Devon H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181822 (E.E.O.C. Sep. 30, 2019)

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

Devon H.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181822

Agency No. HS-TSA-08579-2008

DECISION

On April 24, 2018, 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
March 13, 2018, final decision 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision (FAD).

ISSUES PRESENTED

The issues presented are whether the Agency awarded the appropriate amount of compensatory
damages; and whether the Agency’s determination that Complainant had not established that he
was entitled to reimbursement for the tax consequences of his back-pay award or attorney’s fees
and costs was correct.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Federal Air
Marshal at the Agency’s Charlotte, North Carolina Field Office. Complainant has filed numerous
complaints against the Agency. He has also filed several appeals with the Commission.

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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We do not find it necessary to restate that long history in this decision, but we do note the following
salient facts: on September 28, 2017, the Agency issued a FAD finding that it engaged in two
incidents of unlawfully disclosing Complainant’s confidential medical information in violation of
the Rehabilitation Act.2 The Agency ordered the following remedial measures:

a. Conduct EEO training for the management officials involved in the complaint,
to include two hours of training focused on disability discrimination, and in
particular, the legal obligation to refrain from disclosing medical information.

b. Consider taking disciplinary action against the management officials involved in
the unlawful medical disclosure, and report to its decision, and reasoning for any
action taken.

The Agency also directed Complainant to submit his request for compensatory damages and
attorney’s fees, if any. On October 20, 2017, Complainant submitted memoranda and
documentation in support of his claim for compensatory damages and attorney’s fees.3

On March 13, 2018, the Agency issued a FAD on compensatory damages, entitlement to
compensation for adverse tax consequences of back pay, and attorney’s fees and costs. The
decision determined that Complainant was not entitled to compensation for adverse tax

2 These allegations arose from Complainant’s motion to amend complaints HS-TSA-08579-2008
and HS-TSA-01276-2010.
3 The Commission, in an earlier decision, found disability and reprisal discrimination in HS-TSA-
05282-2006 when:

2. On September 1, 2006, he learned that the Agency did not select him for a J-
Band Supervisory Federal Air Marshal position, advertised under Vacancy
Announcement Number FAMS-ALL-06-0030, at the Charlotte Field Office.

The Commission also found, in another decision, discrimination based on reprisal in HS-TSA-
08579-2008/HS-TSA-01276-2010 when:

4. On an unspecified date in 2008, a Federal Air Marshal informed Complainant that
a FAM and an Assistant Special Agent in Charge entered into a bet over the outcome
of Complainant's previously filed EEO complaint;
9. On May 21, 2010, after Complainant informed his supervisor of his intent to file
an EEO complaint, the Special Agent in Charge leaped out of his chair, reached
toward Complainant, began shouting at him, told Complainant not to threaten him,
and said that Complainant’s “communication skills suck.” Complainant felt
physically threatened and reported this incident to management as an assault, but no
action was taken; and
11. On or around May 28, 2010, Complainant learned that he was under an internal
investigation.
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consequences of his back-pay award that he received from another finding of discrimination
because he failed to present any evidence of resulting tax consequences from the back-pay award.
Additionally, Complainant was not awarded attorney’s fees or costs because there was no evidence
in the record of a petition for attorney’s fees and costs. Complainant was awarded $3000 in non-
pecuniary compensatory damages for the improper disclosure of his medical information.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s compensatory damages award was
insufficient to make him whole for the discriminatory acts he suffered at the hands of the Agency.

With respect to HS-TSA-05282-2006, Complainant requests that the Commission order the
Agency to:

1. Grant him a 1% base pay increase for in the form of retroactive in position increase for
rating years 2007, 2009, 2010, 2013, 2014, and 2015;
2. Grant him a cash performance award of $1000 for each year during the back-pay period to
include 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, and 2015;
3. Make contribution matching fund deposits into Complainant’s TSP account for the period
of the back pay from September 2006 to May 2016;
4. Recalculate the back-pay amount to include the amounts provided to the TSP account and
retirement;
5. Turnover all documents to him that the Agency used to determine the already paid out
back-pay amounts to include any and all spread sheets;
6. Turnover all documents to him the Agency used to determine the new back-pay amounts
to include all spread sheets;
7. Pay him for the scheduled overtime it deducted from his back-pay in May 2016;
8. Pay him interest on the money owed for the scheduled overtime pay that was deducted in
May of 2016;
9. Pay him all interest owed on the new back-pay amount; and
10. Allow him a minimum of 180 days to have his adverse tax consequences calculated after
the Agency turns over the requested tax information.

With respect to HS-TSA-01276-2010 Complainant requests that the Commission order the Agency
to:

1. Pay him $150,000 in compensatory damages;
2. Pay him $2916.73 for medication costs;
3. Reimburse him for one-half the cost of all medications related to the medical conditions he
now suffers from due to the Agency’s discrimination; and
4. Pay him $20.90 for the cost of postage.

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In response, the Agency contends that Complainant provided little evidence linking the improper
release of his medical records to any alleged emotional harm, and that Complainant continues to
reference “ongoing discrimination,” that he alleges occurred, however, there was no specific
finding of ongoing discrimination. The Agency maintains that the $3000.00 in compensatory
damages awarded in the instant case is in line with Commission precedent, and that nothing in the
record, or presented on appeal warrants an increase in the award.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

At the outset, the Commission acknowledges Complainant’s arguments on appeal referencing
matters that are not at issue here. The only issues that were addressed in the Agency’s March 13,
2018 FAD are the compensatory damage award due to the Agency’s improper disclosure of his
medical information; and the Agency’s determination that he did not establish an entitlement to:
(1) reimbursement for the tax consequences from receiving a lump sum back-pay award or (2)
attorney’s fees. In part, Complainant is attempting to use the instant appeal to contest the Agency’s
alleged non-compliance with previous Commission orders. This is not the proper venue to address
those matters. We do note, however, that on March 21, 2019, the Commission issued a decision
that addressed Complainant’s claim for compensatory damages concerning the issues where it
found discrimination, i.e., the matters set forth in footnote 3 of this decision. See EEOC Appeal
No. 0120171868.

Compensatory Damages

When discrimination is found, an agency must provide a complainant with a remedy that
constitutes full, make-whole relief to restore her as nearly as possible to the position she would
have occupied absent the discrimination. See, e.g., Franks v. Bowman Transp. Co., 424 U.S. 747,
764 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975); Adesanya v. U.S. Postal
Serv., EEOC Appeal No. 01933395 (July 21, 1994). To receive an award of compensatory
damages, a complainant must demonstrate that she has been harmed by the agency’s
discriminatory action; the extent, nature, and severity of the harm; and the duration or expected
duration of the harm.

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Rivera v. Dep’t of the Navy, EEOC Appeal No. 01934157 (July 22, 1994), req. for reconsideration
denied, EEOC Request No. 05940927 (Dec. 11, 1995); Compensatory and Punitive Damages
Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.002 (July 14,
1992), at 11-12, 14.

Compensatory damages may be awarded for the past pecuniary losses, future pecuniary losses,
and non-pecuniary losses which are directly or proximately caused by the agency's discriminatory
conduct. Enforcement Guidance: Compensatory and Punitive Damages Available Under Section
102 of the Civil Rights Act of 1991 (Enforcement Guidance), EEOC Notice No. 915.002, at 8
(July 14, 1992). Objective evidence of compensatory damages can include statements from the
complainant concerning his or her emotional pain or suffering, inconvenience, mental anguish,
loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury
to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result
of the discriminatory conduct. Statements from others, including family members, friends, health
care providers, or other counselors (including clergy) could address the outward manifestations or
physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression,
marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous
breakdown. Lawrence v. U.S. Postal Service, EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing
Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)).

Evidence from a health care provider or other expert is not a prerequisite for recovery of
compensatory damages for emotional harm. Complainant’s own testimony, along with the
circumstances of a particular case, can suffice to sustain his burden in this regard. The more
inherently degrading or humiliating the agency’s action is, the more reasonable it is to infer that a
person would suffer humiliation or distress from that action. The absence of supporting evidence,
however, may affect the amount of damages appropriate in specific cases. See Banks v. U.S.
Service, EEOC Appeal No. 07A20037 (Sept. 29, 2003) (citing Lawrence v. U.S. Postal Service,
EEOC Appeal No. 01952288 (Apr. 18, 1996)).

Pecuniary Compensatory Damages

Pecuniary losses are out-of-pocket expenses that are incurred because of the employer’s unlawful
action, including moving expenses, medical expenses, psychiatric expenses, physical therapy
expenses, and other quantifiable out-of-pocket expenses. Guidance at 14. For claims seeking
pecuniary damages, objective evidence should include documentation of out-of-pocket expenses
for all actual costs and an explanation of the expense, e.g., medical billings, other costs associated
with the injury caused by the agency’s actions, and an explanation for the expenditure. Id. at 9.

We concur with the Agency’s finding that Complainant is not entitled to any of the requested
amounts in non-pecuniary compensatory damages in this case. Complainant requested
reimbursement for one-half the cost of the medication used to treat a condition he alleges was
exacerbated by the discrimination. Additionally, he requested an unspecified amount to reimburse
his health insurance company for one-half of all medical costs associated with his condition.
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Complainant was unable to establish that he suffered any pecuniary loss as a result of the
discrimination at issue here. The record reflects that Complainant was previously diagnosed with
these medical conditions, and he failed to demonstrate how the discrimination exacerbated them
in any way. With respect to the claim for reimbursement to his health insurance company, even
assuming he established a proper nexus between the unlawful disclosure of his medical
information and his medical condition, he failed to show how any expenses by his insurance
company resulted in an out-of-pocket losses for him that is recoverable as compensatory damages.

Non-pecuniary Compensatory Damages

An award of non-pecuniary compensatory damages should reflect the extent to which an agency’s
discriminatory action directly or proximately caused the harm as well as the extent to which other
factors also caused the harm. Johnson v. Dep’t of the Interior, EEOC Appeal No. 01961812 (June
18, 1998). It is Complainant’s burden to provide objective evidence in support of his claim and
proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Service, EEOC
Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep’t of the Navy, EEOC Appeal No. 01933956
(Nov. 24, 1993). The Commission recognizes that not all harms are amenable to a precise
quantification; the burden of limiting the remedy, however, rests with the employer. Chow v. Dep’t
of the Army, EEOC Appeal No. 01981308 (Feb. 12, 2001). Moreover, the amount of an award
should not be “monstrously excessive” standing alone, should not be the product of passion or
prejudice, and should be consistent with the amount awarded in similar cases. Cygnar v. Chicago,
865 F.2d 827, 848 (7th Cir. 1989); EEOC v. AIC Security Investigations, Ltd., 823 F. Supp. 571,
574 (N.D. Ill. 1993).

Complainant contends that the Agency’s compensatory damages award of $3000.00 in non-
pecuniary damages was an insufficient amount. He maintains that he submitted evidence to support
his request for $150,000.00 for the ongoing discrimination he endured. Complainant does not cite
to any Commission cases where higher awards were made in case involving two incidents of an
improper disclosure of medical information that occurred on the same day by the same
management official. Additionally, he has not shown serious psychological and emotional injuries
that required treatment for an indefinite period. While Complainant maintains his medical
condition was exacerbated, he relies on his theory of “ongoing discrimination” to support this
contention, which was not found by the Commission or the Agency.

We find that Complainant has not established that he is entitled to an increase in the amount
awarded by the Agency. The Commission notes that the Agency found discrimination on the two
incidents of improper disclosure of medical information, and that the sole issue up for
consideration in this appeal is the compensatory damages award associated with that specific
finding. Based on the disclosure, the Agency awarded Complainant $3000.00. The Commission
finds that the evidence in the record or submitted on appeal does not support an award of non-
pecuniary damages greater than $3000.00. We find that this amount is adequate to compensate
Complainant for the harm shown to be causally related to the discriminatory conduct.

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We find that the amount of the award meets the goals of not being “monstrously excessive”
standing alone, not being the product of passion or prejudice, and being consistent with the amount
awarded in similar cases. See Wilda M. v Dep’t of Homeland Security, EEOC Appeal No.
0120142660 (Dec. 2, 2016) (Commission affirmed Agency’s $4000 award based on a single event
that involved an illegal disclosure of medical information); Merilyn W. v. U.S. Postal Serv. EEOC
Appeal No. 0120140433, (Apr. 8, 2016) (Commission reversed an Agency’s award of $1,000 and
raised the award to $2,000, finding that $1000 was insufficient to compensate Complainant for the
emotional stress caused when her supervisor discussed her health with the Union Steward); Grazier
v. Dep’t of Labor, EEOC Appeal No. 0120102711 (Sep. 30, 2010) ($2,000 awarded for
humiliation and embarrassment when Agency disclosed confidential medical information); and
Brunnell v. U.S. Postal Serv., EEOC Appeal No. 07A10009 (Jul. 5, 2001) ($2,000 awarded for
embarrassment, anger and stress due to violation of medical confidentiality).

Tax Liability for Lump Sum Back Pay Award

The Commission has held that an award to cover additional tax liability from a lump-sum payment
of back pay is available to employees. Goetze v. Dep’t of the Navy, EEOC Appeal No. 01991530
(Aug. 22, 2001); Holler v. Dep’t of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (Aug.
22, 2001); Van Hoose v. Dep’t of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (Aug.
22, 2001). This award is available even if a decision does not explicitly order it. See Emerson S.
v. United States Postal Serv., EEOC Petition No. 0420130026 (Nov. 20, 2015) (noting that
decisions on petitions for enforcement have permitted claims for additional tax liability in cases
where the Commission has not mentioned it in the original order); Cecile S. v. United States Postal
Serv., EEOC Petition No. 0420120013 (Nov. 4, 2015) (agency erroneously found that petitioner
was not entitled to an award for tax liability merely because AJ did not specifically order it as a
remedy); Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120113377 (May 14,
2014) (complainant entitled to reimbursement for additional tax liability even though AJ’s order
was silent on the matter).

In the case of a lump-sum back-pay award, individuals are compensated for the extra tax liability
that they are required to pay as a result of receiving a lump-sum award, as opposed to the actual
amount of taxes that they would have paid if they had received the funds over a period of time,
usually several years. It is the receipt of the funds in one lump sum that causes the extra tax liability,
not the back-pay award itself. The Commission has found that an employee has the burden to prove
the amount to which she or he claims entitlement, and courts have demanded probative
calculations. The tax-liability calculation must be based on the taxes that the individual would have
paid if he or she had received the back pay as a regular salary during the back-pay period. See
Cottrell v. Dep’t of Transp., EEOC Petition No. 04A30015 (Oct. 12, 2004) (citing Hukkanen v.
Int’l Union of Operating Engineers, 3 F.3d 231, 237 (8th Cir. 1993); Barbour v. Medlantic Mgmt.
Corp., 952 F. Supp. 857, 865 (D.D.C. 1997), aff’d, 132 F.3d 1430 (D.C. Cir. 1997)).

Complainant contends that the Agency failed to compensate him for the adverse tax consequences
associated with his back-pay award.
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The Agency reasoned that it declined to compensate Complainant for any adverse tax
consequences because he failed to present any evidence regarding the adverse tax consequences
of his award. We note that, in support of a claim for compensation for adverse tax consequences,
Complainant must submit evidence showing the difference between the taxes that he paid on the
lump-sum payment and the taxes that he would have paid had the salary been earned over time.
See Darlene F. v. Soc. Sec. Admin., EEOC Petition No. 0420140010 (Apr. 8, 2016) (‘It is
Petitioner’s burden to establish the amount of increased tax liability, if any.”). Complainant must
show more than the total tax liability arising from his receipt of the lump-sum award; he must
show the differential between this tax burden and the taxes that he would have paid if he had
received the back pay as part of his salary. Johnson v. Envtl. Prot. Agency, EEOC Petition No.
0420060035 (Nov. 5, 2007).

Furthermore, Complainant must “provide exact and detailed calculations showing the amount he
is claiming.” Emerson S. v. United States Postal Serv., EEOC Petition No. 0420130026 (Nov. 20,
2015); compare Stefan H. v. Dep’t of Justice, EEOC Petition No. 0420150008 (Feb. 18, 2016)
(agency ordered to compensate petitioner for additional tax liability where tax preparer’s letter
explained in detail the additional liability and a methodology for avoiding a continuing cycle of
tax penalties) with Cecile S. v. United States Postal Serv., EEOC Petition No. 0420120013 (Nov.
5, 2015) (tax preparer’s letter that listed amounts of increased tax liability for back-pay years but
did not explain how the amounts were calculated or include documentation indicating how the
figures were reached was insufficient to support entitlement to tax-consequences award). We
concur with the Agency’s finding that Complainant failed to present evidence of any kind
supporting a claim for compensation for adverse tax consequences. We find Complainant’s
argument that he needs information from the Agency to show the differential between the tax
burden associated with the back pay and the taxes that he would have paid if he had received the
back-pay as part of his salary to be without merit. Complainant is aware of his back-pay award,
and he is aware of what his salary was at the time in question. There is no dispute that he did not
present evidence in support of his claim for compensation.4

Finally, as to attorney’s fees and costs, we must agree with the Agency that Complainant is not
entitled to an award of reasonable attorneys’ fees and costs because there is no evidence in the
record that an attorney, on his behalf, ever submitted a petition for attorney’s fees and costs, or
that Complainant is otherwise entitled to the recovery of attorney’s fees and costs.

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 award of $3000 in compensatory
damages.

4 The Agency correctly noted that the EEOC has not recognized any entitlement to awards to cover
tax liability for interest and compensatory damages. See Vashi v. U.S. Postal Serv., EEOC Appeal
No. 07A50056 (Dec. 5, 2007).
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We find the amount awarded in line with Commission precedent and based on the evidence in the
record find no basis to amend the award amount. The Agency will comply with the Order set forth
below.
ORDER
To the extent that the Agency has not already done so, within 120 days, the Agency shall:

Pay Complainant $3,000.00 in non-pecuniary compensatory damages;
The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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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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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