Clinton C.,1 Complainant,v.Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120182118 (E.E.O.C. Sep. 30, 2019)

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

Clinton C.,1
Complainant,

v.

Lonnie G. Bunch III,
Secretary,
Smithsonian Institution,
Agency.

Appeal No. 0120182118

Hearing No. 570-2016-00334X

Agency No. 15-01-111214

DECISION

Complainant timely 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 May 3, 2018,
final order 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., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. §
206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly granted summary judgment; and (2) whether the
preponderance of the evidence in the record establishes that Complainant was subjected to
discrimination based on race, sex, sexual orientation, color, disability, age, and/or reprisal.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Advancement
Specialist, IS-1001-11-2, in the Office of Development at the Agency’s National Museum of
Natural History in Washington, D.C. Until approximately October 2013, Complainant’s first-line
supervisor was the Development Director (S1). Between October 2013 and July 2014,
Complainant’s first-line supervisor was the Acting Chief Development Officer (S2). In July
2014, the new Associate Director of Development (S3) became Complainant’s first-line
supervisor.

Complainant is an African-American, black, gay male who was born in 1970. Complainant is
HIV positive and was diagnosed with neuropathy in 2009. Complainant stated that he engaged in
protected EEO activity when he contacted an EEO Counselor in September 2014 to initiate the
instant complaint.

Complainant stated that on or about April 22, 2014, he complained to S2 that a Senior Campaign
Manager/Development Officer (C1) had failed to respond to his emails about a webpage.
According to Complainant, he wanted S2 to know that he was not responsible for any delays in
completion of the webpage. Complainant averred that S2 told him not to “throw anyone under
the bus.” Complainant alleged that, around this time, he overheard C1 discussing his sexual
orientation with female colleagues. According to Complainant, he complained about C1’s
remarks to S2, but S2 did not provide a satisfactory response. S2 stated that he met with
Complainant and a Labor and Employee Relations Specialist (HR1) on April 25 and May 2,
2014, to address Complainant’s concerns. S2 averred that Complainant stated at the meetings
that he did not wish to pursue the matters further, so S2 thought the issues were resolved.

Complainant’s IS-11 Advancement Specialist position did not have promotion potential and,
unlike in the GS system, step increases in the IS system are not guaranteed based on performance
and tenure benchmarks. Complainant averred that he had discussed the possibility of being
promoted to an IS-12 Confidential Assistant position with S1 and that S1 was supportive of the
idea. Complainant stated that he worked with a Human Resources Management Analyst (HR2)
to come up with an IS-12 Confidential Assistant position description. HR2 averred that she was
working with Complainant to make sure that his position description for his position of record
was accurate and that she shared an IS-12 Confidential Assistant position description with him
for his information. According to HR2, because Complainant’s position lacked career ladder
promotion potential, it was not possible for him to be noncompetitively promoted.

Complainant alleged that he was denied a promotion to IS-12 and a step increase by S2 from
July 2013 through May 2014. S2 stated that, as an acting supervisor, he deferred such decisions
until a permanent supervisor would be in place. According to Complainant, S3 failed to promote
him when she became his supervisor. S3 stated that, as a new supervisor, she was not permitted
to make promotions for at least 120 days.
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S3 averred that Complainant’s position of record did not have promotion potential and that the
proposed IS-12 Confidential Assistant position only existed at the level of the Secretary of the
Agency. Regarding Complainant’s request for a step increase, S3 stated that she did not give any
step increases during this time. Complainant alleged that S3 noncompetitively promoted a
younger White female coworker (C2) early in her tenure. According to the record, C2 applied for
a competitive posting and was promoted to IS-11-1, a lower step than Complainant.

Complainant averred that other development employees were allowed to telework one day per
week, while he was not. S3 stated that Complainant’s position was not suitable for telework
because he performed executive assistant duties. According to Complainant, he was allowed to
telework during the October 2013 government shutdown, so his position was suitable for
telework. The record reflects that because Complainant was a Smithsonian trust employee who
was paid with trust funds instead of federal money, he was permitted to work during the
shutdown to ensure continuity of operations. Complainant alleged that he requested to telework
on August 29, 2014, when he had a medical appointment. S3 denied that Complainant requested
to telework on August 29, 2014. According to S3, Complainant requested sick leave for a
medical procedure that day. Complainant stated that in October 2014 he requested a reasonable
accommodation consisting of telework on days when he had medical appointments. S3 stated
that she allowed Complainant to telework on the first requested day after he made his reasonable
accommodation request but that, in consultation with the reasonable accommodation office, she
requested that he provide information about his medical condition and accommodation request.
Complainant rescinded his reasonable accommodation request because he did not want to
provide the requested medical information.

According to Complainant, he had two conversations with S3 in August 2014 during which she
made discriminatory comments. In one conversation, S3 described her missionary work with
people with HIV/AIDS in Africa. In the other conversation, S3 mentioned that her former
employer had become more accepting of LGBT individuals and that she had attended a
christening at the home of a gay former colleague. On September 30, 2014, Complainant emailed
S3 to complain about these comments because he believed that the comments indicated that she
had problems with him as an African-American gay male who was HIV positive. S3 averred that
her comments were “innocent” and had nothing to do with Complainant. In the email,
Complainant asked S3 to keep future conversations professional and related to the business of
the museum. Complainant alleged that, after he complained, S3 reduced her communication with
him. S3 stated that she reduced her communication with Complainant pursuant to his request.
According to S3, sometimes she would be in the office early in the morning or in the evening
when Complainant was not there, so she would leave him notes on his desk.

Complainant alleged that his performance plans for fiscal year (FY) 2014/15 and 2015/16 were
delayed and contained mandatory requirements that were not in his coworkers’ performance
plans. According to Complainant, the delay in issuing his performance plans affected his ability
to be promoted. According to the record, all employees supervised by S3 received their FY 2015
performance plans between June and August 2015 and that Complainant received his on June 11,
2015.
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The record indicates that Complainant received his FY 2016 performance plan on March 11,
2016, and that he was the first of S3’s supervisees to receive a performance plan. For FY 2015
and 2016 performance plans, the word “mandatory” was part of the form and signified that the
section needed to be completed by the supervisor.

Complainant alleged that he performed substantially equal work for less pay than C1, C2, a
Development Specialist (C3), and an Advancement Associate (C4). According to the record,
Complainant was paid the more than C2, an IS-11-1, and the same as C3, an IS-11-2. C1 was
paid more than Complainant, but her duties included supervising other employees. On January
11, 2015, C4 received a step increase to IS-11-3. According to S2, C4 had extensive contacts
with donors.

On November 12, 2014, Complainant filed an EEO complaint, which he subsequently amended,
alleging that the Agency discriminated against him on the bases of race (African-American), sex
(male), sexual orientation (gay), color (black), disability (HIV positive and neuropathy), age
(born in 1970), and reprisal for prior protected EEO activity when:

1. From July 2013 through May 2014, he was denied a promotion to IS-12 and/or a
step increase;

2. Beginning on March 25, 2014, he was denied telework;

3. During the week of April 22, 2014, his supervisor failed to address his concerns;

4. In August 2014, his new supervisor failed to promote him, but she promoted other
individuals;

5. On or about August 29, 2014, his new supervisor did not discuss an option to
telework, while other employees were allowed to telework;

6. After September 2014, when he contacted an EEO Counselor to initiate the
instant complaint, his new supervisor reduced communication with him and
avoided him; and

7. His performance plans for FY 2014/15 and FY 2015/16 were delayed and
contained mandatory requirements that were not found in his coworkers’
performance plans, which affected his ability to be promoted.

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 EEOC AJ.
Complainant timely requested a hearing. During the hearing process, the AJ reinstated some
dismissed claims and accepted Complainant’s amendment request, whereupon she requested the
Agency to supplement the record accordingly.
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Thereafter, over Complainant’s objections, the AJ granted the Agency’s September 2, 2016,
motion for summary judgment and issued a decision finding no discrimination on April 26, 2018.
The AJ found that summary judgment was appropriate because there was no genuine issue of
material fact. The AJ concluded that Complainant failed to establish by the preponderance of the
evidence in the record that he was subjected to discrimination as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ’s decision contains a number of factual errors.
According to Complainant, the AJ should have granted summary judgment in his favor.
Complainant also provides additional documents.

In response to Complainant’s appeal, the Agency contends that the AJ correctly granted its
motion for summary judgment. The Agency also states that Complainant has not made a
showing that the additional documents provided with his appeal were unavailable during the
investigation or during the hearing stage. The Agency requests that its final order be affirmed.

ANALYSIS AND FINDINGS

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 summary judgment decision, 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”).
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Summary Judgment

We first determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a
hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P.
56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no
genuine issue of material fact exists under the legal and evidentiary standards. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the
judge is to determine whether there are genuine issues for trial, as opposed to weighing the
evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving
party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255.
A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We have carefully reviewed the record and find that it is adequately developed. To successfully
oppose a decision without a hearing, Complainant must identify material facts of record that are
in dispute or present further material evidence establishing facts in dispute. Here, Complainant
contends that the AJ’s decision contains a number of factual errors. We find, however, that
ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing
was appropriate.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that he was subjected to discrimination when he was not promoted to IS-12
or given a step increase to IS-11-3.
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The Agency’s legitimate, nondiscriminatory reasons are that Complainant’s position did not have
promotion potential, so he was ineligible for noncompetitive promotion, and that S3 did not
award any step increases during her first few months with the Agency. We find that Complainant
has failed to establish that these legitimate, nondiscriminatory reasons are a pretext designed to
mask discrimination or retaliation.

Complainant alleged that he was discriminated against when he was denied telework, but the
preponderance of the evidence establishes that Complainant requested sick leave on the August
2014 date and voluntarily withdrew his request for telework as an accommodation because he
did not want to provide the requested medical documentation. The preponderance of the
evidence in the record does not establish that the Agency’s proffered reasons are pretextual.

Complainant alleged discrimination with respect to reduced communication from S3. The
Agency’s legitimate, nondiscriminatory reasons for the change are that Complainant asked S3 to
limit their conversations to work-related matters and that she was often in the office when he was
not and would leave notes on his desk. Here, Complainant has not met his burden of establishing
that these legitimate, nondiscriminatory reasons are a pretext for discriminatory or retaliatory
animus.

Finally, Complainant alleged that he was discriminated against when S3 was late in issuing his
performance plans and when his performance plan contained the word “mandatory.” The
Agency’s legitimate, nondiscriminatory reason for the late performance plans were that S3
needed to wait on delayed performance evaluations from her subordinates’ former supervisors,
and the legitimate, nondiscriminatory reason for the presence of the word “mandatory” was that
it was part of the form, meant to indicate that sections were mandatory for supervisors to
complete. The preponderance of the evidence in the record does not establish that these
legitimate, nondiscriminatory reasons are pretextual.

Denial of a Reasonable Accommodation

In order to establish that Complainant was denied a reasonable accommodation, Complainant
must show that: (1) he is an individual with a disability; (2) he is a qualified individual with a
disability; and (3) the Agency failed to provide a reasonable accommodation. See EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). 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). “The term “qualified,” with respect to an
individual with a disability, means that the individual satisfies the requisite skill, experience,
education and other job-related requirements of the employment position such individual holds
or desires and, with or without reasonable accommodation, can perform the essential functions of
such position. 29 C.F.R. § 1630.2(m).

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Upon a complainant’s request for reasonable accommodation, an employer may require that
documentation about the disability and the functional limitations come from an appropriate
health care or rehabilitation professional. See EEOC’s Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, Number
915.002, Question 6, (as revised Oct. 17, 2002). When an employee’s disability or need for an
accommodation is not known or obvious, an employer may ask an employee for reasonable
documentation about his or her disability, limitations, and accommodation requirements. See
Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans with Disabilities Act, Question 7 (July 27, 2000).

Here, we find that the Agency’s request for documentation regarding Complainant’s disability
and need for accommodation was reasonable. Complainant voluntarily withdrew his
accommodation request rather than comply. Accordingly, Complainant has failed to establish
that he was denied a reasonable accommodation.

Equal Pay Act Violation

The United States Supreme Court articulated the requirements for establishing a prima facie case
of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To
establish a prima facie case of a violation under the EPA, a complainant must show that she or he
received less pay than an individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions within the same establishment.
Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 21, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the EPA:
(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production of work (also referred to as an incentive or piecework system); or, (4) a
differential based on any factor other than sex. Id. We note that the EPA is limited to certain sex-
based differentials in wages. The EPA does not prohibit discrimination in other aspects of
employment, even those that have compensation-related consequences, such as hiring, firing,
promotion, transfer, or other issues. Wiley v. Department of the Treasury, EEOC Appeal No.
01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130
(7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope of the EPA but
actionable under Title VII)).

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir.
1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must
be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of skill,
effort, and responsibility used to measure the equality of jobs are not precisely definable. Id.
Skill includes such things as “experience, training, education, and ability.” 29 C.F.R.
§ 1620.15(a).
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Effort addresses the amount of “physical or mental exertion needed for the performance of a
job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of accountability required in
the performance of the job, with emphasis on the importance of the job obligation.” 29 C.F.R. §
1620.17(a).

Here, Complainant has failed to establish that he performed equal work that required equal skill,
effort, and responsibility, as his higher-paid female colleagues. C1, an IS-13 employee, was a
supervisor, and C4, who was received a step increase to IS-11-3, had extensive donor contacts,
whereas Complainant performed primarily executive assistant functions. Accordingly,
Complainant has failed to establish an EPA violation.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

We find that there is no evident connection between Complainant’s membership in any protected
class and the alleged harassment. To the extent that S3’s remarks about her prior employer
becoming more accepting of LGBT individuals and her work with people with HIV/AIDS in
Africa are related to Complainant’s race, color, sex, sexual orientation, or disability, we find that
the cited remarks did not affect a term or condition of employment, did not have the purpose or
effect of unreasonably interfering with the work environment, and did not create an intimidating,
hostile, or offensive work environment. Although the record only contains sparse description of
C1’s alleged comments regarding Complainant’s sexual orientation, we find that the
preponderance of the evidence fails to establish that the alleged comments were sufficiently
severe or pervasive to constitute a hostile work environment. Accordingly, Complainant has
failed to establish a prima facie case of a hostile work environment.

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 order because the AJ properly
granted summary judgment and because the preponderance of the evidence in the record does not
establish that discrimination occurred.
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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.
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)

You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to
file a civil action in a court of competent jurisdiction within two years or, if the violation is
willful, three years of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The filing of the 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

September 30, 2019
Date