EEOC Appeal 2020001148

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sandy E.,1
Complainant,
v.
R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.
Appeal No. 2020001148
Hearing No. 520201700154X
Agency No. CRC1501102
DECISION
Following its December 2, 2019, final order, the Agency filed a timely appeal with the Equal
Employment Opportunity Commission (“EEOC” or “Commission”) pursuant to 29 C.F.R. §
1614.403(a). On appeal, the Agency requests that the Commission affirm its partial rejection of
an EEOC Administrative Judge's finding of 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 the Age
Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Massachusetts State
Director, GS-13, in the Agency’s Veterans' Employment and Training Service ("VETS") in
Boston, Massachusetts.
On July 2, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (57) and reprisal for prior protected EEO activity when:
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.

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1. 	On March 31, 2015, he was not selected for the position of Deputy Regional
Administrator, GS-14, (Vacancy Announcement No. MS15HRCVETS115), and,
2. 	On June 17, 2015, management prevented him from being eligible to apply for the
Regional Administrator position by modifying the grade qualifications from a GS
14/15 to a GS-15, a modification that occurred directly after Complainant discussed
this position with management as a remedy for the previous non-selection as
Deputy Regional Administrator.
After its investigation into the complaint, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC Administrative
Judge (“AJ”). Complainant timely requested a hearing. A hearing was held on October 2 and 3,
2019.
The evidence develop during the investigation and the hearing includes the following facts:
In March 2015, Complainant applied for the Deputy Regional Administrator (“DRA”), GS-14
position advertised in Vacancy Announcement No. MS15HRCVETS115. He and two other
candidates (“C1” and “C2”), both VETS State Directors like Complainant, met the technical
qualifications for the DRA position, and were scheduled for interviews.
The Selecting Official (“SO”) was the Regional Administrator for VETS Boston Region, and
Complainant and C1’s second level supervisor. The three panelists that convened to interview the
candidates included Complainant and C1’s first level supervisor, the outgoing DRA from Boston
(“P1”), along with the DRA from Philadelphia (“P2”), and an Employment and Training
Administration (“ETA”) DRA (“P3”). Usually, the panel would be limited to VETS employees,
but P1 included P3 on the panel because SO, who previously worked at ETA, suggested it. P1 and
P2 conducted the interviews in person, while P3 called in. They asked the candidates the same list
of questions, which focused on management, leadership and communication skills, and then scored
each answer between 1 and 5 points.
Complainant expected he would be awarded the DRA position. He was a subject matter expert on
numerous types of grants, and on VETS program administration, having worked at VETS since
2006, and been a state level director since 2011. Because Complainant’s State Office was located
close to the Boston Regional Office, he was “tagged” to take on additional assignments, gaining
regional level experience. Complainant testified that he worked closely with P1 and interacted with
SO regularly. It was Complainant’s understanding, based on the additional assignments, that he
was being groomed to take on the DRA position when P1 retired on March 31, 2015. Complainant
testified that the DRA position “just meant a natural progression to the next job,” as he witnessed
P1 take the same career trajectory starting at the Massachusetts State Director position.
However, SO awarded the position to C1, who received the highest overall score following the
interviews. Complainant scored lowest of all three candidates, with an overall score of 147.5,
compared with C1’s overall score of 162 and C2’s overall score of 158.5.

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The three panelists independently scored each candidate, with P2 scoring Complainant the highest
out of the three. However, P3’s scoring stood out as significantly lower for Complainant than the
other panelists resulting, the AJ found, in Complainant to have the lowest overall score.2 At age
38, C1 was nearly 20 years younger than Complainant, and had been working at VETS for under
a year when SO promoted him to DRA to replace P1.
On October 23, 2019, the AJ issued a bench decision, finding that the Agency was liable for age
discrimination under the ADEA with respect to Claim 1, but not Claim 2. The AJ also found that
Complainant was unable to establish that he had been subjected to reprisal for engaging in
protected EEO activity pursuant to the ADEA and Title VII.
The Agency issued a Final Order partially adopting the AJ’s finding as to Claim 2 and appealed to
this Commission to affirm its rejection of the AJ’s finding of age discrimination in Claim 1.
Simultaneously, the Agency filed the instant appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 	Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).
As a preliminary matter, Complainant did not challenge the Agency’s adoption of the AJ’s finding
that Complainant was unable to establish that the Agency was motivated by reprisal for prior EEO
activity in violation of Title VII for either of his claims. Also, Complainant did not challenge the
AJ’s finding that he was unable to establish that the legitimate non-discriminatory reason the
Agency provided for Claim 2 was pretext for age discrimination under the ADEA. 	Having
reviewed the record, we agree with the AJ’s findings on these matters. Therefore, we will only
address Claim 1 for the remainder of this decision.
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).
2 P2 scored Complainant with 57 points and P1 with 53 points, while P3 gave Complainant a
considerably lower score of 37.5.

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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 on the basis of a prohibited reason. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502 (1993).
To establish a prima facie case of age discrimination under the ADEA, a complainant must show
that he was over forty years of age, that he was subjected to an adverse employment action, and
that he was treated less favorably than other similarly situated employees considerably younger
than himself. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); O'Connor
v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).
The Supreme Court has held that because the ADEA prohibits discrimination on the basis of age
and not class membership, the fact that a similarly situated comparative is substantially younger
than the plaintiff is a far more reliable indicator of age discrimination than the fact that the plaintiff
was treated differently than someone outside his protected class. 	See O'Connor, at 312; EEOC
Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No.
915.002, at n.4 (Sept. 18, 1996). While there is no bright-line test for what constitutes
“substantially younger,” that term has generally been applied to age differences in excess of five
years. See Hammersmith v. Soc. Sec. Admin. , EEOC Appeal No. 01A05922 (Mar. 6, 2002).
Complainant successfully established a prima facie case for age discrimination under the ADEA.
He and C1 were “similarly situated” as they were both state level directors within the same region,
reported to the same first and second level supervisors, and applied for the same DRA position.
As he was nearly 20 years younger than Complainant, C1 is considered “substantially younger,”
which created an inference of age discrimination when he was selected over Complainant for the
DRA position.
It is well established that the Agency, as the employer, has broad discretion to determine how best
to manage its operations and may make decisions, including personnel decisions, on any basis
except a basis that is unlawful under the discrimination statutes. See Burdine; Furnco. Where, as
here, the alleged discriminatory action is non-selection, pretext may be found where the
complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). 	Otherwise, the Agency may choose among qualified
candidates based on its discretion, provided that the decision is not based upon unlawful criteria.
See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997);
see also Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981) (finding that an employer
has the discretion to choose among equally qualified candidates).

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The Agency’s proffered legitimate non-discriminatory reason for selecting C1 over Complainant
for the GS-14 DRA position was that C1 received the highest combined score from the panel
interview, and it is standard practice for VETS selecting officials is to fill vacancies with the
highest scoring candidate. However, the AJ found that SO improperly placed P3 on the panel to
help ensure someone other than Complainant was selected, with P3’s very low score resulting in
Complainant receiving the lowest combined score out of the candidates. Along with the
circumstances of P3’s participation on the panel, the AJ cites Complainant’s “demonstrably
superior qualifications” than those of the selectee, C1, as evidence that the Agency’s legitimate
non-discriminatory reason was pretext for discrimination. The AJ also pointed to testimony
suggesting SO’s bias against older employees.
This case turns, therefore, on whether the AJ correctly concluded Complainant was able to prove,
by a preponderance of the evidence, that the proffered reason for his non-selection (interview panel
score) was designed to mask the role age bias played in the decision-making.
On appeal, the Agency argues that the AJ improperly substituted her judgement for that of Agency
management on a matters of Agency operations with respect to P3’s presence on the interview
panel, and when, despite his lower scores, she found Complainant to be more qualified than C1
for the position of ADR.
The Agency contends that its inclusion of P3 on the interview panel was consistent with its
guidelines. The Agency’s Recruitment & Selection Best Practices Guide (June 2014) required that
“[t]hose conducting the interview[s] or serving on a panel should be at the grade level being filled
or higher, with knowledge of the position being filled.” P3 met the grade requirement, and,
according to the Agency, he also met the knowledge requirement, explaining that P3 was familiar
with VETS and, as a DRA in a related Agency office, he understood what managerial attributes
were necessary for a successful DRA, regardless of program. The Agency also disputes the AJ’s
characterization of P3 as having a “wholesale lack of [VETS] program knowledge,” and the AJ’s
conclusion that P3’s significantly lower score for Complainant was the reason for Complainant’s
non-selection.
However, multiple witnesses, deemed credible by the AJ, established in their testimony that it was
not typical or appropriate for an individual, such as P3, who did not work at VETS and lacked
military experience, to participate in filling a senior-level VETS position. The Agency offers no
satisfactory explanation for P3’s presence on the panel other than SO wanted him there.
Complainant aptly points out that it was not for lack of nearby VETS GS-14s to conduct the
interview in person, as P3 conducted interviews by phone. P1 testified that he did not believe it
was appropriate to include P3, and he only did so at SO’s insistence. Moreover, the Agency’s
assertion that P1 was responsible for including P3 on the panel (as opposed to SO) is based on
SO’s testimony, which the AJ found was not credible. 	The AJ determined that the evidence
strongly suggested that P3 was placed on the panel by SO in order to ensure Complainant was not
selected. While this deviation from standard practice is not dispositive of discrimination, it does
provide some evidence in support of a finding of pretext.

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With respect to Complainant’s score, P1 and P2 both testified that they asked P3 about the
significantly lower score he gave Complainant after the interview, and learned it was P3’s
frustration with Complainant when he asked questions about Complainant’s achievements in the
past 5 years. Instead, he said Complainant would respond with details about his former 23-year
military career.
With regard to his answer to P3’s questions, Complainant explained that his supervisory
experience as a Director at VETS involved overseeing a staff of three with no budget, so he
mentioned his military supervisory experience in his interview. Specifically, he said he attempted
to explain to the panel that as a Battalion Commander, he was essentially the equivalent of a VETS
Regional Administrator, as he “had a staff of over 150 and a budget of over $3 million.”
Complainant notes that the DRA position he sought oversaw 25 to 30 people. While P3’s own
testimony supports that P3 actively disregarded this information when scoring Complainant’s
interview, it shows that he did credit C1’s far shorter military experience. From his testimony, it
appears P3 was not aware of the implications when Complainant recounted that he had been a
Battalion Commander, whereas a VETS employee would likely have understood that such a title
entailed extensive supervisory experience.
On appeal, the Agency vigorously disputes the AJ’s finding that Complainant’s qualifications were
demonstrably superior to those of C1, aptly citing the Commission’s long held position that a
person’s length of experience does not necessarily mean they are better qualified. Macready v.
Dep’t of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). The Agency states, and the panelists
confirm, that upon being certified as qualified for the position by HR, Complainant, C1, and C2
were considered “equally qualified.” The panel interview was designed to determine the
candidate’s “communication, leadership, and management skills, the critical qualities VETS was
seeking in a DRA.”
The Agency argues that the AJ improperly focused on Complainant’s extensive technical
knowledge relating to various VETS programs compared with C1, as opposed to the skills the
Agency was seeking related to communication, leadership, and management. The Agency points
out that none of the interview questions concerned VETS programs specifically. However, setting
aside Complainant’s subject matter expertise, it should have been clear to the panel that
Complainant’s supervisory experience as a Battalion Commander and at VETS far exceeded that
of C1. Complainant, who served in the military for 23 years, credibly testified that his “whole life
in the military was supervisory… as an officer, as a platoon leader, company command and
battalion commander…[all Complainant did was] supervise and manage soldiers.” As the VETS
State Director for Massachusetts, Complainant managed three employees, while taking on
additional regional responsibilities, whereas C1 managed 1 employee as VETS State Director for
Rhode Island. Although C1’s military experience included leadership roles, having served for
about three years, C1 would not have advanced to a position with management responsibilities as
extensive as that of a Battalion Commander.

2020001148	7
The AJ determined that the SO’s testimony that “subject matter expertise” was unnecessary as the
DRA was purely a leadership position was not credible. She pointed to evidence that C1, after his
selection, was still relying on mentors and other State Directors to perform his job duties. Based
on testimony at the hearing, the AJ pointed out that the DRA “must be knowledgeable about what
the VETS program does, including investigations, which the selectee was not even equipped to do
as he would not have training in this until approximately a year in his position.”
In addition to selecting a candidate “substantially younger” than Complainant, the AJ pointed to
credible testimony suggesting that, in other contexts, SO favored younger employees. The VETS
Director for the New Jersey office (“W1”), who was in her early 60s, testified that she was one of
the oldest VETS employees and directors. W1 testified that over the past 15 years or so, “there
seemed to be more of a tendency to bring in younger people” based on the people she saw hired in
SO’s region. Complainant recounted participating in a regional director’s call led by SO where he
admonished the directors (6 of 8 were age 55 and older) to “think outside the box.” Complainant
testified that, in context, SO meant that Complainant and the other directors were “set in [their]
ways” and that “younger people will look outside the box where older people will not.”
The AJ also considered credible testimony from Complainant and his wife regarding off-putting
comments SO made to them during a work-related dinner, stating that it must be exhausting to
raise a four-year-old daughter “at your age” and mentally calculating, then exclaiming, that
Complainant would be 70 when his daughter graduated high school. SO also asked Complainant
when he was retiring, and Complainant responded that he intended to work for at least ten years
or more. The Agency argues that SO’s age-related comments to Complainant do not indicate
pretext, as they were “stray remarks” made in a social setting a year before the hiring decision.
The Agency discusses our decision in Ottaviano v. Department of Veterans Affairs, EEOC Appeal
Nos. 01900462; 01900463, (Mar. 20, 1990), finding the complainant’s proffered evidence of age
discrimination in a non-selection case constituted “stray remarks” unrelated to the alleged
discriminatory action.
We find the facts in Ottaviano are distinguishable from the instant complaint. The “stray remarks”
in Ottaviano consisted of an instance where the selecting official referred to the employees in one
of the Agency’s offices as “a bunch of old duffers,” and where the selecting official asked the
complainant why he applied for the position when he had talked about retirement and an “early
out.” While the selecting official in Ottaviano asked about the complainant’s retirement because
the complainant made comments indicating he planned to retire soon, here, SO specifically asked
Complainant when he was going to retire, even though Complainant had not raised the topic of
retirement with SO before. SO’s inquiry is further distinguishable because it was specifically
directed at Complainant and made direct comments about his age. In Ottaviano, the “old duffer”
comment was not directed at the complainant. The AJ also specifically found SO’s denials on the
matter were not credible, and concluded SO’s remarks about Complainant’s age and retirement
were suggestive of age bias.

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In sum, based on the combination of evidence concerning the unusual participation of P3 in the
selection panel, that participation occurring solely at the insistence of SO, the significantly lowered
scores given by P3 for Complainant than those awarded by the two other panel members, and
evidence of Complainant’s superior qualifications for the job, as well as some previous comments
made by SO suggesting age bias, we conclude that the AJ’s finding of age discrimination was
supported by substantial evidence of record.
CONCLUSION
Accordingly, we AFFIRM the Agency’s decision to adopt the AJ’s finding that Complainant did
not establish that he was subjected to discrimination as alleged with respect to the basis of reprisal
and with respect to the allegation in Claim 2.
We REVERSE the Agency’s final decision not to adopt the AJ’s finding of age discrimination
with respect to Claim 1, and REMAND this matter to the Agency for further action in accordance
with the following Order:
ORDER (D0617)
The Agency is ordered to take the following remedial action:
1. 	Promotion: Within sixty (60) calendar days of the date this decision is issued (or extended
if both parties agree), the Agency shall issue a written offer to Complainant for a position
equivalent to the Deputy Regional Administrator, GS-14, position advertised under
Vacancy 	Announcement 	No. 	MS15HRCVETS115, 	retroactive 	to 	the 	date 	of
Complainant’s non-selection. The parties are to work together as feasible to locate an
appropriate and comparable position for which Complainant qualifies. The Agency’s
written offer shall provide Complainant with fifteen (15) days from receipt of the offer to
notify the Agency whether he accepts or rejects the equivalent position. Failure to respond
within the 15-day time limit shall be construed as rejection. Any back pay liability shall
cease to accrue with either the actual placement of Complainant into the equivalent position
or with the date the offer was declined.
2. 	Backpay: 	Within sixty (60) calendar days of the date this Decision was issued, the
Agency shall determine the appropriate amount of back pay, with interest, and other
benefits due the Complainant, pursuant to 29 C.F.R. § 1614.501. Backpay is computed in
the manner prescribed by 5 C.F.R.§550.805, and is to be awarded from the date of
Complainant’s non-selection. Complainant shall cooperate in the Agency's efforts to
compute the amount of back pay and benefits due, and shall provide all relevant
information requested by the Agency. If there is a dispute regarding the exact amount of
back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed
amount within sixty (60) calendar days of the date the Agency determines the amount it
believes to be due. Complainant may petition for enforcement or clarification of the amount
in dispute. The petition for clarification or enforcement must be filed with the Compliance

2020001148	9
Officer, at the address referenced in the statement entitled "Implementation of the
Commission's Decision."
3. 	Posting Notice: The Agency shall post the attached Notice in accordance with the “Posting
Order” below.
4. 	Training: Within sixty (60) calendar days of the date this decision is issued, the Agency
shall provide training to the selecting official (SO) identified in this decision focused on
his obligations to ensure his employment decisions are free of age bias.
5. 	Compliance Report: The Agency is further directed to submit a report of compliance in
digital format as provided in the statement entitled "Implementation of the Commission's
Decision." 	The report shall be submitted via the Federal Sector EEO Portal (FedSEP).
See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation
of the Agency's calculation of back pay and other benefits due Complainant, including
evidence that the corrective action has been implemented.3
POSTING ORDER (G0617)
The Agency is ordered to post at its VETS Boston Regional Office and VETS Massachusetts State
Office facilities 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).
3 A quick reference chart on specific documents that will be accepted as evidence of compliance
for common orders (including back pay) can be found in Appendix Q of the EEOC MD-110 (Aug.
5, 2015) available at https://www.eeoc.gov/federal-sector/management-directive/appendix-q-eeo-
md-110-quick-reference-chart-documentation.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013,
or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives
it by mail within five days of the expiration of the applicable filing period. 	See 29 C.F.R. §
1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

2020001148	12
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
September 24, 2020
Date