Matt A.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMar 19, 20190120171698 (E.E.O.C. Mar. 19, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt A.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120171698 Hearing No. 570-2016-00377X Agency No. DON156919700624 DECISION On April 14, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 15, 2017 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Specialist (Final Agency Decision (FAD) Analyst) at the Agency’s Office of Civilian Human Resources, Naval Office of Equal Employment Opportunity Complaints Management and Adjudication facility in the Washington, D.C. Navy Yard. Complainant began working with the Agency in December 2013. On or about April 21, 2014, Complainant’s first-level supervisor (S1) held a meeting with Complainant in which they discussed FAD Analyst standards, Complainant’s work performance since the start of his employment, and other concerns. ROI, Ex. F30, at 2. 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. 0120171698 2 On May 30, 2014, S1 emailed Complainant regarding two cases that were returned for rework, encouraging him to ensure that future drafts did not contain the same mistakes and errors. ROI, Ex. F17, at 7. S1 reiterated that the expectation was for Complainant to send the Team Lead (TL) at least one FAD per week and offered Complainant the opportunity to discuss concerns with her or get one-on-one assistance from TL. In an email dated June 23, 2014, S1 informed Complainant that she reviewed the spreadsheet and Complainant had not submitted a draft since the end of May. She noted that they had previously discussed the requirement that each Analyst needed to submit at least one FAD per week and asked Complainant if they needed to go over the requirements, which Complainant declined. ROI, Ex. F17, at 5. In an undated memorandum, S1 informed Complainant that he had failed to meet the core requirements of his job as a FAD Analyst based on a six-month performance record. ROI, Ex. F16, at 1-2. The memorandum indicated that based on Complainant’s start date, he should have completed at least 24 FADs. However, Complainant had completed 13 FADs and of the submitted drafts, 12 required major revisions. Accordingly, the memorandum informed Complainant that he was removed from telework and required to submit a minimum of two FADs per week. Complainant responded that he would comply. S1 noted that she would have another discussion with Complainant regarding his performance on August 15th. ROI, Ex. F16, at 3. Through August 2014, S1 continued to follow-up with Complainant regarding his failure to meet the previously- discussed quota and the need for major corrections in his drafts. ROI, Ex. F17, 2-3. On October 28, 2014, S1 issued Complainant a “Notice of Unacceptable Performance and Opportunity to Improve,” placing him on a Performance Improvement Plan (PIP). ROI, Ex. F2, at 2-6. The notice stated that Complainant was provided with performance standards during a March 2014 discussion and again with a follow-up email on May 7, 2014, but Complainant continued with unacceptable performance. Specifically, Complainant’s performance was unacceptable related to two critical elements: Quality of Products and Compliance with Regulatory Timeframes. November 2014 email correspondence between Complainant and S1 show that on November 13, 2014, S1 approved Complainant’s annual leave request for November 25, 2014, through December 1, 2014. ROI, Ex. F17, at 51. S1 informed Complainant that “leave is fine but please submit your required drafts (2/week) to [TL] before you take your leave.” On November 14, 2014, Complainant met with S1 for a weekly discussion on the status of his work. ROI, Ex. F17, at 16. At the end of their meeting, S1 instructed Complainant to send TL a draft along with a supplemental request for additional information. Id. On November 17, 2014, S1 and TL could not confirm receipt of the requested documents and S1 emailed Complainant stating that because he had failed to follow her instructions, she was disapproving his leave request. Id. at 17. Complainant maintained that he followed S1’s instructions and S1 ultimately approved Complainant’s leave request once he informed her that he had already purchased tickets. 0120171698 3 On December 12, 2014, S1 emailed Complainant, noting that she was following up on their phone conversation. ROI, Ex. F17, at 10-11. In the email, S1 indicated that Complainant had five pending cases with expired and adjusted deadlines. S1 reiterated the performance standards. In response, on December 15, 2014, Complainant asserted that the critical elements regarding the total number of required merit FADs was unrealistic and he was dissatisfied with S1’s performance management. Complainant stated that S1’s performance management was “severely impeding [Complainant’s] ability to write FADs in an environment that is free of intimidation and harassment.” Complainant added that he considered the terms and conditions that S1 imposed to be a hostile work environment. S1 escalated Complainant’s concerns and Complainant’s second- level supervisor (S2) initiated a management inquiry. On December 17, 2014, S2 conducted a meeting between Complainant, TL, and herself. ROI, Ex. F18, at 5. At the meeting, S2 informed Complainant that TL would be handling the administrative matters regarding his performance pending the conclusion of the management inquiry. Id. On December 18, 2014, Complainant emailed Human Resources, stating that he had concerns about TL’s presence at his meeting. ROI, Ex. F18, at 8. On March 19, 2015, S1 issued Complainant a “Notice of Proposed Removal” due to Complainant’s failure to demonstrate an acceptable level of competence during the PIP. ROI, Ex. F215, at 2-14. On January 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when: 1. At various times between December 2013 and March 2015, he was subjected to a hostile work environment as evidenced by the following events: a. Beginning December 2014, Complainant’s first-line supervisor (S1) had not assigned him “Special Assignments” in accordance with his “Critical Elements,” while other coworkers have been assigned such tasks; b. On December 17, 2014, S1 assigned an employee who was not a manager to conduct weekly meetings concerning Complainant’s performance while on a PIP; c. On November 17, 2014, S1 sent him an email threatening to disapprove his preapproved leave, contingent upon the production of two Final Agency Decisions (FADs) per week; d. Beginning October 28, 2014, S1 failed to provide him clarification regarding his PIP; e. On October 28, 2014, S1 issued a PIP in the presence of a team leader who is not part of management; 0120171698 4 f. On October 28, 2014, S1 subjected Complainant to different FAD writing standards than his fellow coworkers; g. Beginning October 2014, S1 failed to provide Complainant with a FedEx account to conduct business while teleworking; h. Beginning March 2014, S1 subjected Complainant to different telework standards than his fellow coworkers; i. From January 2014 to the time of the FAD, S1 excluded Complainant from attending DON EEO sponsored meetings, including teleconferences and work group discussions; j. From December 2013 to the time of the FAD, S1 forced him to work in a workspace two times smaller than other employees; k. From December 2013 to April 2014, S1 did not provide him with his Performance Standards; l. From December 2013 to the time of the FAD, S1 assigned Complainant to a workspace two times smaller than those assigned to his coworkers; and m. On March 19, 2015, S1 issued Complainant a proposed termination letter. 2. On October 28, 2014, S1 placed him on a PIP; 3. In October 2014, S1 denied him the opportunity to attend the DON Southbridge training conference; and 4. On October 6, 2014, S1 provided him with an inaccurate position description. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant’s hearing request was untimely. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erroneously denied his hearing request, averring that his request for a hearing was timely when the Agency continued to supplement the ROI through 0120171698 5 October 2, 2015. Complainant asserts that the Agency excluded pertinent information from the investigative file. Complainant contends that without including some, if not all, of the documentation that he requested from the Agency, there are material facts in dispute. Complainant further contends that management officials were not credible in their testimonies. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ROI and Untimely Hearing Request As an initial matter, the Commission will address Complainant’s contentions regarding the adequacy of the Agency’s investigation into his complaint and the AJ’s dismissal of his hearing request. On appeal, Complainant argues that the Agency’s ROI is not a complete, impartial, or appropriate record and that there are conflicts of interest associated with the Agency’s processing of his complaint. EEOC Regulation 29 C.F.R. §1614.108(b) states, in relevant part, that the agency shall develop an impartial and appropriate factual record. Complainants can also cure defects in an investigation, after reviewing the ROI, by requesting a hearing before an AJ. Here, Complainant apprised the Agency of several perceived ROI deficiencies and requested an extension of the ROI review. Complainant’s extension was granted until July 30, 2015. On September 8, 2015, the contractor tasked with conducting the investigation reviewed Complainant’s letter of perceived deficiencies and determined that Complainant’s assertions were beyond the purview of the claims accepted for investigation. In addition, the contractor asserted that Complainant’s allegations were addressed by individuals who had firsthand knowledge of the accepted claims. Upon review, the Commission finds that the investigation was adequate and that the record is sufficiently thorough for the fact finder to address the ultimate issue of whether discrimination occurred. With respect to the denial of his hearing request, Commission regulations provide that a complainant has 30 days from receipt of the ROI to request a hearing from the Commission or a final decision from the agency. 29 C.F.R. § 1614.108(f). Complainant acknowledged that he received a “Post Investigative Options Notice” on July 18, 2015. The record reflects that on October 2, 2015, the Agency notified Complainant that supplemental information, including information related to workspace allocations, was added to the ROI. Complainant did not request a hearing until November 9, 2015, which was beyond the requisite time to submit a hearing request. 0120171698 6 Accordingly, we find that the AJ did not err when she denied Complainant’s untimely hearing request. Hostile Work Environment To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, 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 classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. The Commission notes 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. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. For example, S2 denied that Complainant did not receive “Special Assignments.” ROI, Ex. F2, at 5. S2 explained that Complainant was hired to write FADs, but in her opinion, Complainant received special assignments, including identifying issues and common errors in complaints, ensuring that templates were correct, and performing any other task outside of FAD writing. Id. S1 affirmed that upon his hiring, Complainant was informed that the focus was on production and quality of the FAD. S1 stated that while trying to resolve their backlog, special assignments included providing feedback on the sufficiency of ROIs or processing by the servicing offices. ROI, Ex. F3, at 6. Regarding the incidents surrounding Complainant’s PIP, claims 1(b), (d), and (e), management officials affirmed that Complainant’s PIP was issued in the presence of TL. ROI, Ex. F3, at 8. S2 averred that as a Team Lead, TL is considered a management official and his responsibilities 0120171698 7 include providing feedback to the FAD Analysts. ROI, Ex. F2, at 5, 6. S1 added that TL attended discussions with other Analysts regarding their work performance and work expectations, but TL was present at the meeting in question in case Complainant had questions on specific cases and the outcome of their review. ROI, Ex. F3, at 8. With respect to TL conducting Complainant’s PIP meetings, S2 explained that TL took over when S1 was out with a medical emergency. ROI, Ex. F2, at 5. S1 added that Complainant’s weekly workload discussion was assigned to TL pending the completion of a management inquiry. ROI, Ex. F3, at 6. As for PIP clarification, S2 stressed that both S1 and TL provided Complainant with very specific feedback during the relevant period. ROI, Ex. F2, at 6. S1 noted that she was very clear in explaining why the PIP was delivered and she held numerous discussions with Complainant about his work deficiencies. ROI, Ex. F3, at 8. Evidence within the record reflects ongoing communication about the quantity and quality of Complainant’s work. With respect to Complainant’s claim that his first-line supervisor sent him an email threatening to disapprove his preapproved leave contingent upon the production of two FADs per week, S1 affirmed that she informed Complainant that she would not approve future leave requests until he completed his pending caseload. ROI, Ex. F3, at 7, 8. S1 explained that she had previously instructed Complainant to send a FAD draft and supplemental request to TL, but when Complainant failed to do as instructed, she told him that she would pull his leave for Thanksgiving. Id. Nevertheless, Complainant was allowed to take leave. FOI, Ex. F2, at 13. As to Complainant’s claim that he was held to different FAD writing standards than his coworkers, S2 averred that while one employee may have had a different plan during her training period, Complainant was never subjected to standards different than the other experienced FAD Analysts. ROI, Ex. F2, at 6. S1 clarified, however, that Complainant remained at the one FAD per week standard with the goal of increasing his production requirement once he reached an acceptable level. ROI, Ex. F3, at 9. TL confirmed that Analysts were required to submit one to two FADs per week to TL, but once Complainant was placed on the PIP, he was only required to provide one FAD per week. ROI, Ex. F5, at 6. TL affirmed that Complainant’s coworkers met the standard and their work did not require major substantive revisions. Id. Regarding the FedEx and telework standards claims, S1 asserted that Complainant did not want an account and did not want to telework when he began working with the Agency. ROI, Ex. F2, at 6; ROI, Ex. F3, at 10. Complainant subsequently requested telework, but because he was in the office twice per week, he did not receive an account. Id. S2 confirmed that accounts were not provided to individuals who work in the office or only telework part-time. ROI, Ex. F2, at 6. Agency officials noted that Complainant worked under a liberal telework policy until he was placed on the PIP. ROI, Ex. F5, at 7. Upon his placement on the PIP, Complainant was required to work in the office full-time. Id. Regarding Complainant’s claim that his first-line supervisor excluded him from attending DON EEO sponsored meetings, teleconferences, and workgroup discussions, S1 denied that Complainant was excluded. ROI, Ex. F2, at 7. She averred that the Southbridge conference was 0120171698 8 for operational employees and Complainant never requested to attend any of the events in question. Id. With respect to Complainant’s workspace allocation claims, claims 1(j) and (l), S2 affirmed that a lower-graded employee utilized the larger space to perform clerical tasks and S1 noted that the administrative assistant’s placement was due to privacy concerns. ROI, Ex. F2, at 7; ROI, Ex. F3, at 12. S2 asserted that Complainant was placed in a smaller cubicle because he was teleworking twice per week and maintained that Complainant’s space was the same size as other Analysts. Id. S1 stated that Complainant was assigned the same workspace as the FAD Analyst who retired prior to Complainant coming onboard and agreed that the FAD Analysts have the same workspace. ROI, Ex. F3, at 12. As to the issues related to Complainant’s claim that from December 2013 through April 21, 2014, his first-line supervisor did not provide him with his Performance Standards, management officials explained that they were shorthanded when Complainant came onboard and several employees experienced a delay in receiving their performance standards. ROI, Ex. F2, at 7. S1 stressed that from day one, Complainant received assistance and information even though the standards were not provided until all new employees were in place. ROI, Ex. F3, at 12. She added that TL was always available for consultation, advice, mentoring, and guidance. Id. With respect to the proposed termination letter claim, claim 1(m), S1 averred that prior to the proposed termination, Complainant was not performing at an acceptable level and had difficulty meeting performance objectives despite constant feedback. ROI, Ex. F7, at 3, 4. S2 confirmed that at the end of Complainant’s PIP, management officials determined that Complainant failed to improve, which resulted in the proposed termination. Id. S1 specified that through the duration of the PIP, from October 28, 2014 through February 6, 2015, Complainant did not meet two of the four critical elements in his PIP. ROI, Ex. F8, at 3, 4. A Human Resources Specialist (HR) confirmed that from his understanding, management officials proposed termination based on unacceptable performance as a result of the unsuccessful completion of the PIP. ROI, Ex. F9, at 3. After reviewing the record in its entirety, we agree with the conclusion that the preponderance of the evidence of the record does not support a finding that the alleged incidents were sufficiently severe or pervasive to establish a hostile work environment or that management’s conduct was motivated by discriminatory animus. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 0120171698 9 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (2), management officials affirmed that Complainant was placed on the PIP because the quantity and quality of his work were not at the same level as the other FAD Analysts. ROI, Ex. F2, at 9. Specifically, S2 stated that she observed that Complainant was not producing at least one FAD per week by his sixth month of employment and when he completed a FAD, the errors required excessive rework. Id. at 10. S1 noted that she held multiple conversations with Complainant regarding the quality of his FAD and work production leading up to his placement on the PIP. ROI, Ex. F3, at 14, 15. S1 added that she placed Complainant on notice of his unacceptable performance in July 2014 and subsequently notified Complainant of the PIP during his year-end performance discussion. Id. at 15. HR asserted that although he felt management officials rushed the PIP and Human Resources had concerns about legal sufficiency, he did not believe Complainant’s race or gender played a role in the Agency’s actions. ROI, Ex. F4, at 8, 10. With respect to claim (3), S1 and S2 explained that the Southbridge conference was held for operational employees with roles that were vastly different from Complainant’s. ROI, Ex. F2, at 11; ROI, Ex. F3, at 11. They added, however, that Complainant never requested to attend the conference and if he had asked, the request would have been denied due to their backlog and irrelevance to Complainant’s position. Id. Moreover, TL asserted that none of the Analysts were expected to attend and there was no purpose for them to attend. ROI, Ex. F5, at 10. S1 confirmed that no other FAD Analyst attended other than one employee who was still working as an EEO Office practitioner at another command. ROI, Ex. F3, at 11. As for claim (4), S1 affirmed that prior to 2010, FAD Analysts were classified as GS-0201. ROI, Ex. F3, at 17. The FAD Analysts were transitioned to GS-0260, but their work and duties did not change. Id. In the transition, the standard position description did not receive updates to reflect the changes. ROI, Ex. F2, at 12. Both S1 and S2 stressed that the position description was updated once they were apprised of the error. ROI, Ex. F2, at 12, 13; ROI, Ex. F3, at 17. The record includes the position descriptions at issue, which corroborate the testimony provided by Agency officials. ROI, Ex. F13, 2-8; ROI, Ex. F14, 2-8. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. As Complainant failed to timely request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The Commission finds 0120171698 10 no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. Accordingly, we find that Complainant has not established that he was subjected to discrimination or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 0120171698 11 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 19, 2019 Date Copy with citationCopy as parenthetical citation