0120152103
12-22-2017
Victor M.,1 Complainant, v. Admiral Michael S. Rogers, Director, National Security Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Victor M.,1
Complainant,
v.
Admiral Michael S. Rogers,
Director,
National Security Agency,
Agency.
Appeal No. 0120152103
Hearing No. 531-2013-00060X
Agency No. 12-003
DECISION
On May 27, 2015, 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 29, 2015 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Facilities Engineer - Mechanical at the Agency's Mechanical and Engineering Branch at the Agency's facility in in Fort Mead, Maryland.
Complainant began working at the Agency on August 17, 2009, subject to a two-year probationary period. Complainant was responsible for drafting plans for building improvements related to heating, cooling, airflow, steam generation, and chilled water. He was also responsible for designing duct work and piping for buildings, submitting plans for their construction, receiving feedback from other engineers and users of the facilities which would be incorporated into his plans. His management consisted of Team Lead 1, Team Lead 2, the Division Chief, and the Branch Chief.
Complainant was hired by the Agency following interviews with Team Lead 1 and the Division Chief. The Agency officials were aware of Complainant's disability - deafness since birth - at the time of the interviews.
On November 15, 2011, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when, on August 16, 2011, he was terminated from his position with the Agency during his probationary period.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The Agency moved for summary judgment. Complainant responded asking that the AJ deny the Agency's motion. The AJ granted the Agency's motion, and issued a decision without a hearing based on the evidence developed during the investigation, concluding no discrimination was established.
AJ's Decision
In reaching this decision, the AJ determined the following salient facts were undisputed:
Complainant held a Bachelor of Science in Mechanical Engineering Technology and an Associate's Degree in Applied Sciences Automation Technologies from the Rochester Institute of Technology. He has been deaf since birth and communicates through American Sign Language (ASL). In addition, Complainant was diagnosed with executive dysfunction in February 2011, characterized as a learning disability or cognitive impairment. Complainant, however, denied he was affected in his daily life or at work due to the executive dysfunction, which he believed was a potentially a misdiagnosis.
Complainant was hired following an interview with the Team Lead 1 and the Chief. Complainant began working on the Agency's Emergency Monitoring Control System (EMCS) where he was responsible for surveying work spaces before drafting plans and budgeting for the engineering work he proposed.
Complainant received three to four hours of mentoring and tutoring a day with Team Lead 1 and Team Lead 2, as well as coworkers. The team leads, as well as his coworkers, were provided with a ten-week course in American Sign Language (ASL) to facilitate communication with Complainant. In addition, Complainant was permitted to attend approximately 20 courses sponsored by the Agency during his first year of work. Complainant requested reasonable accommodations for his deafness. The Agency provided technical note-takers (CART reporters) to take notes to assist Complainant in his meetings and training sessions on the Agency's campus. The Agency also provided Complainant with sign language interpreters for many of the meetings and trainings, although Complainant had to rely on the notes of classmates for some of the training taken off-campus. Despite his allegation to the contrary, the AJ found there was no evidence in the record that Complainant ever requested a full-time ASL-fluent tutor to help him with his classes. Complainant also used email, instant messaging, and Jabber to communicate with other officials.
At the beginning of his tenure, the AJ found that Complainant was assigned to tasks with low complexity levels. Team Lead 1, however, stated that Complainant did not understand his work duties and did not perform well despite the regular mentoring. For example, he said Complainant was assigned to provide a building survey of the Agency's Auditorium OPSI roof and he was to complete it within three weeks. This task had to be reassigned because Complainant failed to complete his work in the timeframe. On September 15, 2010, Complainant was assigned a new task involving the design of a fan cool unit involving demolition and new work; details, elevation details; piping layouts; and the unit's new variable frequency drives. On October 8, 2010, Complainant had completed 50% of the design and made a presentation to management and staff. Management found Complainant's work to be lacking and he was criticized for the lack of organization in his presentation, inaccuracies with his calculations, and his lack of comprehension of the fundamental concepts of his work. The Branch Chief found the work to be unacceptable. Complainant was asked to resubmit the design by October 14, 2010. However, when the Team Lead 1 asked Complainant to present the reworked designs, Complainant indicated that he was not ready.
The air cooling project was then reassigned back to Complainant with the deadline of August 19, 2010. Complainant submitted the outline by the deadline, but Team Lead 1 found it incomplete. Complainant was given the opportunity to rework his outline until October 26, 2010, and seek assistance from coworkers. Complainant was unable to complete the assignment. It was then given to a junior employee to complete, who did so in two weeks without Complainant's prior work.
The Branch Chief met with the Agency's Office of Disability Affairs to determine what the Agency should do about Complainant's performance deficiencies. On October 18, 2010, the Disability Affairs Chief (DA Chief) met with Complainant and Team Lead 1 to discuss Complainant's performance, with an ASL interpreter present. Complainant stated during the meeting that he believed that his current job did not match his abilities and sought a transfer. At that time, the DA Chief stated that because Complainant was probationary, pursuant to standard Agency policy, he had to remain in his position until August 2011, when his probationary period was over.
In November 2010, the Chief and Team Lead 1 contacted employee relations about Complainant's performance. The DA Chief discussed Complainant's situation with staff from the Maryland Division of Rehabilitation Services, as well as a number of other outside services, who recommended that Complainant undergo a psychological examination. Complainant cooperated with the evaluation, but said he felt it was coerced into doing so.
On January 31, 2011, the Psychologist evaluated Complainant and had him undergo a series of tests. The Psychologist diagnosed Complainant with executive dysfunction, a cognitive impairment. Complainant questioned the diagnosis and indicated he did not believe the condition impacted on his daily life or his ability to perform at work.
The Agency was informed of the diagnosis in February 2011 and the DA Chief determined that Complainant should be considered for a reassignment even though he had not completed his probationary period, as previously required. Complainant was sent to consult with an employment counselor, and the DA Chief asked Complainant for an updated resume, a personnel profile and had him search for other vacancies. Complainant's resume was submitted for over 20 vacant positions. While he was interviewed for some of them, Complainant was not hired for any of the positions. Complainant noted that none of the positions were engineering positions, which limited his ability to qualify for them. The DA Chief then looked for a temporary detail, but could not find one. The AJ then noted that that Complainant indicated that he could not perform some of the essential functions of his current job, particularly related to the budgetary calculations and calculations related to heat loads.
During this period, Complainant was re-tasked with clerical work. Complainant requested that Team Lead 1 recommend courses for him, but said none were suggested. In May 2011, Agency officials met to discuss Complainant's future with the Agency. On June 8, 2011, the Chief requested that Complainant's employment be terminated. On August 16, 2011, Complainant was terminated.
Based on these facts, the AJ first reviewed Complainant's claim of denial of reasonable accommodation. Complainant asserted that management was aware of his deafness and failed to provide him with reasonable accommodation. The AJ held that Complainant offered no evidence that the Agency was aware of his need for a full-time ASL tutor when he was taking classes. The AJ held that Complainant was provided with numerous other accommodations, including providing courses relevant to Complainant's job duties, ASL interpreters for classes and meetings, tutoring by management, technical note takers at classes, and provided Complainant with the notes of his classmates. The AJ also stated that Complainant's coworkers were taking ASL classes to better communicate with him. Team Lead 1 also state that Complainant was provided with additional time and even provided with mathematical calculations being done for him. As for the note-takers for off campus training sessions, the AJ held that the training was not necessary to perform an essential job function. The AJ determined that Complainant had not shown that training off-campus was connected to his position, and did not establish that the classmate notes were not effective. As such, the AJ held that Complainant had not established he was subjected to a violation of the Rehabilitation Act.
Complainant also alleged that he was subjected to discrimination based on the Agency's perception that he was disabled based on his diagnosis of executive dysfunction. The AJ assumed that Complainant was regarded as an individual with a disability based on this diagnosis. The AJ held that Complainant could not established that he was "qualified" for his position as he admitted he lacked the skills to perform successfully in some of the essential functions of his position. In addition, the AJ determined that Complainant did not show that there was an available position into which he could have been reassigned. Therefore, the AJ concluded that Complainant had not shown that he was subjected to discrimination based on a perceived disability.
The AJ also held that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's termination. The Agency provided evidence that Complainant was terminated due to his poor work performance. The AJ found that Complainant provided no evidence to show that the Agency's reasons were pretext for discrimination. As such, the AJ concluded that Complainant failed to show that his termination resulted from discriminatory animus towards his disability in violation of the Rehabilitation Act.
Finally, the AJ noted that while Complainant did not amend his complaint, his motion in opposition to summary judgement indicated that he also challenged the psychological evaluation ordered by the Agency. In sum, the AJ found that Complainant alleged that the Agency improperly subjected him to an unlawful medical inquiry. The AJ held that Complainant failed to show that the referral for the evaluation was not job-related or consistent with business necessity. The DA Chief indicated that the Agency was attempting to understand why Complainant was having work performance difficulties that seemed unrelated to his deafness and, at the recommendation of the Maryland Division of Rehabilitation Services, was seeking a potential reasonable accommodation to improve the situation. Therefore, the AJ concluded that Complainant could not demonstrate that the medical inquiry was prohibited.
The Agency issued a final order implementing the AJ's decision. This appeal followed.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Aug. 5, 2015) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, � VI.A. (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").
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has asserted that facts are in dispute, he has failed to adequately establish, through the use of particular evidence in the investigative file or other evidence of record, that such a dispute exists.
For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
As an initial matter, we conclude that the AJ correctly identified that there were three separate claims of discrimination alleged in the instant complaint: 1) Complainant was denied reasonable accommodation for his disabilities; 2) Complainant was terminated by the Agency in violation of the Rehabilitation Act; and 3) the Agency improperly sent him for a medical evaluation.
Reasonable Accommodation Claim
The Agency is required to reasonably accommodate the known limitations of a qualified individual with a disability, unless it can show that doing so would cause an undue hardship to its operations. See 29 C.F.R. �� 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (October 17, 2002); Barney G. v. Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015).
Here, it is undisputed that Complainant is an individual with a disability as he has been deaf since birth. Management officials were aware of his disability when they interviewed and selected him for his position. The record is also undisputed that Complainant requested and received numerous reasonable accommodations. During his first year, he was provided with several hours a day of mentoring/tutoring from lead and other employees, as well as a number of courses directly related to the essential functions of his position. The employees in his work area were provided with a ten-week sign language course to facilitate communication with him. The Agency provided him with sign language interpreters or technical (CART) note-takers for all trainings and meetings on its campus. Complainant's classmates notes were also made available to him for off-campus classes when interpreters or technical note-takers were not available. In addition, supervisors provided Complainant with additional time to complete assignments and, on at least on occasion, the lead provided Complainant with the calculations necessary to complete a major assignment.
One accommodation Complainant complains the Agency failed to provide was a full-time ASL-fluent tutor for his Agency-sponsored classes. However, the record supports the AJ's determination that Complainant neither communicated this request to the Agency nor that it should have known about this need despite his failure to make such a request. While Complainant was later diagnosed with a cognitive impairment (executive dysfunction), we note that Complainant challenged this diagnosis and never communicated to Agency officials that it might necessitate the provision of a special tutor.
The record does support Complainant's claim that he was not always provided with a sign language interpreter or CART reporter for his off-campus training sessions. Instead, he was provided with his classmates' notes for all classes. While Complainant is entitled to an effective reasonable accommodation, he is not entitled to the accommodation of his choice. Lynette B. v. Department of Justice, EEOC Appeal No. 0720140010 (December 3, 2015). Here, the AJ found, and the record supports, that in the particular facts of this case and the context of these particular classes, Complainant failed to prove that the provision of his classmates' notes was not an effective accommodation. In fact, at one point Complainant specifically said that note-takers were needed because he had problems absorbing the training information from an interpreter or words on a screen while simultaneously practicing the skills he was learning such as displaying calculations, graphics, or text.
Finally, the record shows that, when Complainant's work performance deficiencies failed to improve, the Agency management initiated contact with numerous outside sources to solicit ideas to further accommodate Complainant's disability, including the Maryland Division of Rehabilitation Services, the National Technical Institute for the Deaf, and the disability accommodation office at Complainant's college. The Maryland Division of Rehabilitation Services recommended the psychological evaluation, as well as a search for a reassignment. The record further shows that the Agency undertook a search for a new position for Complainant as will be discuss in greater detail below.
Termination
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the responsible management officials articulated legitimate, non-discriminatory reasons for the ultimate decision to terminate Complainant during his probationary period. In sum, Complainant was terminated due to his poor work performance. The Agency presented numerous affidavits and other evidence documenting Complainant's deficiencies. Complainant further admitted that his supervisors repeatedly informed him of their concerns with his performance. He also conceded that there were several major projects which he failed to complete as assigned. While it appeared at the time of his hiring that Complainant had the education, skills and abilities to perform successfully in his position, his actual work performance told a different story and provided adequate justification for his termination during his probationary period.
Complainant claimed he was qualified and capable to do the job if he had been provided with adequate amount of job-specific training. However, the evidence shows that Complainant was provided with several hours a day of on-the-job mentoring and tutoring, as well as being provided numerous formal trainings, without significant improvement in his performance.
As already noted, when Complainant's work performance deficiencies failed to improve, the Agency management initiated contact with numerous outside sources to explore additional potential accommodations it could provide, including the Maryland Division of Rehabilitation Services, the National Technical Institute for the Deaf, and the disability accommodation office at Complainant's college. The Maryland Division of Rehabilitation Services recommended the psychological evaluation, which resulted in a diagnosis of a previously unidentified cognitive impairment (executive dysfunction). While Complainant denied that he was affected by such a disability, he did ask the Agency for a reassignment, admitting that he could not perform all of the essential functions of his position. The Agency arranged for Complainant to meet with a Maryland education counselor to discuss his qualifications and potential job reassignment. As part of this assessment, he took the Career Qualification Battery Test.
In February 2011, the Agency made an exception to its usual rule that employees had to remain in their position until they had completed their probationary period, and commenced a search for a reassignment. Complainant's resume and personnel profile were provided to hiring managers responsible for more than 20 vacant positions, and Complainant was interviewed for a number of the positions. There is no evidence that any of the hiring officials were aware of Complainant's diagnosis of executive dysfunction. Unfortunately, none of the vacant positions were in the engineering field where Complainant had his training, and he was not selected for any of the positions. During this period, Complainant was re-tasked with performing clerical duties so that he could remain in a pay status during the reassignment search. Finally, in May 2011, management officials met and made the final determination that Complainant was unable to perform the full range of mechanical engineering duties required of his position and that he was temporarily performing non-engineering duties. Further, because no position had been identified to which he could be reassigned, the decision was made to terminate his employment effective in August 2011, prior to the end of his probationary period.
Based on these facts, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the Agency proffered reasons for his termination were a pretext masking discriminatory animus based on his disability. In addition to the many factors discussed above, we also note that animus towards Complainant's disability seems less likely as a factor in his termination as the same officials who made that decision to terminate were the ones who hired Complainant with the full knowledge that he was deaf.2
Improper Medical Evaluation Claim
Finally, Complainant asserted that the Agency improperly sent him for a psychological evaluation. The Rehabilitation Act was amended in 1992 to apply the standards of the Americans with Disabilities Act (ADA) to complaints of discrimination by federal employees or applicants for employment. See EEOC Enforcement Guidance on Disability Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance - Disability Related Inquiries), No. 915.002 (July 26, 2000); Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997); and EEOC Enforcement Guidance on Pre-employment Disability Related Questions and Medical Examinations (Enforcement Guidance - Pre-employment) (October 10, 1995). Because the restrictions on employers with regard to disability-related inquiries and medical examinations apply to all employees, and not just to those with disabilities, it is not necessary to inquire whether the employee is a person with a disability. Enforcement Guidance - Disability Related Inquiries, p. 3.
The Rehabilitation Act places certain limitations on an employer's ability to make disability-related inquires or require medical examinations of employees only if it is job related and consistent with business necessity. 29 C.F.R. �� 1630.13(b), .14(c). Generally, a disability related inquiry or medical examination of an employee may be "job related and consistent with business necessity" when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition." Enforcement Guidance - Disability Related Inquiries, at 15-16. It is the burden of the employer to show that its disability related inquiries and requests for examination are job related and consistent with business necessity. Id. at 15-23.
Here, the evidence of record supports the AJ's conclusion that the Agency sent Complainant for a psychological examination based on the recommendation of the Maryland Division of Rehabilitation Services, which it consulted because of ongoing concerns with Complainant's performance deficiencies and the Agency's desire to explore other possible accommodation that might improve the situation. The AJ pointed to the DA Chief's statement, who said Complainant was sent for the evaluation based on "concerns that Complainant's known disability of deafness did not account for these comprehension difficulties." We conclude that the AJ was correct in his determination that the Agency's request for this examination was clearly job-related and consistent with business necessity. As such, no violation of the Rehabilitation Act has been established.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission AFFIRMS the Agency's final action adopting the AJ's conclusion that no discrimination was established in this case.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
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
December 22, 2017
__________________
Date
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 The evidence indicates that Complainant's line managers were never informed of his diagnosis of executive dysfunction.
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