FMLA leave for May 11, 2013, which was a Saturday. On April 23, 2013, S2 denied the request and asked for an explanation. S2 stated that she denied the request because Complainant requested FMLA for his 3:00 p.m. to 11:30 p.m. shift on a Saturday, when doctor's offices would not be open. On April 23, 2013, Complainant resubmitted the request, noting that it was for a medical appointment. According to Complainant, he had a fasting blood test scheduled for the morning of May 11, 2013, and needed the rest of the day to recover. Complainant stated that on May 10, 2013, he noticed that no action had been taken on his resubmitted request, so he contacted S1.3 Complainant stated that he met with S2 on May 10, 2013. Complainant alleged that S2 asked him if his medical condition was serious, why he could not have scheduled the appointment for one of his days off, and why the appointment was on a Saturday. S2 denied asking about Complainant's medical condition. According to S2, she asked Complainant for an explanation of why he had made a request, five weeks in advance, for eight hours of FMLA leave on a Saturday afternoon. After the meeting, S2 approved Complainant's FMLA request. Complainant stated that on July 16, 2013, a TSM-BDO (S3) called him into a meeting and presented him with a memorandum from the AFSD for Screening (S4). The memo placed Complainant on a paid administrative leave status, effective immediately. While on Administrative Leave, Complainant reported to the Administrative Officer (A1). According to S4, he placed Complainant on administrative leave because A1 notified him that Complainant might not be medically qualified for his position. A1 stated that on July 16, 2013, he received an email from a Headquarters Human Resources Coordinator (HR1), which attached a letter from a Federal Occupational Health (FOH) physician (DR1). According to HR1, a DFW Human Resources Specialist (HR2) contacted him in May 2013 regarding the medical conditions for which Complainant requested FMLA leave and requested FOH review as to whether these conditions could adversely affect his fitness for duty as a BDO. DR1's letter found that, based on the medical documentation Complainant provided to substantiate his FMLA requests, Complainant was not medically qualified for a TSO position because of his unresolved anemia and because he had a disorder of the lumbar spine that was symptomatic in the past year. The record contains an August 6, 2007, document entitled "Medical Guidelines for Transportation Security Officers." According to this document, a history of lumbar spine injury is a disqualifying condition for TSOs if there is no history of surgery and the condition has been symptomatic in the past year. The document also states that if a diagnosis of anemia is of unknown origin, the anemia can be a disqualifying condition if it interferes with the performance of TSO job duties. Complainant averred that on July 18, 2013, S1 called him and told him to attend a meeting on July 19, 2013. On July 19, 2013, S1 issued Complainant a notice of proposed removal for failure to meet the medical qualifications for a TSO position. On July 26, 2013, Complainant responded to the proposed removal. As part of his response, Complainant provided additional medical evidence, including a July 23, 2013, doctor's note indicating that Complainant was "fully discharged" from treatment for anemia. Complainant also noted that his back issue was the result of an on-the-job injury. In his response, Complainant indicated that he was revoking his requests for FMLA leave for both anemia and the back condition. On July 31, 2013, Complainant returned to work from administrative leave and was assigned to work in the uniform shop. The first notice of proposed removal was rescinded after Complainant provided additional medical evidence. HR1 stated that he submitted Complainant's additional medical evidence to FOH on July 30, 2013. On August 15, 2013, DR1 notified HR1 that Complainant should still be medically disqualified because the additional medical evidence did not describe the source of the anemia and did not address Complainant's back issue at all. On August 20, 2013, S1 issued Complainant a second notice of proposed removal for failure to meet the medical qualifications for a TSO position. Complainant responded to this proposed removal on August 27, 2013. Complainant stated that on September 13, 2013, A1 called him while he was at work and asked him if he had filed an EEO case against S1. A1 stated, "I do not recall asking the complainant if he filed an EEO complaint against a TSM." Report of Investigation (ROI) at 592. Complainant alleged that he asked why A1 wanted to know and A1 said that he had been contacted by the EEO Office. Complainant averred that A1 said that S1 had nothing to do with proposed removal and that A1 and S2 were behind the proposals. According to Complainant, he told A1 that he would drop the complaint if A1 put that in writing, but A1 "stated he would not put it in writing and told me to do what I had to do." ROI at 520. S1 denied "ever trying to intimidate the complainant." ROI at 592. A Human Resources Specialist (HR3) stated that she was present at a July 2013 meeting between A1 and Complainant to discuss his administrative leave placement and the FOH process. According to HR3, Complainant said that he might have received the notice of proposed removal because he had filed an EEO complaint against S1, and A1 said, "you did, [sic] I did not know you filed an EEO." ROI at 544. Complainant averred that on September 18, 2013, a TSM (S5) called him into his office and issued him a removal decision letter from S2, which removed Complainant from federal service for failure to meet the medical guidelines for the TSO position. According to S2, as the deciding official, she removed Complainant because of FOH's determination that Complainant did not meet the medical qualifications for the TSO position. Complainant appealed his removal to the Agency's Office of Professional Responsibility Appellate Board. On December 16, 2013, the Appellate Board upheld Complainant's removal. On July 8, 2013, Complainant contacted an EEO Counselor and filed a formal EEO complaint on October 10, 2013, alleging that the Agency discriminated against him on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. On an unspecified date, S2 questioned him and then denied his April 5, 2013, request for FMLA leave; 2. On July 16, 2013, he received a memo from S4, placing him on paid administrative leave; 3. On July 19, 2013, S1 issued him a notice of proposed removal for failure to meet the medical qualifications of the TSO position; 4. On August 20, 2013, he received another notice of proposed removal; 5. On September 13, 2013, A1 asked if he filed an EEO complaint against S1; and 6. On September 18, 2013, he was terminated. At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a summary judgment decision finding no discrimination. The AJ concluded that Complainant failed to establish that he was subjected to a hostile work environment when S2 asked for additional information regarding his FMLA request. The AJ found that Complainant failed to raise a genuine issue of material fact regarding FOH's determination that he was not medically qualified for his BDO position. The AJ determined that there was no evidence that the Agency failed to accommodate Complainant. Regarding A1's alleged conversation with Complainant about his EEO complaint, the AJ found that the conversation was "ill-advised" but that it did not constitute reprisal. The Agency's final order fully implemented the AJ's decision. CONTENTIONS ON APPEAL On appeal, Complainant contends that he established a prima facie case of disparate treatment and hostile work environment disability discrimination because he was qualified for his BDO position, noting that he held the position from 2007 until his removal. Complainant argues that his back injury only caused occasional pain and that the pain medication that he took did not affect his ability to work. Complainant also argues that his anemia was temporary. Complainant contends that he also established a prima facie case of reprisal. Complainant requests that the matter be remanded for a hearing on the merits. In response to Complainant's appeal, the Agency contends that Complainant was not medically qualified for his BDO position based on the standards established under the authority of the Aviation and Transportation Security Act (ATSA), which are not subject to review under the Rehabilitation Act. The Agency argues that the AJ properly found that there were no genuine issues of material fact. The Agency requests that its final order be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a summary judgment decision, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). The Relationship Between the Rehabilitation Act and the ATSA The Agency maintains that Complainant was not qualified for the BDO position because he did not meet the medical qualification standards it contends are mandated by the ATSA. Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001, in order "to improve aviation security" by effecting "fundamental change in the way [the United States] approaches the task of ensuring the safety and security of the civil air transportation system." H.R. Conf. Rep. No. 107-296 at 1, 49 (2001), reprinted in 2002 U.S.C.C.A.N. 589, 590. Toward that goal, Congress created a new Agency, the TSA, with sweeping responsibility for airport security screening, including setting the qualifications, conditions, and standards of employment for airport security screeners. 49 U.S.C. § 114. Section 111(d) of the ATSA, codified as a note to 49 U S.C. § 44935 states that: Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms. and conditions of employment of federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions 49 U.S.C. § 44935 note, 115 Stat, at 620. Apart from basic mental and educational requirements, the statute requires that security screeners "possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor stills." 49 U.S.C. § 44935(f)(1)(B). These skills include the ability to "efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing." 49 U.S.C. § 44935(e)(2)(A)(iv). The ATSA also provides that "at a minimum [a security screener must] meet such other qualifications as the Under Secretary may establish." 49 U.S.C. § 44935(e)(2)(A). Nevertheless, the Commission has held that the ATSA does not divest the Commission of jurisdiction over a complaint brought by a TSO against the Agency under the Rehabilitation Act or other statutes the Commission enforces. Kimble v. Dep't of Homeland Security, EEOC Appeal No. 0120072195 (Nov. 24, 2009). While Congress gave the Agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from § 501 of the Rehabilitation Act and the other employment discrimination laws. Chapman v. Dep't. of Homeland Security, EEOC Appeal No. 0120051049 (Aug. 6, 2008), req. for recon. den'd, EEOC Request No. 0520080805 (Dec. 11, 2008); Adams v. Dep't. of Homeland Security, EEOC Appeal No. 0120054463 (Aug. 31, 2007); Getzlow v. Dep't. of Homeland Security, EEOC Appeal No. 0120053286 (Jun. 26, 2007), req. for recon. den'd, EEOC Request No. 0520070839 (Oct. 12. 2007). Accordingly, the Commission has authority to hear complaints under the Rehabilitation Act involving TSO positions. Id. Moreover, in Getzlow, the Commission found that although a complainant must show that he meets standards established pursuant to the ATSA to be qualified under the Rehabilitation Act, not all of these standards will conflict with the Rehabilitation Act. Getzlow, EEOC Appeal No. 0120053286. The Agency must comply with the requirements of the Rehabilitation Act where there is no conflict between the qualifications established pursuant to the ATSA and the requirements of the Rehabilitation Act. Id. However, if a conflict exists between the two standards, the standard will supersede any Rehabilitation Act requirements to the contrary. Id. Reprisal Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). On the one hand, petty slights and trivial annoyances are not actionable. On the other, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation at II.B. Given the importance of maintaining "unfettered access to [the] statutory remedial mechanisms" in the anti-retaliation provisions in Title VII, which apply to the Rehabilitation Act, our cases have found that a broad range of actions can fall into this category. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). For example, we have held that a supervisor threatening an employee by saying "What goes around, comes around" when discussing an EEO complaint constitutes an adverse action. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), request for recon. denied, EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found that a supervisor attempting to counsel an employee against pursuing an EEO complaint "as a friend," even if intended innocently, is an adverse action. Woolf v. Dep't of Energy, EEOC Appeal No. 0120083727 (June 4, 2009) (violation found when a labor management specialist told the complainant, "as a friend," that her EEO claim would polarize the office). Summary Judgment We must determine whether it was appropriate for the AJ to have issued a summary judgment decision on this record. The Commission's regulations allow an AJ to issue a summary judgment decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a summary judgment decision is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a summary judgment decision only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a summary judgment decision. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for summary judgment). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (February 24, 1995). After a careful review of the record, we find that the AJ erred when she concluded that there was no genuine issue of material fact in this case. In finding no discrimination with respect to Complainant's claim that A1 discriminated against him based on reprisal when he questioned Complainant about his EEO complaint, the AJ appears to have relied on HR3's account of the discussion between Complainant and A1 rather than viewing the evidence in the light most favorable to the non-moving party at the summary judgment stage. We find that, viewing the evidence in the light most favorable to Complainant, this claim states a prima facie case of reprisal. Therefore, examination under oath of Complainant, A1, and HR3 is required for the AJ to make credibility determinations and assess the full context of the conversation. Moreover, the AJ overlooked the close temporal nexus between A1's September 13, 2013, conversation with Complainant about his EEO complaint and Complainant's September 18, 2013, termination. The close temporal nexus raises a strong inference of reprisal with respect to Complainant's termination. Further development of the record is required to assess whether the Agency's proffered legitimate, nondiscriminatory reasons for Complainant's termination are pretextual. We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In summary, there are simply too many unresolved issues which require further development of the record and an assessment as to the credibility of the various management officials, other witnesses, and Complainant himself. Therefore, judgment as a matter of law for the Agency should not have been granted.4 CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and REMANDS the matter for further processing by the Agency in accordance with this decision and the ORDER below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Dallas District Office Hearings Unit within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing on Complainant's disability and reprisal claims and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 5-9-18 __________________ 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 stated that his position title was Behavior Detection Officer. However, the record reflects that his full position title was Master Transportation Security Officer-Behavior Detection Officer and that the position was in the TSO series. 3 According to the record, S2 approved Complainant's resubmitted FMLA request on May 8, 2013. 4 Although this decision specifically focuses on the aspects of Complainant's reprisal claims that require further development of the record, we are remanding Complainant's entire complaint, including his disability discrimination claims, for a hearing. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162460 11 0120162460