[Redacted], Kristle L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 18, 2022

Appeal No. 2020004432 (E.E.O.C. Jan. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristle L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004432 Hearing No. 520-2019-00551X Agency No. 2001-0307-20181052820 DECISION On July 30, 2020, 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 July 2, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Education Compliance Survey Specialist (ECSS), GS-1801-10 at the Agency’s VA Regional Office facility in Buffalo, New York. Complainant experiences complications from multiple chronic conditions including: Pulmonary Embolisms; Tietze’s disease; Type 2 Diabetes; Deep Venous Thrombosis; varicose veins; peripheral venous insufficiency; Hyperlipidemia; Hypertension; Carpal Tunnel Syndrome; Major 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. 2020004432 2 Depression; General Anxiety Disorders; panic attacks diagnosed; Adult Attention Deficit/Hyperactivity Disorder; and Chronic Fatigue Syndrome. On July 5, 2017, the Agency approved Complainant’s request for protected leave under the Family and Medical Leave Act (FMLA). The approval covered the period June 18, 2017, to June 18, 2018, and notified Complainant that she was legally entitled to a maximum of 480 hours of leave without pay (LWOP) during a 12-month period. Complainant exhausted her entitlement to FMLA leave by October 2, 2017. Request for Reasonable Accommodation On March 23, 2018, Complainant requested reasonable accommodations in the form of (1) advanced sick leave; (2) being placed in the leave donation program; (3) a transfer to a job that permitted her to telework; and (4) to meet with someone to discuss disability retirement. In response, an Agency Human Resources Liaison (HRL) noted that Complainant presented a medical note dated March 2, 2018, that said only that Complainant was unable to work. The note did not specify the nature, severity, or duration of Complainant’s impairment or how the impairment affected Complainant’s ability to work. Thus, HRL requested clarity on Complainant’s limitations. HRL also provided contact information so that Complainant could assess her candidacy for disability retirement. S1 provided testimony that clarified the medical evidence. According to S1, Complainant provided a doctor’s note on January 23, 2018, that said she could not drive until February 16, 2018. On March 21, 2018, a doctor said Complainant could not work between February 28, 2018, and April 23, 2018. Then, Complainant could not work until May 15, 2018, which was later extended to June 22, 2018. Complainant then could return to work on July 2, 2018, which was postponed to July 12, 2018. On May 14, 2018, Complainant sent an email to HRL seeking job reassignment “due to my inability to perform all the duties of my current position.” On August 20, 2018, Complainant’s physician completed a form in which she stated that Complainant was to avoid long drives and “needs to change activity.” Complainant is also to avoid “lifting, pushing, pulling.” The word, “sedentary” is also listed as an activity to be avoided. Much of the remainder of the physician’s handwriting is illegible. The next day, HRL provided Complainant with the forms she needed to complete to request a reasonable accommodation. HRL further told Complainant that she needed to identify (a) the nature, severity and duration of the impairment; (b) the activity that the impairment limits; (c) the extent to which the impairment limits the activity; and (d) what particular reasonable accommodations would enable Complainant to perform the essential functions of her job. 2020004432 3 On May 16, 2018, S1 provided Complainant with the forms necessary to request leave donations. On May 24, 2018, Complainant emailed HRL and S1 and said that she had not received confirmation that her name was submitted for leave donations. The next day, HRL said that her name was not submitted because she had not filled out the necessary forms. Complainant completed the forms on June 8, 2018, sent them to HRL on June 15, 2018. On July 19, 2018, HRL emailed Complainant to state that Complainant’s request for leave donation had been forwarded for processing, and that he would follow up. Regarding Complainant’s request for reasonable accommodations, HRL still needed to know Complainant’s limitations to determine how she could be accommodated. According to HRL, Complainant ultimately did not become eligible for leave donations because her submitted documentation was incomplete and she failed to correct the deficiencies. Leave Status Complainant left work in February 2018. In March 2018, Complainant requested that the Agency change her status from Absent Without Leave (AWOL) to LWOP. In an April 24, 2018 email, S1 explained to Complainant that she was in AWOL status because it was the only status S1 could approve. S1 could not approve LWOP for 90 days, which was the then-estimated time that Complainant would be absent from work. S1 also explained that Complainant exhausted her eligibility for FMLA leave because she could only use 480 hours, which she exhausted between July 12, 2017, and October 2, 2017. Therefore, in the absence of approved leave status for Complainant, AWOL was the only available status. S1 asked Complainant to complete an OPM form to request further LWOP. The record contains an OPM Form 71 in which Complainant requested LWOP from March 2, 2018, until May 19, 2018. The Deputy Director (DD) approved this request but noted that it was not FMLA-protected because Complainant had exhausted her FMLA-protected leave in October 2017. S1 informed Complainant of the approval on May 11, 2018. S1 further noted that the medical note accompanying the approval indicated that Complainant would return to work on May 16, 2018, and asked Complainant if she intended to return. In response, Complainant said she would not be returning “at this time.” Complainant also requested advanced sick leave on a separate OPM Form 71 dated March 23, 2018. In email conversations between Agency management in late March 2018, S1 recommended denying advanced sick leave because, “based on her written and spoken words, she may never come back to work and advance leave would create a debt to the Buffalo RPO.” The DD agreed and denied advanced leave. S1 sent Complainant a letter on June 4, 2018. In the letter, S1 explained that Complainant has been absent from duty since February 21, 2018. Since then, Complainant used 9.25 hours of annual leave, three hours of sick leave, and used 488.25 hours of LWOP. Since Complainant’s LWOP approval ended, she has been in AWOL status. S1 required Complainant to report to duty on June 11, 2018. 2020004432 4 S1 further explained that at the time, Complainant had been on leave without pay status since February 2018, that she encumbered a full-time position in the Buffalo Regional office that needed to be filled, and she was the only ECSS in Buffalo with responsibility to survey roughly half of New York State. Therefore, her absence caused a hardship, and the Agency needed her to return, or to get someone else in her position. The record further contains a June 30, 2018, email in which Complainant requested LWOP between May 21, 2018, and July 10, 2018, “due to medical inability to work” and referenced a doctor’s note on file. Complainant asked to return to work on July 12, 2018. In response, on July 9, 2018, S1 noted that he is not in possession of a doctor’s note indicating Complainant could return to work on July 12, 2018. S1 further explained that Complainant had been in AWOL status since May 21, 2018, and that her LWOP requests had not been approved to date because Human Resources was waiting for more specific medical documentation. According to S1, “AWOL status is driven by the doctor’s notes we receive. I can’t extend the AWOL based on an unknown future date.” Ultimately Complainant produced the doctor’s note and returned to work on July 12, 2018. In addition, a review of the emails in the record demonstrate some confusion among Agency officials because Complainant sent medical documentation to different individuals, and therefore, the Agency did not have all the documentation in one place to make an accurate assessment. Work Performance and Assignments After her return, Complainant received an initial performance evaluation on July 16, 2018, for the period January 1, 2018, to September 30, 2018. On August 21, 2018, Complainant notified S1 that she was dissatisfied with the appraisal. Complainant acknowledged she was not working for a lengthy period of time “due to my personal medical disabilities and family obligations.” However, Complainant asserted that while at work she was sick and working in a hostile work environment. Complainant said that she had requested job accommodations and had not received a response. The record also contains email communications between S1 and Complainant discussing her assignments. In her position, Complainant performed surveys of educational facilities, and an employee in Complainant’s position was expected to complete 40 surveys each fiscal year. In a February 3, 2018, email, S1 explained that in order to complete the required 40 surveys, “it’s instrumental that physical surveys be completed early enough for additionally requested paperwork to arrive, EP’s to be set-up, and still have 30 days remaining for referral actions.” All surveys, therefore, should be conducted by August 10 of each year. In an earlier email on January 26, 2018, S1 acknowledged that Complainant has driving limitations2 and asserted that he assigned surveys to Complainant so that she could work within these limitations. 2 The record contains a physician’s note dated November 13, 2017, stating that “driving long distances is difficult for” Complainant. 2020004432 5 S1 sent Complainant an email on September 7, 2018, explaining that Complainant’s Fiscal Year 2018 mid-term appraisal for the period of January 1, 2018, to July 23, 2018, was prorated due to the fact that the appraisal period was 9 months instead of 12 months. S1 then prorated the appraisal further since Complainant was out on leave from February 22, 2018, to July 11, 2018. Thus, instead of being required to perform the full 40 surveys, Complainant was required to perform 15 surveys. The mid-year appraisal indicated that Complainant performed only six surveys and none of them were completed in a timely fashion. Complainant protested on October 9, 2018, that she could not meet the criteria because S1 did not assign her the minimum number of surveys. Incident with Co-Worker On October 3, 2018, Complainant emailed a coworker (CW1), and copied S1 and other supervisors. In the email, Complainant thanked CW1 for catching an unnecessary referral Complainant made, but asked CW1 to work on better communication. “If the situation presents itself again where you need to correct me or my work please do not make a public show; your verbal correction(s) were on full display for everyone in the office to hear.” That day, CW1 emailed S1 separately to disagree with Complainant’s assessment of his behavior. Rather, CW1 asserted that Complainant quickly escalated and is quick to raise her voice and make unfounded declarations. Complainant also was quick to ignore clear instructions. CW1 said that the referral in question resulted in the Agency erroneously informing a veteran that he had a debt to the Agency in excess of $18,000. On October 5, 2018, another supervisor emailed S1 and said that she witnessed the incident because Complainant was raising her voice and interrupting CW1. The supervisor noted that when Complainant interrupted, CW1 allowed Complainant to finish. Her perception of the incident was that CW1 was respectable, professional, and controlled, while Complainant was “disrespecting” CW1. Other emails in the record support this interpretation of the incident. On October 17, 2018, Complainant followed up with S1 saying that she received no response and received no apology from CW1. The next day, S1 issued Complainant a memorandum. Therein, S1 explained that he conducted an informal fact-finding investigation between October 9-11, 2018, regarding the allegations Complainant made in her October 3, 2018, email. Based on his investigation, S1 could not substantiate the allegations and was closing the matter. Request for Transfer During the same time period, on October 10, 2018, a Union official emailed HRL and said that Complainant’s request for reasonable accommodation had not been acted on. In response, HRL said that Complainant had never provided the Agency with an explanation of her limitations until that day, which stated that Complainant was limited in the activities of walking, bending, or overhead reaching. The document HRL received did not identify exactly how Complainant wished to be accommodated. 2020004432 6 While the Agency was processing Complainant’s request for reasonable accommodation, Complainant requested, on October 19, 2018, that she be reassigned out from under S1’s supervision. In support, Complainant said that it was very difficult for her to remain focused and upbeat at work. Complainant said requesting leave has become “a major issue” and is “an example of a much bigger” unhealthy and stressful atmosphere. The Agency denied Complainant’s request. HRL testified that Complainant’s request for transfer was initially denied because the Agency was trying to determine the best way to accommodate her. Later, HRL concluded, on October 29, 2018, that the Agency would not be able to obtain further information from Complainant and would operate on the assumption that her limitations were limited to walking, bending, and reaching. On October 31, 2018, the Agency granted Complainant the accommodation of (a) no compliance surveys greater than 20 miles from the Buffalo Regional Office; (b) 50 percent telework per pay period, assuming all appropriate agreements; (c) an ergonomic assessment; (d) 15-minute breaks every two hours; (e) assistance lifting more than 20 pounds as needed, and no overhead reaching, or bending. HRL denied that the Agency delayed in providing accommodations to Complainant. Rather, Complainant delayed the process, vital information was missing, and the Agency received information that seemed to be altered and have conflicting information. On December 3, 2018, the Agency began the process of seeking reassignment as a last accommodation for Complainant, and Complainant was later re-assigned to a different supervisor. On October 2, 2018 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), national origin (African-American), sex (female), disability (mental and physical), age (53), and in reprisal for prior protected EEO activity when: 1. from February 21, 2018, to October 1, 2018, the Supervisor, Education Division (S1) marked Complainant as Absent Without Leave AWOL) on several occasions and as of July 12, 2018, corrections to her time have not occurred; 2. on March 3, 2018, Complainant’s request for advanced sick leave was denied; 3. on July 2, 2018, S1 issued Complainant a letter directing her to return to work, to provide medical documentation, and a doctor’s note; 4. as of August 2018, management interfered with Complainant’s ability to manage her workload, impacting her ability to meet performance targets; 5. as of October 2018, the Agency has failed to respond to Complainant’s request for participation in the Voluntary Leave Donation Program; 6. on October 7, 2018, a coworker humiliated Complainant in the presence of staff and coworkers and S1 failed to assist her; 2020004432 7 7. on or about October 9, 2018, S1 failed to modify Complainant’s mid-year review; 8. as of October 19, 2018, the Agency has failed to respond to Complainant’s requests for reasonable accommodation; and 9. on October 25, 2018, Complainant’s request for detail/reassignment to different managers was denied. 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 Opportunity Commission Administrative Judge (AJ). Complainant requested an immediate final agency decision, but also submitted a request for a hearing before an AJ. The AJ dismissed Complainant’s hearing request as improper since Complainant requested an immediate final decision. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency first rejected Complainant’s claim that management failed to reasonably accommodate her. After its review of the record, the Agency concluded that it took reasonable actions to accommodate Complainant and acted promptly once Complainant provided proper medical documentation. Next, the Agency identified Claims (1), (8), and (9) as disparate treatment claims and concluded that management officials articulated legitimate, non- discriminatory reasons for each of its actions, which Complainant did not rebut. Lastly, the Agency found that Complainant failed to establish an unlawful hostile work environment because she did not show the conduct to be objectively hostile conduct, that the conduct was severe or pervasive, or that it was based on her protected bases. Accordingly, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONTENTIONS ON APPEAL On appeal, Complainant acknowledges she was transferred from S1’s supervision but complains of constant surveillance in her new job. Complainant contends that her colleagues have been turned against her and her treatment in her work environment has affected her productivity. 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”). 2020004432 8 Denial of Reasonable Accommodation 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. 29 C.F.R. §§ 1630.2(o) and (p). After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance on Reasonable Accommodation), EEOC Notice No. 915.002 (Oct. 17, 2002); see also Abeijon v. Dep't of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). When an individual's disability or need for a reasonable accommodation is not obvious, and he or she fails to provide reasonable accommodation requested by the employer, then the employer will not be held liable for failure to provide the requested accommodation. Enforcement Guidance at Question 6. A comprehensive review of the record indicates that the Agency exhaustively engaged in the reasonable accommodation interactive process with Complainant and posed reasonable questions to Complainant in an effort to clarify her limitations. After Complainant went on leave, the record shows great difficulty in ascertaining Complainant’s limitations and how these limitations could be accommodated at work. Once Agency officials received adequate documentation, Complainant was provided accommodations, including being assigned surveys within 20 miles of the Buffalo Office; 50 percent telework per pay period; 15-minute breaks every two hours; and lifting assistance. Later, the Agency decided to reassign Complainant as the reasonable accommodation of last resort. Accordingly, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. Disparate Treatment To the extent Complainant alleges she was subjected to disparate treatment, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2020004432 9 We forego the prima facie analysis here, because the Agency has articulated legitimate, non- discriminatory reasons for its actions as more fully discussed above. For example, regarding Claim (1), S1 put Complainant on AWOL status because no other leave status was available to her and the Agency denied Complainant advanced sick leave because it was unsure whether she would return to work at all (Claim (2)). With regard to Claim (3), S1 issued the return to work notice because Complainant had been in LWOP status since February 22, 2018, and the request for medical documentation was to assist the Agency in making decisions regarding Complainant’s requests for reasonable accommodation. As to Claim (4), S1 denied interfering with Complainant’s work. S1 affirmed that Complainant consistently failed to reach her goals and, as a result, he had to remove Complainant’s control over scheduling surveys. With respect to Claim (5), Complainant was never approved for the Voluntary Leave Donation Program because her submitted paperwork was incomplete and the medical documentation in support was too vague. Complainant was provided the opportunity to correct and amend the documentation but did not do so. As to Claim (7), S1 stated that that the mid-term review of Complainant’s work showed that Complainant was failing in both the quality and timeliness categories of work even after modifications were made to the number of surveys that Complainant was required to perform. Further, in Claim (9), the Agency denied Complainant’s request for transfer because it was exploring ways to accommodate her. The Agency subsequently granted Complainant a reassignment. 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 or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency's explanations for its actions were pretext intended to mask discriminatory motivations. As a result, we find that Complainant was not subjected to unlawful discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2020004432 10 In this case, the Commission finds that the totality of the alleged conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence does not establish that Complainant was subjected to discrimination or reprisal as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020004432 11 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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 January 18, 2022 Date