Nubia H.1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Sep 22, 2020

2019002496 (E.E.O.C. Sep. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nubia H.1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2019002496 Agency No. RDCF201700668 DECISION On March 14, 2019, 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 November 13, 20182, final decision concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented herein are whether the Agency properly dismissed Complainant’s claims of discrimination and harassment based on reprisal (whistleblower activity) and claims that were previously adjudicated before the EEOC, and whether Complainant has shown by a preponderance 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 Due to mailing delays, Complainant did not receive the final Agency decision, which was postmarked February 19, 2019, until February 23, 2019. The Agency acknowledged this delay. Therefore, the appeal is timely. 2019002496 2 of the evidence that the Agency discriminated against her based on her protected classes and in reprisal for prior protected activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked in the Office of the Georgia State Director, Rural Development, Rural Housing Service at the Agency’s facility in Athens, Georgia. On June 20, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (Black/Hispanic34), sex (female), religion (Christian), color (Black), disability5 (physical and mental), age (42), and reprisal for prior protected EEO activity and for filing complaints with the Office of the Inspector General and the Office of Special Counsel when6: 1. since March 2017, Complainant has not been provided training regarding Limited English Proficiency (LEP), despite her repeated requests; 2. from March 2, 2017 to June 20, 2017, Complainant’s supervisor delayed in approving her training requests and then declined to authorize such, pending the outcome of the proposed removal action; and, 3. on several dates, Complainant was subjected to various acts of harassment, including, but not limited to: a. on January 6, 2017 and May 2, 2017, Complainant’s communications to the Agency’s Civil Rights Office were ignored; 3 In the investigative file, Complainant’s race is listed as “human” with a statement that the Agency viewed her as Black. The final agency decision (FAD) listed Complainant’s race as Black/Hispanic. 4 To the extent that Complainant is claiming “Hispanic” as a race, the Commission has consistently held that “Hispanic” is not a race category or racial classification, but rather, a national origin category. Equal Employment Opportunity Commission, Questions and Answers about Race and Color Discrimination in Employment (rev. Apr. 19, 2006); Medrano v. U.S. Postal Serv., EEOC Request No. 05930569 (Dec. 16, 1993); Salais v. Dep't of the Army, EEOC Appeal No. 0120082383 (Sept. 22, 2008). 5 Complainant declined to provide the specifics of her disability during the investigation. 6 The Agency re-ordered the issues for efficiency. 2019002496 3 b. in April 11, 2017, Complainant’s supervisor disconnected her from a leadership meeting conference call prior to its conclusion; c. from May 4 to 16, 2017, Complainant’s supervisor failed to provide complete responses to her reasonable accommodation requests and then advised that the matter was closed; d. on May 15, 2017, Complainant was admonished regarding a meeting which she had purportedly scheduled with a resident; e. on May 16, 2017, and other unspecified dates, Complainant received retaliatory, accusatory, and aggressive electronic mail from the Agency’s Civil Rights Director; and, f. on unspecified dates, the Agency’s Civil Rights Director discouraged Complainant’s supervisor from allowing Complainant to obtain LEP training. 4. in December 20167, Complainant was issued an Unacceptable performance rating and placed on an Opportunity to Improve (OTI) Plan. On July 19, 2017, the Agency issued a Partial Acceptance Letter to Complainant. The Agency accepted all the claims except for claim 4 and Complainant’s basis of reprisal for her whistleblowing activity when she filed complaints with the Office of the Inspector General (OIG) and with the Office of Special Counsel (OSC). The Agency determined that there were no allegations submitted to the OIG or OSC that involved claims of discrimination. As such, the Agency dismissed Complainant’s reprisal claims based on her whistleblower activity. The Agency also dismissed claim 4 as a matter that was previously raised before. Specifically, the Agency noted that Complainant had raised the same matter in Agency number RD-2016-00790 filed on September 2, 2016, which was pending a hearing when the partial acceptance/dismissal was issued. Therein, it dismissed claim 4 pursuant 29 C.F.R. § 1614.107(a)(1). The investigative record reflects the following pertinent matters relating to the subject claims: Between July 2014 and July 2016, the Agency employed Complainant as the Civil Rights Manager in the Georgia State Office. In 2016, Complainant was assigned the Limited English Proficiency (LEP) Point of Contact (POC). At the time8, Complainant’s first-line supervisor was the State Director, Office of the Georgia State Director (RMO1, Caucasian, white, female, over 40, Prior EEO, unspecified disabilities). Complainant requested training as the LEP POC from RMO1. Complainant asserted that RMO1 was non-responsive to her requests. RMO1 then left the Agency 7 This was incorrectly listed as occurring in December 2015 in the Agency’s July 19, 2017, Partial Acceptance/Dismissal Letter. 8 The State Director was Complainant’s first-line supervisor from April 2016 through January 2017. 2019002496 4 in January 2017. RMO2 (Caucasian, white, male, over 40, Catholic, no specified disabilities or EEO activity) then became the Acting State Director,9 and Complainant’s new first-line supervisor. Complainant asserted that RMO2 was similarly unresponsive to her training requests. Complainant contended that she and other minorities were consistently and constantly being treated differently than their male and non-minority colleagues. The Agency’s Civil Rights Director (RMO3, Caucasian, white, over 40, Christian, prior EEO activity, known disabilities) asserted that Complainant was provided with several opportunities to obtain the LEP training. She indicated that Georgia received state in-person training on April 11- 13, 2016 and September 13-14, 2016, and several webinars were held for state-based employees, but Complainant chose not to participate. On December 8, 2016, based on an unacceptable performance review for fiscal year 2016, Complainant was placed on a 60-day Opportunity to Improve (OTI) plan by RMO1. The OTI’s deadline was later extended twice, once until March 7, 2017, and then again until April 7, 2017. The Complainant stated that the Agency purposely and knowingly included false, incorrect, and misleading statements to support the OTI. Complainant stated she was required to meet expectations and cover assignments that her colleagues or higher GS employees were not required to meet. She indicated that she was also required to provide training for higher-level GS employees even though she had never received any training herself. RMO2 refuted Complainant’s assertions and stated that Complainant was repeatedly given time to improve but failed to do so through the extended OTI period. RMO2 later detailed Complainant’s insufficiencies in hopes of Complainant improving through the OTI plan. For example, RMO2 noted that Complainant was repeatedly hostile, uncooperative, and unprofessional in e-mails; that she did not timely complete her assignments; and that she repeatedly failed to meet improvement metrics. On February 6, 2017, Complainant sent RMO2 a request with seven training opportunities. RMO2 responded shortly after stating that he would review the request, along with her position description to see which ones would be suitable. On March 6, 2017, RMO2 sent Complainant an e-mail stating that he found three of the training opportunities to be beneficial and related to her position. RMO2 asked Complainant to list the three opportunities in her order of preference and to also provide an estimate of the cost to attend each. Complainant responded and RMO2 informed her that he would wait to decide on her request pending Complainant’s completion of the OTI. Since March 2017, Complainant asserted that she was also not provided with training regarding LEP, despite her repeated requests. Management contested this, noting that Complainant had attended a LEP training just the year prior. Additionally, RMO3 stated that on March 28, 2017, she replied by e-mail to Complainant and indicated that her office would not be able to allow Complainant to attend her requested April 3, 2017 training due to insufficient interest. However, management noted that additional training opportunities were tentatively planned for May 2017, in which Complainant could participate. 9 RMO2 became Complainant’s first-line supervisor when he was named the Acting State Director in January 2017. 2019002496 5 Additionally, Complainant asserted that she was subjected to harassment at work. For example, she noted that, on April 11, 2017, RMO2 intentionally disconnected her from a meeting prior to its conclusion. Complainant asserted that she was a member of the leadership team and should have been included. She believed that excluding her was an act of harassment. RMO2 stated that the conference call was only for individuals to provide updates on their respective programs. RMO2 noted that there was a separate directors meeting. As Complainant did not serve in a director’s role, she was not included in that meeting. On May 2, 2017, Complainant sent RMO2 an e-mail requesting an update on her training requests which she asserted were reasonable accommodation requests to address traveling with a team. From May 4, 2017 to May 16, 2017, Complainant sent RMO2 update inquiries regarding her prior request. Shortly after, RMO2 responded, stating that the requests were approved. However, Complainant asserted that RMO2’s responses were incomplete and requested clarifications. On May 15, 2017, RMO2 responded to Complainant’s May 2, 2017 e-mail and stated that the Agency would cover the cost of the National Civil Rights Conference and again elaborated on her travel requests. Complainant did not have any further follow-up questions or concerns that her requests were not being met. Also, on that date, RMO2 allegedly admonished her for a scheduled meeting she had. RMO2 denied admonishing Complainant and stated that he was merely conveying information about the meeting to Complainant. On May 16, 2017, Complainant asserted that RMO3 sent a retaliatory, accusatory, and aggressive e-mail to the entire state delegation regarding an e-mail Complainant had previously sent. Complainant noted that she had recently sent an e-mail which supported a video shared by the Secretary of the Agency. RMO3 stated that she had sent an e-mail to the delegation following concerns raised regarding two e-mails Complainant sent on May 4 and 8, 2017. RMO3 stated her e-mail was meant only to clarify questions and that it was in no way retaliatory, accusatory, or aggressive towards Complainant. Additionally, on unspecified dates, Complainant noted that her repeated communications with the Civil Rights office were ignored. For instance, Complainant requested to be reassigned or allowed to go on detail to avoid the hostile work environment, but her emails were ignored. RMO3 stated that Complainant communicated with her office about the EEO process and that the office had appropriately responded. On June 14, 2017, Complainant requested to attend the EEOC’s Conference in Chicago. At that point, the Agency was moving forward with the termination and RMO2 responded that any training would be denied. On June 20, 2017, RMO2 issued Complainant a Proposed Notice of Removal (Notice) effective August 11, 2017, for failing to improve under the extended OTI. RMO2 stated that the Notice was issued after consultation with the Human Resources Department and with the Office of General Counsel. The June 20, 2017 Notice detailed several events that contributed to management’s decision to propose termination. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment 2019002496 6 Opportunity Commission Administrative Judge (AJ). When Complainant failed to request either a hearing or a Final Agency Decision (FAD), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant argues that the FAD clearly did not consider all of the facts presented and argued that it was biased in favor of the Agency. Additionally, Complainant asserts that incorrect and erroneous information was submitted to the Agency’s Civil Rights Office which contributed to an improper finding of no discrimination. Complainant details a list of examples she asserts were improperly not referenced. For example, Complainant asserts that she has faced severe retaliation since reporting sexual assault by her supervisor and then later was removed from the Agency while 8-months pregnant.10 The Agency argued that, on appeal, Complainant attempts to provide new information. The Agency asserts that Complainant failed to provide justification for including this “new” information on appeal, and that it should therefore not be considered. Moreover, the Agency argues that the supposedly “new evidence” was reasonably available before or during the investigation, as the dates identified all occurred before September 15, 2017, which is when the investigation was completed. The Agency also notes that Complainant chose not to have a hearing, and therefore should be barred from raising concerns regarding the investigative file. Ultimately, the Agency argues that its procedural dismissal and merits-based finding of no discrimination were appropriate and should be upheld. STANDARD OF REVIEW 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 Chap. 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”). 10 This claim was not previously included during the informal or formal portions of her EEO complaint, and therefore will not be addressed. 2019002496 7 ANALYSIS AND FINDINGS Procedural Dismissals The Agency dismissed claim 4 on the grounds that it was the same claims previously decided by the agency or Commission in a prior complaint. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that “identical” does not mean “similar.” The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997). The hearings record demonstrates that claim 4 was identical to a claim in Agency number RD-2016-00790, EEOC Hearing No. 410- 2017-00461X, which was adjudicated by an AJ on June 28, 2019. Accordingly, it was appropriate that the Agency had dismissed claim 4 pursuant to 29 C.F.R. § 1614.107(a)(1). Regarding the Agency’s dismissal of Complainant’s reprisal claims based on her whistle blowing activities with the Office of the Inspector General (OIG) and the Office of Special Counsel (OSC) the Agency determined that neither involved EEO activity, and as such was not within the purview of the EEOC11. Therein, the Agency dismissed the reprisal claim as it related to Complainant’s whistle blowing activities with OIG and OSC for failure to state a claim12. Moreover, the Commission has held whistleblower activities are outside the purview of the EEO complaint process. Jonnie C. v. Dep’t of Transp., EEOC Appeal No. 0120172670 (Oct. 4, 2017) (citing Giannu v. Dep’t of Housing and Urban Dev., EEOC Appeal No. 05880911 (Feb. 13, 1989)). Accordingly, the Agency’s dismissal of Complainant’s reprisal claims based on whistleblower activity was proper. Glover v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120070928 (Jan. 7, 2009). Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, 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, n. 13; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its 11 Complainant did not dispute the Agency’s determinations that her filings with OSC and OIG did not contain EEO related concerns. There is no indication that either filing contained EEO- related concerns. 12 We note that the Agency accepted Complainant’s claim of reprisal based on her protected EEO activity. 2019002496 8 actions. Texas Dep’t of Cmty. 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. 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 its actions, 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). With respect to Complainant’s disparate treatment claim, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant repeatedly asserted that management intentionally delayed or denied her LEP training. The record demonstrated that Complainant had access to LEP training, albeit not always when she wanted to take a course. Moreover, the record demonstrated that she had participated in LEP training opportunities just the year prior to the request at issue. Additionally, the record demonstrated that while she was denied her April 2017 request, management noted that it was only due to insufficient interest but noted another training that would be occurring shortly after in May 2017. Regarding general training requests, the record demonstrated that RMO2 was responsive to Complainant’s requests, often responding in just days regarding a request. RMO2 also tentatively agreed to three trainings and noted that it only had to wait until Complainant’s OTI completion, as that was more important. RMO2 explained that improving performance deficiencies was management’s primary concern, after which the additional trainings could be provided. As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048. There is no evidence in the record to demonstrate that management’s actions were motivated by discriminatory or retaliatory animus. 2019002496 9 Disability & Reasonable Accommodation The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that Complainant was denied a reasonable accommodation, Complainant must show that: (1) she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the Agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002). Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); Enforcement Guidance on Reasonable Accommodation; Barney G. v. Dep’t of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). Reasonable accommodation may include making facilities accessible, job restructuring, modifying work schedules, and other similar actions. Dennis v. Dep’t of Educ., EEOC Appeal No. 0120090193 (June 15, 2010); Spence v. Nuclear Regulatory Comm’n, EEOC Appeal No. 0120041082 (Aug. 2, 2007), request for reconsideration denied, EEOC Request No. 0520070907 (July 9, 2008). With respect to Complainant’s reasonable accommodation claim,13 we find that despite her assertions, management approved of her reasonable accommodation requests as made. The record includes copies of the approved requests. Complainant did not provide documentation to refute the evidence that her requests were approved upon request. Unlawful Harassment In her harassment claim, in addition to the incidents discussed above, Complainant generally alleged that management subjected her to a hostile work environment when it subjected her to an unfair OTI, delayed and denied her training requests, and generally treated her with disrespect and hostility. We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To prove her harassment claim, Complainant must establish that she 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 a protected basis - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 13 For the purposes of analysis, we assume, without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 2019002496 10 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s protected bases or EEO activity played any role whatsoever in the Agency’s actions. Moreover, the responsible management officials provided legitimate, non-discriminatory explanation for its actions. For example, Complainant felt that she was harassed when she was intentionally disconnected from a meeting. However, in that incident, Complainant participated in the meeting as normal and was only disconnected for the directors only portion of the meeting. In sum, Complainant failed to prove that her protected classes or EEO activity played any role in the incidents she proffered as evidence of her harassment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order 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. 2019002496 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, Director Office of Federal Operations September 22, 2020 Date