Darrin H.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 15, 20180120172734 (E.E.O.C. Nov. 15, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin H.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172734 Agency No. DON 15-3818A-01223 DECISION On August 9, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 26, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the relevant period at issue, Complainant worked as a Program Analyst, GS-0343-13, at the Agency’s Logistics and Readiness (N4), US Naval Force Europe (CNE), US Naval Forces Africa (CAN), Commander Sixth Fleet (C6F), in Naples, Italy. On April 15, 2015, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment and a hostile work environment based on national origin (Russian- American) and in reprisal for prior EEO activity when2: a. since January 2015, his first and second level supervisors have impeded his ability to perform the Contracting Office Representative (COR) duties of his position; 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 For ease of reference, the Commission has re-lettered Complainant’s claims as claims a – l. 0120172734 2 b. during January 2015 through March 2015, the first level supervisor gave him conflicting project timelines, thereby making it difficult to meet deadlines. The supervisor said to Complainant in January 2015, “I knew you were going to fail” referring to a project, “Port Visit Report Card,” that Complainant was assigned to complete the first week in January 2015; c. on January 13, 2015, the first level supervisor referred to him as “the enemy” because of his Russian ethnicity in reference to the Russian-Ukraine conflict and previously called him a “Russian spy;” d. during January 2015, the first level supervisor walked between cubicles in the N4 office, including near Complainant’s cubicle, passing gas and burping, and once the first level supervisor was finished he returned to the office; e. on January 29, 2015, after his first level supervisor was notified of Complainant’s complaint (referring to Complainant’s complaint about S1’s use of profanity), S1 said, “I better not see you putting any money into that jar, after all that has happened;” f. on February 26, 2015, the first line supervisor bullied, threatened and intimidated him when he leaned forward, stretched out his arm, pointed directly at Complainant and Complainant’s co-worker, and yelled at Complainant to get into S1’s office in front of other employees; g. on March 30, 2015, after the first level supervisor was moved to another office, the first level supervisor continued to harass him through emails via Complainant’s second level supervisor; h. on April 15, 2015, around 4:10 p.m., in the passageway in front of the elevator lobby on the first floor of the parking garage at NSA Naples, Capodichino, he was walking with a co-worker when his first line supervisor, in a physically threatening and bullying manner, bumped into Complainant’s co-worker pushing him out of the way, and shoulder-swiped Complainant, and then continued to walk in a fast manner toward the stairwell; i. on June 8, 2015, he discovered that the database containing the Port Visit Financial Documents had been wiped clean. Complainant was not notified of the database file deletion. Complainant claimed that the information was deliberately withheld from him to prevent him from completing monthly analytical reports. Complainant was the only person in the office who was not notified of the action and who was not provided the opportunity to back up data that was necessary for him to complete his work; j. on June 27, 2015, while in a public forum, Complainant alleged that his second level supervisor publicly humiliated him by asking Complainant for the fourth time, “Do we know when Santo’s last day is?” Complainant perceived that the manner his second level supervisor asked this question was highly unprofessional and aimed at undermining his 0120172734 3 performance before his team. It reflected continued retaliatory behavior directed at Complainant for reporting a hostile work environment at N4 Logistics Support Department; k. on August 25, 2015, the second level supervisor while on the phone, turned up the volume and openly discussed Complainant’s EEO case for the entire office to hear. The second level supervisor stated he has already wasted enough time on EEO case and he does not have time for the EEO investigator; and l. on October 5, 2015, the Civilian Human Resources (HR) Specialist/Performance Manager asked Complainant to complete his Interim Performance Management System (IPMS) closeout for the time period between April 29, 2015, and the end of fiscal year 2015 before his Permanent Change in Station (PSC) when no new performance plan was initiated, no new performance objectives were established, and no midterm performance review had been conducted.3 After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on June 23, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. 3 The record reflects that claims i - l were later amended to the instant formal complaint. 0120172734 4 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that responsible management witnesses articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding claim a, Complainant asserted that since January 2015, his first and second level supervisors have impeded his ability to perform the Contracting Office Representative (COR) duties of his position. The Deputy Director of Logistics (unknown national origin, no prior protected activity) stated that during the relevant period. he was Complainant’s first level supervisor. The supervisor explained that the position Complainant was hired for was not just to perform the normal COR duties on behalf of the Contracting Officer. The supervisor stated that Complainant was also responsible for performing duties for the command (Sixth Fleet). The supervisor stated that Complainant’s duties “included, not are not limited to providing port cost data to operational planning teams responsible for making port visit decisions, review of Logistics Requirement Standard Naval Messages to ensure unit adherence to the Standardized Logistics Requirements Standard Naval Message format directed by SIXTH Fleet, and review port visit closing documents (invoices, receipts, customer service reviews. Etc.) to document inconsistencies in reporting between the unit and the contractor to the contracting officer [emphasis in its original].” Further, the supervisor stated that Complainant was also responsible conducting assessments of how the units were doing (i.e. Sixth Fleet, contractors, Fleet Logistics Center’s Contracting Officers, and the Naval Supply Systems). Complainant asserted that he was unable to travel to every Port Visit. The supervisor explained that Complainant was hired following the Program Objective Memorandums were “done (that is where we plan out the budget and get money for the fiscal year). That budget had already been given to us and there was no money in the budget to support the travel. I had asked several times to the Comptroller to get us some additional monies for that travel and continually received a response that there was no money in the pot to do this. I do not know if they found additional monies afterward, but as of February 2015, there was no money for us to do it.” 0120172734 5 The Captain, Supply Corps, and Director, Readiness & Logistics, N41 (unknown national origin, no prior protected activity) stated that during the relevant period, he was Complainant’s second level supervisor. The Captain disagreed with Complainant’s claim that the responsibilities he was given conflicted with the responsibilities he was delegated as a COR. The Captain explained that the COR has program and reporting responsibilities to the Commander Sixth Fleet “who has command of the ships, is the ultimate customer (requiring activity), and owner of the program in this area of responsibility.” In addition, the Captain does not recall receiving any communication from the FLC Contracting Officer (FLC KO) or a named Captain “who is on charge of the FLC contracting office, that the work we outlined for Complainant, conflicted with his duties as a COR. This allegation also ignores that it was Complainant who initially refused to sign the COR letter issued to him by the FLC KO, and that it was the Complainant and [co-worker] who took exception to the FLC KO COR appointment letter.” Further, the Captain stated that he had Complainant and co-worker prepare a Memorandum for Record explaining their reservations concerning the COR letter. The Captain said that Complainant worked on a Memorandum for Record or “a list of concerns about the FLC COR Appointment with [co-worker] regarding their COR responsibilities, and they eventually met with the KO. As far as I know, they agreed that the COR Letter was correctly based on requirements in the Federal Acquisition Regulation (FAR), but that the Complainant and [co- worker] would do a Memorandum for Record, addressing what they felt were the limitations on his ability to do COR functions for the contracting officer.” The Captain stated that he was not sure if Complainant signed the letter because Complainant did not provide a copy to him. Moreover, the Captain stated he does not know of anything that he told Complainant “to do or not to do contrary to what was required of him by the FLC, KO, and their PDs [Position Descriptions].” Regarding claim b, Complainant alleged that during January 2015 through March 2015, the supervisor gave him conflicting project timelines making it difficult to meet deadlines and the supervisor said to Complainant in January 2015, “I knew you were going to fail” referring to a project, “Port Visit Report Card,” that Complainant was assigned to complete the first week in January 2015. The supervisor explained that the Port Visit Report Card was a Standard Nava Message that provided a cumulative total of documents which were required to be submitted to the Sixth Fleet wherein it provided percentages of each unit “as to the number of documents turned-in and timeliness of reporting.” The supervisor stated that this task was assigned to a named employee, and was not assigned to Complainant. The supervisor stated at that time Complainant was tasked with production of an assessment on the Husbanding Service Provider (HPS) Oversight Program.4 4 HPS organizes all port services before a ship goes into port. 0120172734 6 The Captain stated that in regard to Complainant’s allegation that he and the supervisor set up Complainant and a co-worker “to fail, that is just absolutely untrue. We wanted them to succeed even if our only interest was in reducing the workload on ourselves. And none of this had anything to do with their national origin.” Regarding claim c, Complainant alleged that on January 13, 2015, the supervisor referred to him as “the enemy” because of his Russian ethnicity in reference to the Russian-Ukraine conflict and previously called him a “Russian spy.” The Captain explained that while he was not a party to the subject conversations, he did not hear the supervisor call Complainant “the enemy” or a “Russian spy.” The Captain stated, however, he recalled sitting in the supervisor’s office when the supervisor walked in “saying to himself, but audible to me, ‘[Complainant] is a Russian Spy.’” The Captain further stated that the supervisor “appeared to me to be half joking/half frustrated. He was obviously not serious, so I didn’t initiate a security investigation.” Regarding claim d, Complainant claimed that during January 2015, the supervisor walked between cubicles in the N4 office, including near Complainant’s cubicle, passing gas and burping, and once the first level supervisor was finished he returned to the office. The Logistics Directorate Current Operations Officer (unknown national origin, no prior protected activity) stated that during the relevant period, she worked in the same office with Complainant, and that Complainant sat in the cubicle behind her. The Officer stated that she heard from colleagues in the office that the supervisor frequently passed gas and burped but did not do it near her. Regarding claim e, Complainant asserted that on January 29, 2015, after the supervisor was notified of Complainant’s complaint (referring to Complainant’s complaint about his use of profanity), the supervisor said, “I better not see you putting any money into that jar, after all that has happened.” The Captain acknowledged counseling and issuing a memorandum dated January 20, 2015, to the supervisor “after a complaint about his language had been brought to my attention – I believe that very same day.” The Captain stated that he does not recall being at a morning meeting where the supervisor introduced the swear jar…nor do I recall [supervisor] tell Complainant that he didn’t want to see Complainant contributing to the jar.” The Officer stated that the supervisor apologized for the use of profanity during the morning quarters “to the entire directorate. He was sincere with his words, he promised to watch his mouth and encouraged all to be reduce their use of profanity. I don’t remember him making the statement about putting money in the jar.” Regarding claim f, Complainant alleged that on February 26, 2015, the supervisor bullied, threatened and intimidated him when he leaned forward, stretched out his arm, pointed directly at Complainant and the co-worker, and yelled at Complainant to get into his office in front of other employees. 0120172734 7 The Captain acknowledged that the verbal exchange between Complainant and the supervisor “devolved, but it takes two to tango. I did not observe [supervisor] being physically threatening or intimidating towards Complainant or [co-worker].” The Captain stated that while Complainant was taking the position that he needed to talk directly to the FLC KO because the KO issued the letter, the supervisor’s position was that even through Complainant was going to be appointed by the FLC KO, the HSP COR program is the responsibility of the Sixth Fleet. The Captain stated although Complainant would be the COR “upon accepting the appointment from the KO in the COR appointment letter, Complainant worked for SIXTH Fleet in N41. As such, [supervisor] was his direct supervisor. It appeared to me that the Complainant was trying to incite [supervisor] by the nature of his response to him. So, even though it was seemingly a rather calm discussion at the beginning, Complainant was dismissing [supervisor’s] authority to stay informed of communications outside the chain of command with regard to the HSP COR program. And [supervisor] took offense at that [emphasis in its original].” Further, the Captain acknowledged that the supervisor later “blew up” during the meeting. Thereafter, the Captain ended the meeting by ordering the supervisor to go to his office and dismissing the staff. However, the Captain asked Complainant and the co-worker to remain in the room. The Captain stated that he then sat down with Complainant and co-worker to discuss the COR letter. Specifically, the Captain stated “I don’t recall if at that time, [Complainant and co-worker] revealed their specific objections about the COR letter to me. But I believe the context of that conversation was, that while as CORs they would have a direct relationship with the KO, they also had to keep their supervisory chain of command informed. They asked if they could go to either N1 or HRO and I agreed.” The Captain stated that he then contacted the legal staff, the N1 Captain, two other Captains and the RDML concerning the incident. The Captain stated that later that day, the RDML reassigned the supervisor from N41 to N35 in a separate building. The Captain stated that the supervisor was no longer his Deputy and his supervisory responsibilities for all the employees in N4 had ended. Furthermore, the Captain stated that [Commander] was later made the N41 Deputy. Regarding claim g, Complainant alleged that on March 30, 2015, after the supervisor was moved to another office, the supervisor continued to harass him through emails via the Captain. The supervisor explained that after he was reassigned, he received several emails that contained duties that belonged to the N41. The supervisor further stated that there was no one from N41 who was copied on the emails so he forwarded them to the Captain. Regarding claim h, Complainant alleged that on April 15, 2015, around 4:10 p.m., in the passageway in front of the elevator lobby on the first floor of the parking garage at NSA Naples, Capodichino, he was walking with a co-worker when the supervisor, in a physically threatening and bullying manner, bumped into Complainant’s co-worker pushing him out of the way, and shoulder-swiped Complainant, and then continued to walk in a fast manner toward the stairwell. 0120172734 8 The supervisor denied assaulting Complainant or the co-worker. Specifically, the supervisor stated that the area where this alleged incident occurred was a blind corner. The supervisor stated that he did not realize that Complainant and co-worker “were there until I came upon the blind corner. I made no contact with his co-worker [Co-worker], and in an effort to avoid contact with [Complainant], I ducked and performed a pivot around the corner which caused my shoulder to lower. Contact was unavoidable and we did make a shoulder rub. There was nothing planned about that…I didn’t stop to talk to them, because I didn’t want another complaint filed against me.” Regarding claim i, Complainant claimed that on June 8, 2015, he discovered that the database containing the Port Visit Financial Documents had been wiped clean. Complainant was not notified of the database file deletion and he alleged that the information was deliberately withheld from him to prevent him from completing the monthly analytical reports. Complainant was the only person in the office who was not notified of the action and was not provided the opportunity to back up data that was necessary for him to complete his work. The Officer stated at that time, no files were deleted. Specifically, the Officer stated the reason Complainant did not have the information “he required to compete the monthly port visit report card is because he did not do a proper turnover with his counterpart [co-worker] prior to the complainant going on leave for the month of May. [Co-worker] who was the same grade and series as the complainant should have collected and created the monthly report card in the complainant’s absence. In fact [co-worker] reported at the daily morning meeting that he was working on the monthly report card when in fact he was not.” Further, the Officer stated that when Complainant returned to work, he had to compile all the information that was in the Contracting Office Representative group email box and “was readily available to him. The complainant refused to talk to most personnel in the office. Had he asked he would have been told exactly what I have relayed here” With respect to Complainant’s allegation that the database containing the Port Visit Financial Documents had been wiped clean, the Officer stated that it was not true. The Officer stated that the fields of data that the Complainant required in order to complete the monthly report card “were still available and visible. Due to a visit from C6F IG and direction from [Captain] to segregate MLS proprietary data from public access the sensitive documents were moved to a secure husbanding folder on the share drive which was set up by N6. When I requested that N6 set up the access restricted folder the complainant was included on the email request.”5 Regarding claim j, Complainant asserted that on June 27, 2015, while in a public forum, Complainant alleged that the Captain publicly humiliated him by asking Complainant for the fourth time, “Do we know when [co-worker’s] last day is?” Complainant perceived that the manner the Captain asked this question was highly unprofessional and aimed at undermining his 5 The C6F IG and MLS abbreviations are not identified in the record. 0120172734 9 performance before his team. It reflected continued retaliatory behavior directed at Complainant for reporting a hostile work environment at the Logistics Support Department. The Officer stated that the Captain asked Complainant about his co-worker during a morning meeting. Specifically, the Officer stated that it was the Agency’s policy that whenever employees plan to be out of the office during working hours or traveling greater than an hour away on the weekends that they would put an entry on the Outlook calendar. The Office further stated that Complainant and the co-worker “rarely complied with this requirement to my knowledge. I believe that [Captain] asked the complainant was he genuinely did not know but knew the complainant was friends with [co-worker] and would most likely know. I did not feel the question was unprofessional. It was unprofessional that the complainant and [co-worker] did not comply with the policies of the directorate. The Captain would and had asked the same of anyone else when they weren’t at the morning meeting.” The new Deputy Director 41 (unknown national origin, no prior protected activity) stated that during the relevant period, he and the Captain were trying to close out the Total Workforce Management System (TWMS) for the co-worker. The new Deputy Director stated that the co- worker’s detaching date moved a couple of time and “I was having a hard time contacting him. Since the TWMS requires items be done in a certain order we needed [co-worker] to close out his data in TWMS. [Captain] was trying to ensure the TWMS database was closed for [co- worker] and not trying to put [Complainant] on the spot.” Regarding claim k, Complainant alleged that on August 25, 2015, the Captain, while on the phone, turned up the volume and openly discussed Complainant’s EEO case for the entire office to hear, and that the Captain stated he has already wasted enough time on EEO case and he does not have time for the EEO investigator. The Officer stated that on the day in question, she heard the Captain “with speaker phone on talking to someone in legal saying he was busy, no details of the case were discussed that I can remember.” The new Deputy Director N41 stated that he believed the Captain was having a conversation with a named Agency official and the Captain “was concerned the EEO would delay his retirement and wanted to move the process along faster. [Captain] usually [answers] the phone via speaker phone and was not trying to have the conversation become public.” Regarding claim l, Complainant alleged that on October 5, 2015, the Civilian Human Resources (HR) Specialist/Performance Manager asked Complainant to complete his Interim Performance Management System (IPMS) closeout for the time period between April 29, 2015, and the end of fiscal year 2015 before his Permanent Change in Station (PSC) when no new performance plan was initiated, no new performance objectives were established, and no midterm performance review had been conducted. 0120172734 10 The new Deputy Director explained that he asked Complainant to complete the closeout assessment even though he was transferred to a different office. The new Deputy Director also informed Complainant that he has new first and second level supervisors and “the mid-year review would not be used as input. I would not be assessing the time when I was not the supervisor. Finally I [informed] [Complainant] that not doing the close out could affect his new job, because they use the same program Total Workforce Management (TW). If [Complainant] does not complete the closeout I was not sure his [new job] could open a new IPMS with this command doing a closeout. [Complainant] did complete the IPMS prior to transferring.” The new Deputy Director noted that the plan was closeout on April 29, 2015, but the performance objectives “were still accurate so no changes were made. I did not perform midyear [counseling] or provide feedback.” Complainant asserted that the performance objectives of the IPMS which was closed out on April 29, 2015, had been modified significantly during the course of the year by the Captain but the revised critical elements were never captured in a new performance plan, and no performance review was ever conducted during the course of the year. The new Deputy Director stated that the Captain provided new guidance frequently “but I do not think the critical elements of the IPMS needed to be changed. The closeout stated [Complainant] performed at the acceptable level.” After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s explanations for the disputed actions were a pretext for discrimination or motivated by discriminatory or retaliatory animus. Hostile Work Environment With regard to Complainant’s hostile work environment claim, to establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 protected bases – in this case, his national origin or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant simply has provided no evidence to support his claim that his treatment was the result of his national origin or prior EEO activity. 0120172734 11 CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 0120172734 12 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 November 15, 2018 Date Copy with citationCopy as parenthetical citation