0520140014
09-09-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520140014
Appeal No. 0720090044
Hearing No. 480-2007-00152X
Agency No. HS-06-TSA-001536
DECISION ON REQUEST FOR RECONSIDERATION
Both Complainant and the Agency timely requested reconsideration of the decision in EEOC Appeal No. 0720090044 (August 22, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
ISSUE PRESENTED
The issue presented is whether Complainant or the Agency met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (White/Hispanic), national origin (Hispanic), sex (male), and reprisal for prior EEO activity. By letter dated May 9, 2006, the Agency accepted the following claims for investigation:
1. You have alleged you were discriminated against based on race (White), national origin (Hispanic), [and] sex (Male) when, on October 4, 2005, you were demoted from your position as a Supervisory Transportation Security Officer to a Transportation Security Officer while employed at the Saipan International Airport, Saipan MP.
2. You have alleged you were discriminated against based on race (White), national origin (Hispanic), sex (Male), and reprisal (prior EEO activity) when you were subjected to a [sic] harassment (non-sexual) while employed as a Transportation Security Officer at the Saipan International Airport, Saipan MP. In support of your claim you allege the following:
a. On November 5, 2005, you were charged with 15 minutes of Absence without Leave (AWOL).
b. On December 18, 2005, you were placed on the night shift without being asked your preference and [were] not given the opportunity to bid for your preferred shift.
c. On December 21, 2005, you were given remedial training on the x-ray machine after being reported for missing a prohibited item.
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Prior to the hearing, Complainant filed a motion to amend his complaint to allege that the Agency retaliated against him for protected EEO activity by making derogatory remarks to potential employers, including but not limited to the California Department of Corrections and Rehabilitation (CDCR). The AJ (AJ1) who was initially assigned to the case ordered the Agency to conduct an expedited investigation of the issue, and the Agency conducted the investigation.
A second AJ (AJ2) held a hearing on June 2 and 3, 2008. In a decision dated June 4, 2009, AJ2 found that Complainant established that unlawful discrimination occurred.
The Administrative Judge's Decision
AJ2 defined the issues as follows:
(1) whether the Agency discriminated against Complainant on the bases of race, national origin, and sex when, on October 4, 2005, he was demoted from his position as a Supervisory Transportation Security Officer (STSO) to a Transportation Security Officer (TSO) during his probationary period;
(2) whether the Agency discriminated against Complainant and/or subjected him to harassment on the bases of race, national origin, and sex during the period November 5, 2005, and continuing when, on December 21, 2005, he was given 30 days of remedial training on the x-ray machine;
(3) whether the Agency subjected Complainant to a hostile work environment based on race, national origin, and reprisal from November 7, 2005, and ending when he resigned (constructively discharged) on June 9, 2006; and
(4) whether the Agency retaliated against Complainant for prior EEO activity when Agency management officials provided negative references to Complainant's prospective employers, including but limited to the CDCR.
AJ2 noted that, although Complainant withdrew several claims that were part of the hostile-environment claim, Complainant continued to present his case as if he had been subjected to a hostile work environment. AJ2 also noted that Complainant was not represented and that, in AJ2's view, Complainant did not understand the import of withdrawing the claims. AJ2 stated that, although "each one of these issues describe[s] a discrete event, [he] considered them in the context of an overall hostile work environment, as well, where the facts supported such consideration, and that is why [he] formulated issue three to support the [hostile-environment] claim litigated by the parties." Further, noting that the Agency's Federal Security Director (FSD) cited the alleged misconduct covered in the hostile-environment claim as a defense to the Agency's actions, AJ2 explained that he "accepted testimonial and documentary evidence from the parties concerning Complainant's [hostile-environment] claim that led to his resignation, i.e., constructive discharge."
AJ2 found that the Agency discriminated against Complainant on the bases of race and national origin when it demoted him. AJ2 did not credit the testimony of the Assistant Federal Security Director (AFSD), who issued the letter of demotion, because he found the AFSD "to be less than honest and forthright while testifying." He also found the AFSD's testimony to be inconsistent with that of other witnesses, including Complainant, whom he found to be credible. AJ2 determined that Complainant credibly testified that other supervisors engaged in conduct similar to his but were not demoted or disciplined. For example, he noted that Complainant established that other supervisors missed meetings and made mistakes with Performance Measurement Information System (PMIS) data but were not disciplined. AJ2 concluded that Complainant's demotion "was infected with intentional racial and national origin animus."
AJ2 similarly concluded that the Agency discriminated against Complainant on the bases of race and national origin when it required him to undergo 30 days of remedial training on the x-ray machine. The Agency ordered the training after a Lead Transportation Security Screener (LTSS) reported that Complainant missed a prohibited item during a screening. According to a December 20, 2005, Record of Oral Counseling, the remedial training called for Complainant to do one hour of "X-Ray Tutor" on a daily basis, use his "regular training for OLC/X-Ray/Email to the same effect," and be shadowed while on x-ray rotation. The Record of Oral Counseling listed a January 20, 2006, follow-up date. In his decision, AJ2 noted that the parties stipulated that one Transportation Security Officer (TSO) received three days of remedial training when she failed to detect an item during x-ray testing and that another TSO received three days of remedial training when he failed to detect an item during hand-wand testing. AJ2 found that Complainant credibly testified that 30 days of remedial training was excessive and punitive, that an STSO credibly testified that remedial training for missing a prohibited item should not be more than five to ten hours, that none of the Agency's managers provided a credible explanation for the amount of training required of Complainant, and that the testimony of the LTSS was not reliable. AJ2 concluded that Complainant established prima facie cases of race and national-origin discrimination and that the Agency failed to articulate a legitimate, nondiscriminatory reason for imposing such a severe sanction on Complainant. Accordingly, AJ2 found that race and national-origin discrimination motivated the requirement that Complainant undergo 30 days of remedial training.
With respect to Claim 3, AJ2 found that the Agency subjected Complainant to a hostile work environment based on race, national origin, and reprisal. AJ2 noted that, between Complainant's demotion and resignation, Complainant received five disciplinary actions: a November 7, 2005, Letter of Guidance and Direction charging Complainant with Absence without Leave (AWOL) for being 2.5 minutes late; a November 22, 2005, Memo of Counseling charging Complainant with AWOL for being two hours and 30 minutes late; a January 5, 2006, Letter of Reprimand charging Complainant with AWOL for being 15 minutes late; a February 9, 2006, Notice of Three-Day Suspension for saying, "As if they don't have a vagina" to a female supervisor in the presence of other co-workers; and an April 6, 2006, Leave Restriction based on the AWOL disciplinary actions. AJ2 concluded that a reasonable person in Complainant's position would have found the Agency's actions to be so severe or pervasive that it created a hostile, abusive, and offensive working environment. He further concluded that, although Complainant did not appear to be any more of a "problem employee" than several other employees, Complainant was treated more harshly because of his race and national origin. In addition, AJ2 found that the Agency's actions were motivated by reprisal for Complainant's EEO activity. Because Agency officials could not credibly articulate legitimate, nondiscriminatory reasons for treating Complainant differently, AJ2 concluded that the Agency subjected Complainant to discriminatory treatment.1
Finally, with respect to Claim 4, AJ2 found that the Agency retaliated against Complainant for prior EEO activity when the Agency's Human Resources Specialist (HRS) gave a negative reference to a potential employer of Complainant. After resigning from the Agency, Complainant applied for a position with the CDCR. By letter dated May 11, 2007, the CDCR informed Complainant that a background investigation determined that Complainant did not have the desirable qualifications for the position because of a "[n]egative employment record." AJ2 found that Complainant credibly testified that he informed the CDCR that he had been demoted from his supervisory position, had been charged with sexual harassment because he used the word "vagina," and had filed an EEO complaint. In addition, AJ2 noted that, in a Memorandum for the Record, the EEO Investigator stated that a CDCR representative told her "that the negative employment record stemmed in part from statements provided by the Complainant." AJ2 also noted that the HRS stated in her affidavit that a CDCR representative contacted her about Complainant, that she provided the dates of Complainant's employment but "did not and could not provide answers" to "several yes or no questions," and that she told the CDCR representative that she could not respond to his questions "about discipline against the Complainant . . . because of the Privacy Act."
AJ2 concluded that the HRS "was intimately involved in all of the discipline issued to Complainant," was aware of Complainant's prior EEO activity, and "actively participated [in] and supported [the AFSD's] unlawful discriminatory and retaliatory actions." He found that the HRS "strayed from the Agency's neutral and detached policy of discussing only dates of employment" when she stated that she could not talk about Complainant's disciplinary history because of the Privacy Act. AJ2 further found that the HRS's "suspicion-causing reference (which strayed from the amount of information Agency policy allows to be disseminated) was intentionally retaliatory."
Having found that the Agency discriminated against Complainant, AJ2 ordered the Agency to provide Complainant with make-whole relief. He ordered the Agency, among other things, to purge Complainant's personnel record of all disciplinary history referenced in the decision and to pay Complainant $80,000 in non-pecuniary compensatory damages. He also ordered the Agency to pay Complainant, at the CDCR position's rate of $74,000 per year, for lost earnings from March 1, 2007, until Complainant removed himself from the job market.
The Agency's Final Order
The Agency issued a final order rejecting the AJ's findings of discrimination and simultaneously filed an appeal with this Commission.
The Commission's Appellate Decision
In the previous decision, we reversed the Agency's final order, affirmed the AJ's finding of discrimination, modified the remedy, and remanded the matter to the Agency for corrective action. We gave deference to the credibility determinations of AJ2. In that regard, we noted that AJ2 had an opportunity to observe the witnesses during the hearing and that there was no objective evidence to contradict his credibility determinations.
With respect to Claim 1, we found that substantial evidence in the record supported AJ2's determination "that the Agency failed to present any credible evidence to directly dispute Complainant's assertion that other STSOs had engaged in similar conduct and were not demoted." Similarly, with respect to Claim 2, we found that substantial evidence in the record supported AJ2's determination that the Agency failed to articulate a legitimate, nondiscriminatory reason for imposing the severe, 30-day-training requirement. We further found that substantial evidence supported AJ2's determination that the Agency's asserted reasons for the disciplinary citations and reprimands were a pretext for race and national-origin discrimination.
In addition, we concluded that AJ2 did not abuse his discretion by reinstating claims pertaining to Complainant's hostile-environment claim. We noted that AJ2 was not convinced that Complainant understood the import of withdrawing the claims and that, on appeal, Complainant asserted that AJ1 had given him misinformation during the pre-hearing phase. We found that substantial evidence supported AJ2's conclusion that the events at issue were based on Complainant's race, national origin, and prior EEO activity and that a reasonable person in Complainant's position would have found the Agency's conduct so severe or pervasive that it created a hostile work environment.
With respect to Claim 4, we found that substantial evidence supported AJ2's finding that the Agency subjected Complainant to reprisal for prior EEO activity when it provided a negative reference to CDCR. We concluded that substantial evidence supported AJ2's determination that HRS's reference, which strayed from the amount of information the Agency typically disseminated, was intentionally retaliatory.
Finally, with respect to the remedy that AJ2 ordered, we found that the award of $80,000 in compensatory damages was appropriate. We also found, however, that the award of $74,000 in make-whole relief was improper because it was too speculative. We noted that there was no evidence that Complainant would have gotten the job with CDCR absent the Agency's adverse action. Accordingly, we reversed AJ2's order with respect to this provision of the remedy.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In its request for reconsideration, the Agency argues that the previous decision involved clearly erroneous interpretations of material law and fact and will have a substantial impact on the policies, practices, and operations of the Agency.
The Agency argues that the previous decision erroneously failed to apply the "but for" causation standard that the Supreme Court discussed in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. __, 133 S. Ct. 2517 (2013) ("but for" causation applies to Title VII's anti-retaliation provision in section 704, 42 U.S.C. � 2000e-3). According to the Agency, substantial evidence does not support a finding that it provided a negative reference or subjected Complainant to harassment "but for" Complainant's prior EEO activity. The Agency asserts, as it did on appeal, that there is no evidence to support AJ2's finding that the HRS strayed from Agency policy or that the Agency provided negative information to Complainant's prospective employer. The Agency further asserts that Complainant has not shown that his prior EEO activity was the "but for" cause of HRS's responses to the CDCR. Similarly, the Agency contends that substantial evidence does not support a finding that the hostile work environment occurred "but for" Complainant's protected activity.
The Agency also argues, as it did on appeal, that Complainant did not present an actionable hostile-environment claim because the incidents at issue were discrete acts unaccompanied by abusive language or conduct. In addition, the Agency reiterates its argument that AJ2 abused his discretion by reinstating issues that Complainant had withdrawn. The Agency asserts that it was deprived of the opportunity to present evidence concerning the withdrawn issues. In addition, the Agency asserts that the previous decision will have a substantial impact on its policies, practices, and operations.
Further, the Agency asserts that the previous decision erroneously reversed the burden of proof and required the Agency "to disprove Complainant's speculation that other employees engaged in similar misconduct, but were not demoted or required to undergo appropriate training." According to the Agency, Complainant "failed to identify a single valid comparator."
Finally, the Agency claims that the previous decision "contains several erroneous interpretations of material fact." On that point, the Agency refers to such matters as supervisory meetings, PMIS data, and the stipulation regarding the remedial training that two TSOs received. The Agency argues that the remedial training ordered for Complainant "amounted to no more than twenty hours of x-ray specific training" and was "not an outrageous amount of training."
Complainant, in his request for reconsideration, argues that the previous decision erroneously reversed AJ2's award of $74,000 in make-whole relief. He asserts that, if the Agency had not discriminated against him, he would not have had a negative employment record and would have received a job offer from the CDRC.
ANALYSIS
We remind the parties that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant and the Agency have not done so here.
First, contrary to the Agency's argument, the Supreme Court decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. __, 133 S. Ct. 2517 (2013), does not apply to Complainant's claims. In Petitioner v. Department of Interior, EEOC Petition No. 0320110050 (July 16, 2014), the Commission found that the "but for" standard discussed in Nassar does not apply to retaliation claims by federal-sector applicants or employees under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., or the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., because the relevant federal-sector statutory language does not contain the "because of" language on which the Supreme Court based its holdings in Nassar and in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (requiring "but for" causation for ADEA claims brought under 29 U.S.C. � 623). These federal-sector provisions contain a "broad prohibition of 'discrimination' rather than a list of specific prohibited practices." See Gomez-Perez v. Potter, 553 U.S. 474, 487-88 (2008) (holding that the broad prohibition in 29 U.S.C. � 633a(a) that personnel actions affecting federal employees who are at least 40 years of age "shall be made free from any discrimination based on age" prohibits retaliation by federal agencies); see also 42 U.S.C. � 2000e-16(a) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin"). Accordingly, we find that the Commission's previous decision did not erroneously fail to apply Nassar to Complainant's claims. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140014 (Aug. 19, 2015); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720140037 (May 29, 2015); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720120041 (Mar. 12, 2015).
Similarly, we do not find the Agency's arguments regarding Complainant's hostile-environment claim to be persuasive. First, the Agency has not shown that the previous decision erroneously concluded that AJ2 did not abuse his discretion by reinstating the withdrawn issues. As the previous decision noted, AJ2 was not convinced that Complainant understood the import of withdrawing the issues, and Complainant stated on appeal that he had been misinformed. The Agency has not demonstrated that the previous decision's findings on this point involved a clearly erroneous interpretation of law or will have substantial impact on the policies, practices, and operations of the Agency.
Further, the Agency's argument that the incidents involved in the hostile-environment claim are discrete acts does not establish that the previous decision erroneously affirmed AJ2's finding of discrimination. The Commission has stated that a discrete act is independently actionable if it is raised in a timely manner. EEOC Compliance Manual Section 2: Threshold Issues, No. 915.003, at 2-IV.C.1.a. (Compliance Manual on Threshold Issues). A discrete act that is not raised in a timely manner is not independently actionable, but it may be considered as background evidence relevant to the timely claims. Id. The Commission also has stated:
An incident may be part of a hostile work environment even if it is also a discrete act. However, a discrete act of discrimination may be part of a hostile work environment only if it is related to abusive conduct or language, i.e., a pattern of discriminatory intimidation, ridicule, and insult. A discrete act that is unrelated to abusive conduct or language ordinarily would not support a hostile work environment claim.
Id. at 2-IV.C.1.b. (footnotes omitted).
In this case, we need not determine whether the incidents forming the basis of the hostile-environment claim were discrete acts unrelated to abusive conduct or language. The Agency has not argued that Complainant failed to raise the incidents in a timely manner. Further, as the previous decision correctly held, substantial evidence supports AJ2's conclusion that the incidents were based on Complainant's race, national origin, and prior EEO activity. Thus, regardless of whether we analyze the evidence under a hostile-environment theory or a straightforward disparate-treatment theory, we reach the same conclusion: the Agency discriminated against Complainant with respect to these matters.
In addition, we find no merit to the Agency's assertion that the previous decision required the Agency to disprove Complainant's allegations. AJ2 expressly found that the AFSD was not a credible witness and that Complainant credibly testified that other supervisors engaged in conduct similar to his but were not demoted or disciplined. The previous decision's conclusion that substantial evidence supported the finding that the Agency failed to present credible evidence to dispute Complainant's assertion was not, as the Agency claims, an attempt to place the burden of proof on the Agency. Instead, it was a determination that the weight of the evidence supported Complainant's discrimination claim.
Finally, the Agency has not demonstrated that the previous decision involved a clearly erroneous interpretation of material fact. Although the Agency disagrees with several findings of fact, it has not shown that any of them was clearly erroneous.
With respect to Complainant's request for reconsideration, we find that Complainant has not shown that the previous decision erroneously reversed AJ2's award of $74,000 in make-whole relief. As the previous decision correctly noted, the award was too speculative.
After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the requests. The decision in EEOC Appeal No. 0720090044 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
Within one-hundred and twenty (120) calendar days of the date this decision becomes final, the Agency, to the extent that it has not done so already, is ORDERED to take the following actions:
1. purge Complainant's personnel record of all disciplinary history referenced in this decision;
2. award Complainant back pay in the amount of the difference in pay between a STSO and a TSO from October 4, 2005, through his resignation on June 9, 2006, including interest based upon the interest rate charged by the IRS for delinquent payments for the period of October 4, 2005, to the present day;
3. reimburse Complainant for any loss of wages associated with AWOL charges or disciplinary action during the period of time referenced in the above-captioned case, including his 3-day suspension without pay, including interest based upon the interest rate charged by the IRS for delinquent payments to the present day;
4. ensure that the relevant management officials who participated in the unlawful discrimination referenced herein do not do so again by administering training. Such training shall include, but is not limited to, EEO awareness training, especially focusing on Title VII with particular emphasis on race, national origin, and harassment/hostile work environment issues. To the extent that the Agency still has functional control over those employees responsible for the illegal actions, the Agency shall require these employees to attend a minimum of forty (40) hours of EEO awareness training annually for the next three years;
5. consider taking appropriate disciplinary action against the responsible management officials. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall furnish documentation of their departure date(s);
6. restore to Complainant any annual leave, sick leave, and any other equitable remedy to which Complainant would otherwise be entitled had he not been subjected to unlawful discrimination and reprisal;
7. compensate Complainant for non-pecuniary damages in the amount of $80,000;
8. award Complainant costs associated with his successful prosecution of his EEO cases in the total amount of $2,097.59.
POSTING ORDER (G0914)
The Agency is ordered to post at its Saipan International Airport in Saipan, MP, facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2015
Date
1 AJ2 found that Complainant failed to establish that he was constructively discharged when he resigned.
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