Stefan H.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Feb 21, 2019

0120172009 (E.E.O.C. Feb. 21, 2019)

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

Stefan H.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 0120172009

Hearing No. 570-2016-00819X

Agency Nos. 15-56-44; 15-56-75

DECISION

On May 22, 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
April 14, 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., 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 a Patent Examiner, GS-
09, at the Agency’s Office of Classification Standards and Development in Alexandria, Virginia.

On July 5, 2015, Complainant filed an EEO complaint (Agency No. 15-56-44) alleging that the
Agency discriminated against him on the bases of race (African-American), national origin (St.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Vincent and the Grenadines), color (Black), disability (back pain), age (41), and in reprisal for
prior protected EEO activity when:

1. On March 31, 2015, the Agency informed Complainant he was not selected for a
Patent Classifier position advertised under Vacancy Number OPC-2015-0006.

On September 13, 2015, Complainant filed a second EEO complaint (Agency No. 15-56-75)
alleging that the Agency discriminated against him and subjected him to a hostile work
environment on the bases of race, national origin, color, disability, age, sex (Male), and in reprisal
for prior protected EEO activity, when:

2. On or about January 28, 2015, the Agency did not provide Complainant with a
reasonable accommodation;

3. On or about February 2, 2015, Complainant received a harassing email from his
supervisor (S1) concerning non-essential work-related matters and false
accusations;

4. On or about February 13, 2015, Complainant received a letter at his residence
charging him with Absence Without Leave (AWOL) and threatening termination;

5. On or about June 1 and June 14, 2015, Complainant’s supervisor provided false
information about Complainant’s alleged workplace injury;

6. On or about July 2, 2015, Complainant was sent an email that disciplined and
charged Complainant with AWOL and denying additional leave for work injury;

7. On or about July 11, 2015, Complainant received a letter stating that he was charged
AWOL; and

8. On or about August 4, 2015, Complainant received an email directing him to return
to work on August 4, 2015.

On September 25, 2015, the Agency consolidated the two complaints for processing. The Agency
dismissed Complainant’s allegations to the extent he alleged discrimination based on the Agency’s
handling of his workers’ compensation claims as outside the purview of the EEO complaint
process pursuant to 29 C.F.R. § 1614.107(a)(1).2

2 Complainant does not appeal the Agency’s dismissal of his workers’ compensation claims.
Therefore, we will not address those claims further.
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With respect to claim (1), the Agency advertised Vacancy No. OPC-2015-0006 as a GS-9/11
position with promotion potential to GS-14. After receiving applications, the selecting official
(SO) assembled a panel of two people under SO’s supervision in the Classification Standards and
Development group and two people from the Examining Core group (P1, P2, P3, and P4). SO said
he delegated the decision to the panel because “there were a lot of applications for this position.”
Accordingly, SO hired the three selectees who were ranked highest by the panel. Further, SO said
he was not aware of any of Complainant’s protected bases at the time he made the selections as he
had never met Complainant.

P1 conceded he may have met Complainant at the job fair but did not recall any details. P1
explained that the Agency received over 100 applications overall and over 70 applications for the
Electrical Technology group. According to P1, the panel reviewed the applications for a threshold
score and did not rank the applications that fell below the threshold. Most of the applications did
not make this cut. They then looked at the remaining applicants and ranked the top six. The panel
recommended the top three applicants for selection and provided the next three applicants as
alternatives. P1 added that the selection process was strictly a paper review and the panel was
unaware whether any applicant had a basis protected by EEO statutes. P2 corroborated P1’s
statement and added, “I could not even tell if someone was male or female by the name because
we were just reviewing the information in their resume and giving them a score.”

Complainant claimed that he spoke with P1 at a job fair about the position, and that P1 made the
selection. Complainant considered this conversation to be a job interview because P1 asked
Complainant about his qualifications and then asked Complainant to apply for the job because P1
thought Complainant would be a good candidate. Complainant believed P1 did not select him for
the position because he had met Complainant and would then have some idea of Complainant’s
age. Further, Complainant believed that P1 could also learn of Complainant’s disability because
the Agency was aware of his disability. Complainant further argued that he was highly qualified
for the position.

The record contains the resumes for Complainant and the selectees and a list of applicants. At the
time of application, the Selectees were all Patent Examiners, GS-11 or higher.

Regarding claim (2), the record demonstrates that Complainant submitted his request for a
reasonable accommodation on October 22, 2014. Complainant sought (1) an ergonomic desk,
chair, keyboard, and mouse, (2) to telework twice a week; (3) a flexible work schedule; and (4)
reassignment. Complainant did not submit medical documentation to support his request until
December 5, 2014. The documentation stated that Complainant suffered from chronic lower back
pain. According to his physician, Complainant needed time off for physical therapy, to work from
home on the days he had physical therapy, an adjustable desk, and an ergonomic chair and
computer equipment.

The record contains communications between Complainant and the Agency’s reasonable
accommodations department. In response to a request on December 5, 2014, that Complainant
detail his schedule and commuting needs for physical therapy, Complainant explained that his
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physical therapy sessions were usually in the morning or middle of day and he commutes by bus
through unpredictable traffic. Complainant said that it takes up to an hour each way to travel to
physical therapy from the office. However, his residence is only five minutes away from therapy,
and it would be easier to telework on those days.

The Agency issued a decision on February 9, 2015, in which it granted Request (1), but denied the
remainder of his requests because Complainant did not explain a nexus between his need for
telework and for his disability. At best, Complainant demonstrated that he needed to attend
physical therapy sessions and he would have significantly more commuting time if he were
required to be in the office on those days. According to the Agency, “since it was more of a
commuting issue than a work-related issue, this part of the request was denied. Moreover, the
Agency disputed that Complainant had a recognized disability, but was willing to grant
Complainant ergonomic equipment through its Health office because “this initiative was to allow
anyone who wanted an ergonomic chair or other ergonomic equipment to obtain it.”3

Complainant claimed that while the Agency approved his request for a reasonable accommodation
with respect to his chair and an adjustable desk, he was not provided either of these items as of the
date of his affidavit, August 21, 2015. In a supplemental affidavit dated November 27, 2015,
Complainant contended that the Agency still had not provided him with an ergonomic chair and
contends that the Agency could have permitted him to telework until they provided him with an
adequate chair and desk. S1 averred that his only role with respect to Complainant’s reasonable
accommodation request was to sign paperwork. S1 denied that he made any decisions regarding
Complainant’s requests.

As to claim (3), Complainant stated that he believed the email he received from S1 on February 2,
2015 was harassing because S1 emailed him even though he went out on workers’ compensation
and complained that he “did not complete some work matter.” S1 insisted that Complainant update
his voicemail to say that he was out of the office. S1 stated that he sent Complainant the email
because he had issues with work Complainant previously submitted and that Complainant was
required to discuss his work with S1 before submitting it. Complainant submitted the work without
having this discussion. Moreover, Complainant left work on January 28, 2015, and had not
submitted a leave request nor set up his out of office messages. Thus, S1 was not sure if
Complainant was going to continue to be out of the office.

The record contains the February 2, 2015, email. In the email, S1 stated that he had instructed
Complainant to discuss the assignment with him prior to submitting it and wanted to know why
Complainant had not done so. S1 also said “while you are on leave, you should set your voicemail
and other communication means with an out of office notification so that our clients are kept
informed of your work status.”

3 The decision does not appear to address Complainant’s request for reassignment as an
accommodation. Complainant only raised the Agency’s denial of his request for telework as an
accommodation; therefore, we will not further address the denial of reassignment.
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With regard to claims (4) – (8), Complainant first alleged that S1 sent him a letter charging him
with AWOL and threatening his termination. Complainant believed that the letter was
inappropriate because he had been told that the workers’ compensation group would contact S1
with Complainant’s information. S1 said that Employee Relations drafted the letter and he signed
it. S1 sent the letter because Complainant exhausted his approved leave and S1 was uncertain
whether Complainant would return to the office. S1 stated that if Complainant was not on
approved leave and was not in the office, he would need to be designated as being AWOL.

A review of the letter indicates that, in addition to informing Complainant that he was in AWOL
status, the letter informs Complainant that he needs to provide sufficient medical documentation
to support his absences and reminds him that he needs to adhere to leave requesting procedures.

In rebuttal, Complainant argues that he had provided S1 with a doctor’s note stating he needed to
be off work for ten weeks to recover from his injury. Complainant insists that S1’s awareness of
his need to take time off demonstrates that S1 intended to harass, intimidate, and retaliate against
him.

Complainant claimed that he learned from the workers’ compensation department that S1 said
Complainant never reported any work-related injury to S1. To the contrary, Complainant
contended that he verbally told S1 about his injury in January 2015 and provided proof of his
injury. S1 denied providing false information and explained that on January 28, 2015,
Complainant told S1 that he was leaving to take care of his health. S1 said he was unaware that
Complainant had a workplace injury at that time. In an email on February 24, 2015, S1 informed
Complainant that he was not aware of any medical condition related to Complainant’s back until
he received Complainant’s doctor’s note on February 10, 2015. Thus, S1 denied providing false
information and answered the workers’ compensation question based on his receipt of the doctor’s
note.

Complainant stated he should not have been designated AWOL because he was on workers’
compensation. S1 affirmed that Complainant had exhausted leave under the Family Medical
Leave Act (FMLA) and needed to return on July 6, 2015 or to provide medical documentation to
justify additional leave. Accordingly, S1 sent Complainant an email to that effect on July 2, 2015.

A review of the July 2, 2015, email indicates that S1 was responding to an email from Complainant
that morning in which Complainant said that his doctor “has prescribed me to be out of work for
a while longer due to my work-related medical condition.” Complainant said his doctor was
preparing medical documentation and would email it to S1 on July 6, 2015. In his email, S1 told
Complainant that his request to extend FMLA leave or LWOP was denied because Complainant
had already taken the maximum 480 hours allowed under FMLA, which made additional LWOP
not an option. If Complainant had medical documentation supporting additional leave, he needed
to submit it.

After Complainant did not return to work on July 6, 2015, S1 sent Complainant a letter stating that
Complainant had exhausted his FMLA leave and was not, at that time, approved for LWOP.
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Therefore, S1 directed him to return to work on Friday, July 10, 2015. In this letter, S1 directed
Complainant to report to a co-worker’s office because S1 was “currently out of the office.”
Complainant later provided documentation in support of additional time off, which management
received on July 12, 2015.

S1 emailed Complainant stating that he seemed to “be under the incorrect impression that [he] is
being wrongly charged with AWOL while [he] is on leave.” S1 explained that Complainant
provided documentation supporting leave until July 31, 2015, and that he had not submitted any
documentation to support additional leave past that date. S1 provided Complainant with a copy
of the leave guidelines and told Complainant that he was charged with AWOL because he did not
have approved leave. S1 also clarified that at this time, Complainant had no leave remaining and
had submitted no leave request, so AWOL was the only leave status available to Complainant. S1
added that Complainant had approved leave from July 12, 2015 to July 31, 2015 and was expected
to be back in the office on August 4, 2015.

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 timely requested a hearing,
but subsequently withdrew his request. Consequently, 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.

Specifically, the Agency concluded, as to claim (1) that Complainant failed to establish a prima
facie claim of discrimination because he could not establish that SO or the panelists were aware of
Complainant’s protected bases or of the fact he may have engaged in EEO activity. Further, the
Agency found that Complainant failed to show as pretext SO’s and the panelists’ belief that the
selectees were more qualified than Complainant.

As to claim (2), the Agency concluded that it did not fail to provide Complainant a reasonable
accommodation and explained that its delay in addressing Complainant’s request until February 9,
2015 was reasonable because it had not received Complainant’s supporting documentation until
early December 2014.

The Agency also concluded Complainant failed to establish that he was subjected to a hostile work
environment because there was no evidence in the record demonstrating that the alleged conduct
resulted because of his protected bases. Moreover, the Agency concluded that Complainant’s
allegations were appropriate actions taken by S1 to establish Complainant’s proper work status.
Accordingly, the Agency found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment. The instant appeal followed.

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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”).

Disparate Treatment – Claim (1)

A claim of disparate treatment based on indirect evidence is examined under the three-part analysis
first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to
prevail, he or she must first establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at
802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). 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). Once the Agency has met its burden, Complainant bears the
ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502
(1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't. of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In this case, the Agency has met its burden of articulating a legitimate, nondiscriminatory reason
for its actions. More specifically, as to Complainant’s non-selection, SO and the selection panelists
explained that they believed the selectees’ resumes were the best out of several dozen applications,
including Complainant’s.

Where, as here, the alleged discriminatory action is non-selection, pretext may be found where the
complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer,
647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among qualified
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candidates based on its discretion, provided that the decision is not based upon unlawful criteria.
See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan.
16, 1997). 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. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal
No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the
reviewing authority absent evidence of unlawful motivation).

As Complainant chose to withdraw his request for 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 no persuasive evidence that Complainant’s protected classes were a factor in
any of the Agency’s actions. The Commission finds that Complainant failed to show that his
qualifications for the position at issue were plainly superior to those of the selectees. In this case,
the selectees had attributes that justified their selections, and the selecting official and selection
panel members affirmed that they believed the selectees were better equipped to meet the Agency's
needs.

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 discriminatory animus
was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission
finds that Complainant has not established that he was subjected to discrimination or reprisal as
alleged.

Denial of Reasonable Accommodation – Claim (2)

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).

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In this case, once the Agency was made aware of Complainant’s request for reasonable
accommodation, it sought to understand the nature of his restrictions and whether they could be
reasonably accommodated. Once it received the requested medical documentation, it arrived at a
determination. In February 2015, the Agency granted Complainant’s request for ergonomic
equipment and office furniture. The Agency denied Complainant’s request for telework because
Complainant’s submitted medical documentation did not indicate a nexus between his condition
and his need to telework on days that he had physical therapy sessions. Complainant did not
request reconsideration of the decision and did not provide any additional medical documentation
in support of his request for telework. Further, the Agency explained that the delay between
Complainant’s request in October 2014, and the partial approval of his request in February 2015,
was due to the Agency’s need for more information from Complainant.

In addition, we note that Complainant contends that the Agency did not provide him with
ergonomic equipment, but Complainant does not rebut the Agency’s position that Complainant
has not returned to the office since January 2015. Thus, until he returns to the office, we find
unpersuasive an argument he has not received an ergonomic chair or computer equipment.
Complainant argues in his affidavit that the Agency should have let him telework until it could
provide him with reasonable accommodations. However, there is no indication in the record that
Complainant could have worked at all or sought to telework. Instead, Complainant consistently
sought leave from work based on his doctor’s recommendations. Accordingly, Complainant has
not demonstrated he was denied reasonable accommodations in violation of the Rehabilitation Act.

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 Sys.,
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.

In the instant case, we cannot find that the allegations collectively are sufficiently severe or
pervasive to establish a hostile work environment. Additionally, the Commission finds that
Complainant has not demonstrated the incidents were based on discriminatory or retaliatory
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animus. Most of the allegations concern the Agency’s need to designate Complainant’s leave
status as one of a number of options. Complainant was only placed on AWOL when he was not
eligible for any other option. Further, the Agency’s actions with respect to Complainant’s leave
status accords with the Agency’s policy on leave and leave without pay. Complainant has not
shown that the Agency’s reasons for its actions were pretext for unlawful discrimination or
reprisal. Accordingly, the Commission finds that Complainant was not subjected to
discrimination, reprisal, 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

February 21, 2019
Date