Bart M.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Jun 19, 2019

0120180699 (E.E.O.C. Jun. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bart M.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 0120180699

Agency No. FSIS201700319

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403, from a November 21, 2017 Final Agency
Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Relief Food Inspector, GS-10, based in Melrose, Minnesota.

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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On March 27, 2017, Complainant filed an EEO complaint alleging that he had been subjected to
discrimination and harassment by the Agency, on the bases of disability,2 age (61), and reprisal
(engaging in prior protected EEO activity) when:

1. On January 7, 2017, he was not offered overtime (“OT”),

2. On January 5, 2017, an employee within the Labor and Employee Relations
Division (“LERD”) within the Agency’s Office of Human Resources (“OHR”)
rescinded a job offer that was previously made to him,

3. On December 15, 2016, his Front Line Supervisor (“FLS”) sent him to Long
Prairie, Minnesota, impacting his duty hours, and resulting in conflicting work
orders, and insufficient time to complete tasks at the first site, and,

4. He was subjected to various acts of harassment, including, but not limited to, the
following incidents:

a. On January 10, 2017, Management, including FLS, questioned his time
and attendance which indicated 9.5 hours of OT, for January 6, 2017,

b. On unspecified dates, Consumer Safety Inspectors (“CSI”) inquired about
his age and anticipated retirement date,

c. On December 14, 2016, the FLS incorrectly instructed him to charge gas
for his privately owned vehicle (“POV”) on his government credit card,

d. On November 23, 2016, his supervisor told him he “did not want to be in
his shoes,”

e. On November 22, 2016, S1 instructed him to drive his POV 270 miles
round trip to attend an oral conference, and,

f. On November 20 and 29, 2016, Management questioned him about his
time and attendance.

2 Complainant has Post-Thrombotic/Postphlebitic Syndrome due to blood clots, which, among
other things, impairs his ability to stand or sit for a prolonged period of time without pain. The
record refers to alleged denial of reasonable accommodations, and in his rebuttal statement,
Complainant also alleges discrimination based on mental disability (“anxious and depression”).
Neither matter was included in Complainant’s formal complaint, therefore they will not be
addressed in this decision. We note that Complainant raised these issues in Agency Case No.
FSIS201600707, which is pending a hearing under EEOC Hearing No. 443201700129X.
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At the conclusion of its investigation, the Agency provided Complainant with a copy of the
report of investigation (“ROI”), and later, a Supplemental ROI that included his rebuttals, and
notice of his right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”).
When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

As a Relief Food Inspector, Complainant performed Consumer Safety Inspector (“CSI”) duties
(in Complainant’s case inspecting, eggs and various species of meat for defects) as needed, either
in response to the onsite CSI absences or requests for “trouble shooting” expertise.
Complainant’s assignments were scheduled by his first level supervisor, FLS (51, no disability,
EEO activity), who was based in Melrose, Minnesota, within the Agency’s Office of Field
Operations (“OFO”) Des Moines, Iowa District. Depending on need, FLS sometimes assigned
Complainant to work shifts at multiple plants per day. FLS also approved Complainant’s time
and attendance (“T&A”), as well as expenses. Complainant’s second line supervisor (“D1”),
(65, no disability, prior EEO activity), was the Deputy District Manager for the Des Moines,
Iowa District. Complainant’s immediate supervisor on a given day varied by assignment.

In addition to FLS and D1, Complainant names 5 supervisors (“S1” “S2” S3,” “S4,” and “S5”)
as responsible management officials (“RMOs”) in the instant complaint. S3, S4, and S5, like
Complainant, were based out of Melrose, MN and reported to FLS and D1 as their first and
second line supervisors. Complainant also names RMOs that had no supervisory authority over
him, but were involved in the rescinded job offer allegation in Claim 2.

In Claim 1, S1 (38, no disability, no prior EEO activity), a Supervisory Public Health
Veterinarian, GS-12, based in Cold Springs, Minnesota, left Complainant off of a on January 7,
2017, email she sent to CSIs and Relief Inspectors offering OT. When none of the CSIs wanted
the OT, S1 worked the hours, which Complainant explains was inappropriate, as CSIs receive
OT preference, and he had not been contacted. S1 concedes that she did not include
Complainant on the email, but explained that she thought Complainant would be unable to take
the shift, as he would exceed the maximum assignment hours.

In Claim 3, S2 (51, no disability, no prior EEO activity), a Supervisory CSI, GS-10, based in
Long Prairie, Minnesota, requested relief from FLS (S2’s second line supervisor) on December
16, 2016. FLS assigned Complainant, even though he was scheduled at another plant that
afternoon. Complainant alleges that because Long Prairie was significantly farther than Melrose,
he had insufficient travel time, and was late to his second assignment. S2 confirmed that the
Long Prairie assignment impacted Complainant’s duty hours, but stated it was “to
[Complainant’s] benefit [because Complainant] accrued travel time and OT pay that he would
not otherwise have received.” FLS testified that Agency procedures for assigning work (no more
than 12 hours) were not violated.

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In Claim 2, an HRO specialist (“H1”) emailed Complainant offering a Relief Safety Inspector
position in Madison, Nebraska on December 21, 2016. The email clarified that the position “will
be a reassignment,” and proposed a start date of January 22, 2017. Complainant accepted the
offer and start date, and immediately began preparations to relocate with his family from
Minnesota to Nebraska, including using annual leave in order to house hunt.

The Deputy District Manager for the Denver District (“D2”), GS-14, located in the Agency’s
Denver Colorado Field Office, was the selecting official. Once Complainant accepted the
reassignment offer, D2 notified LERD, and asked about Complainant’s disciplinary record.
Upon learning that Complainant had a pending disciplinary action, D2 asked to withdraw her
offer. H1, with the assistance of the Chief, LERD, OHR, GS-14, based in Washington, DC
(“H2,” 50, no disability, EEO activity), composed the email withdrawing the offer on December
30, 2016. The email explained “[a]fter the selection was made, the [Denver] District became
aware of other conduct issues that were not provided during the reference check.” H1 referenced
an allegation that Complainant ‘made inappropriate comments to establishment management.”

Complainant contends that two OHR, LERD employees, GS-13, (“L1” and “L2”) “took it upon
themselves” to prevent him from getting the reassignment. Specifically, he alleges L1 (57, no
disability, EEO activity), who is based in Minneapolis, Minnesota, made the decision to rescind
the offer (which D2 and L1 deny). L1 testified that she received the information request from
D3 and contacted L2 (59, no disability, no EEO activity), OHR, LERD West District Office in
Denver, Colorado). L2 notified Management in the Des Moines, Iowa district, including D2, as
well as L1 that Complainant was not eligible for reassignment, as he had a disciplinary action
pending. L1 informed D2, who decided to rescind the offer. Complainant also alleges
discrimination by H2 based on the wording of the email, which he believes unfairly references a
2013 suspension he already served, and without due process for the pending disciplinary action.

In Claim 4(a), Complainant was on assignment in Long Prairie, under S2’s supervision, on
January 10, 2017, when FLS called and directed S2 to ask Complainant why his timesheet
contained 9.5 hours of OT. Complainant explained his T&A to S2 and voiced his frustration that
FLS did not ask him directly. S2 testified that he relayed the information to FLS. S2 also testified
that at Complainant’s request, he assisted him with his timesheet because the Agency “recently
started using a new time sheet system and the Complainant was having trouble with the required
timesheet coding for hours worked.”

Claim 4(a) further alleges that on January 10, 2017, after working in Long Prairie, Complainant
commuted to a different plant, where he reported to S3 (61, no disability, no prior EEO activity),
Supervisory Public Health Veterinarians, GS-12. While Complainant was there, FLS called S3
and asked about Complainant’s attendance. S3 did so by questioning Complainant in front of his
colleagues and GS-7 level employees, which embarrassed Complainant. Complainant raises
similar allegations naming S2 in Claim 4(f). S5 (62, no disability, no prior EEO activity)
previously initiated a grievance against Complainant resulting in a 7 day suspension.

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Claims 4(b) and 4(d) both concern offensive remarks. Specifically, Claim 4(b), alleges that in or
around November 2016, two CSIs (“C1” and “C2”) both significantly younger than
Complainant, questioned him about when he planned to retire. C1 testified that he did so
because he hoped to apply for Complainants job, but that he did not mention retirement again
after FLS counseled him. Both FLS and D1 testify that upon learning of the comments, FLS
counseled C1 and C2, and the comments ceased. Claim 4(d) concerns an alleged comment made
by S2 on November 23, 2016, which S2 disputes in the record.

In Claims 4(c) and 4(e) FLS directed Complainant to provide emergency relief, as a CSI
unexpectedly called out sick at the Long Prairie facility. When Complainant informed her that he
did not have enough gas in his POV to make the commute, FLS erroneously instructed
Complainant to charge his government credit card. Complainant informed her that that
contravened regulations, so she instructed him to use the card to withdraw cash and pay with
cash, assuring him he would be reimbursed. FLS initially informed Complainant that he could
not use Agency time, nor could he be reimbursed for travel associated with a meeting appealing
an Agency’s disciplinary action. However, when she became aware that this was incorrect, she
approved Complainant’s leave and reimbursed him for travel.

The FAD concluded that Complainant failed to prove that the Agency subjected him 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, (“EEO MD-110”) 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”).

Dissatisfaction with the Investigation

The regulation under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial and
appropriate factual record upon which to make findings on the claims raised by the written
complaint. An “appropriate factual record” is “one that allows a reasonable fact finder to draw
conclusions as to whether discrimination occurred.” § 1614.108(b). However, the complainant,
upon receipt of the ROI, is provided an opportunity to cure defects in the record by either
notifying the agency (in writing) of any perceived deficiencies in the investigation or requesting
a hearing before an AJ.

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See EEO MD-110, at Ch. 6, § XI and Ch. 7, § I. By choosing not to request a hearing before an
AJ, a Complainant waives the opportunity to develop the record through discovery and to cross
examine witnesses. See Tommy O. v. United States Postal Serv., EEOC Appeal No.
0120152090 (Jun. 8, 2017).

On appeal, Complainant directs us his statements and submissions for the record, which allege
that witnesses provided false testimony, or that their responses are based on their lack of
knowledge. If Complainant wanted an opportunity to develop the record through cross
examination of witnesses, he should have requested a hearing before an AJ. Upon review, we
find that the Agency has provided an “appropriate and factual record” in both an ROI containing
extensive affidavit testimony answering specific questions pertaining to Complainant’s case,
accompanied by supporting documentation, and a Supplemental ROI containing Complainant’s
rebuttals to witness testimony.

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 on the basis of 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 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

The Agency, as the employer, has broad discretion to set policies and carry out personnel
decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the
Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer
has the discretion to determine how best to manage its operations and may make decisions on
any basis except a basis that is unlawful under the discrimination statutes.)
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In other words, this Commission "does not second-guess the business judgment of Agency
officials regarding personnel decisions without a demonstrably discriminatory motive." Camden
v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC
Request No. 0520120603 (Jan. 31. 2013).

Claims 1 and 3

In Claims 1 and 3, the Agency’s legitimate nondiscriminatory reasons for the alleged
discrimination, were that the RMOs acted within the scope of their authority, and consistent with
Agency safety regulations and Complainant’s job description, when limit the amount of hours an
inspector can work. Article 13 of the Labor-Management Agreement between the Union and the
Agency (“LMA”) states:

The maximum time an employee may work on the slaughter line is ten (10) hours
per work day. The maximum time an employee may be assigned to off-line
inspection duties (e.g., in a pay status) is twelve (12) hours. However, when
determined by the immediate supervisor, based upon Agency staffing needs,
employees may be utilized beyond the ten (10) and/or twelve (12) hours to
accomplish the Agency's mission. Volunteers normally will be used before non-
volunteers are required to work longer than the maximums. LMA Art. 13 § 1(b)
June 2008.

In Claim 1, S1 explains that she left Complainant off of the email list of potential substitutes for
the January 7, 2017 shift because he would exceed the maximum hours were he to take it. When
nobody took the shift, she found no need to utilize an employee who would exceed the maximum
hours, because she was able to work the hours herself. While Complainant may disagree, S1’s
actions were “based on the Agency’s staffing needs” and within the scope of her authority as an
“immediate supervisor.”

In Claim 3, FLS testifies that the Long Prairie vacancy was an “emergency vacancy,” and as a
Relief Safety Inspector, Complainant could work up to 12-hour in an emergency. Complainant
does not dispute that he did not work beyond the maximum 12 hours. Complainant’s argument
that FLS caused him to have “conflicting work orders, which required him to report to different
sites that were several miles apart, during an over-lapping timeframe, leaving him insufficient
time to complete tasks at the first site,” indicates dissatisfaction with the assignment rather than
discrimination. Moreover, FLS is authorized to assign Complainant “as needed” and there is no
indication she penalized him for delays caused by the expanded commute. As multiple
supervisors point out in the record, the function of a “Relief” Safety Inspector involves visiting
multiple plants as needed.

For both Claims 1 and 3, Complainant provides no evidence, aside from bald assertions, to
establish that the Agency’s actions were pretext for discrimination, rather than managers
exercising business discretion in personnel actions.

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Claim 2

In Claim 2, the Agency’s legitimate nondiscriminatory reason for rescinding the reassignment
offer was that Complainant had a pending disciplinary action, and that its actions were consistent
with Agency regulations. As the District Manager, D2 was responsible for approving
reassignment requests to fill a vacant inspector position in her district. After making the offer to
Complainant, D2 notified the Labor Employee Relations Division (“LERD”), which notified D1,
the Manager of Complainant’s current district, who in turn provided relevant information about
Complainant’s disciplinary status. Upon learning Complainant had a pending disciplinary action,
D2 decided to rescind the reassignment, citing Article 27 of the LMA, which provides that:

Employees with formal disciplinary action pending… may apply for voluntary
placement if otherwise eligible. The applicant's control date is established upon
receipt of the application, but the employee will not be selected for placement
until the situation is resolved.” LMA Art. 27 § 2(d)(3) (June 13, 2008).

The record reveals that on July 7, 2016, D1 submitted a Request for Disciplinary Action (against
Complainant) to LERD, accompanied by supporting investigative documents. On October 24,
2016, LERD issued a Notice of Proposed Suspension to Complainant, to which Complainant
replied in an oral conference and written response on December 22, 2016. On January 5, 2017,
LERD issued a Decision resulting in a seven (7) day suspension effective January 22 through
January 28, 2017.

Complainant argues that the Agency’s proffered explanation was pretext because the offer was
rescinded before a decision was rendered on the pending disciplinary action. The regulations do
not bar the Agency from rescinding a reassignment offer once the selecting official becomes
aware of the pending disciplinary action. D2 was exercising due diligence as a selecting official
by notifying LERD and D1 that she offered Complainant a reassignment. While Complainant
may feel D2 should have honored the offer and waited for the result of the disciplinary action, he
does not provide any evidence that her decision was pretext for discrimination. Testimony and
emails establish that the Denver District sought to fill the position as soon as possible, as there
was a staffing shortage expected for January and February 2017.

Harassment/Hostile Work Environment

To prove his harassment claim, Complainant must establish that he was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of his prior EEO activity. Only if Complainant establishes both 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).
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Even considering all of the allegations together, along with the background information provided
in the record, and in a light most favorable to Complainant, Claim 4 lacks sufficient severity or
pervasiveness to rise to the level of harassment or a hostile work environment.

Claims 4(a), 4(c), 4(e), and 4(f)

We have long held that questions about work duties (e.g. reporting time and attendance) and
work related instructions (e.g. issues related to use of a POV for work-related purposes) are
“common workplace occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No.
01973328 (Feb. 18, 2000) (finding the Complainant’s allegation that her supervisor monitored
her work duties and time in and out of the office more closely than her coworkers amounted to a
common workplace occurrence). Claims 4(a), 4(c), 4(e), and 4(f) do not rise to the requisite
severity and pervasiveness to establish harassment because they describe “common workplace
occurrences.” We note that for Claims 4(c) and 4(e), Complainant does not dispute that S1
revised her instructions once he brought the mistake to her attention, and that he was
appropriately compensated in each instance.

Claims 4(b) and 4(d)

Commission has repeatedly found that a few isolated incidents of alleged harassment are usually
insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No.
05960030 (July 12, 1996); Banks v. Health & Human Serv., EEOC Request No. 0594081 (Feb.
16, 1995). We note that Title VII is not a civility code. Rather, it forbids "only behavior so
objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sunflower
Offshore Serv., 523 U.S. 75, 81 (1998). Thus, federal law does not prohibit simple teasing,
offhand comments, or isolated incidents that are not "extremely serious." Rather, the conduct
must be "so objectively offensive as to alter the 'conditions' of the victim's employment." The
conditions of employment are altered only if the harassment culminated in a tangible
employment action or was sufficiently severe or pervasive to create a hostile work environment.
Claims 4(b) and 4(d) amount to isolated incidents.

In Claim 4(b) the isolated incidents were statements made by Complainant’s coworkers about his
age. 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). The record supports that FSL took immediate and
appropriate corrective action by counseling the coworkers. Complainant does not dispute that
after FSL took action, the comments ceased.

Claim 4(d) concerns a comment allegedly made by S2 on November 23, 2016 when
Complainant notified him that he was filing an incident report about FLS. S2 denies making such
a comment, instead alleging that it was Complainant who made the comment.
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Assuming, arguendo that Complainant’s account is the correct version of events, the one-time
remark in Claim 4(d) did not culminate in a tangible employment action nor was it sufficiently
severe or pervasive to create a hostile work environment.

Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those
not specifically addressed herein, Complainant has not established discrimination as alleged.

CONCLUSION

Accordingly, the Agency’s decision dismissing Complainant’s complaint is AFFIRMED.

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.
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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

June 19, 2019
Date