Dominica H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 11, 2017

0120143147 (E.E.O.C. Jan. 11, 2017)

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

Dominica H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 0120143147

Hearing No. 520-2013-00303X

Agency No. 1Y-520-0021-07

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 22, 2014 final order concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Manager,
Distribution Operations (MDO), EAS-24, at the Agency’s New York International Service
Center in Jamaica, New York. In February 2000, Complainant suffered an injury to her right
knee. By October 2005, Complainant’s restrictions included sitting intermittently four to eight
hours/day; standing, walking, pushing/pulling, and operating machinery one to two hours/day;
and no climbing/kneeling. Complainant was assigned to Building 197. By June 2007,
Complainant was able to sit and stand intermittently, and walk for four to six hours per day.

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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In May 2007, the Plant Manager (PM) notified Complainant that she was being reassigned to
Building 250. Building 250 is adjacent to Building 197, and was not a significant increase in
walking distance and time. Additionally, Complainant’s duties remained essentially the same.
Complainant claims that when she reported to Building 250, she had no specific work
assignment. Complainant alleges that she asked the Lead MDO (Lead MDO-1) questions on
several occasions, and Lead MDO-1 started making offensive comments about her medical
condition.

Complainant had previously requested Monday and Tuesday as her rest days. The request was
approved by Lead MDO-1. The rest days of all the MDOs were generally staggered to ensure
all seven days of the week would be covered. On June 2, 2007, Complainant requested to
change her rest days to Saturday/Sunday or Friday/Saturday. Lead MDO-1 denied the request.

The Lead MDO position was created by a former Plant Manager in 1998 to ensure that one
official would be in charge of administrative and operational functions on each of the three
tours. As a result, the Lead MDO supervises the other MDOs. Additionally, EAS employees
are not paid the same salary based only on seniority. EAS employees’ salaries are based upon
their annual evaluations, and their annual salary increases are directly related to their
performance rating.

The core operations of Building 197 consisted of processing Registry mail. The Plant Manager
(PM) reassigned the Building 250 MDO to be Acting Lead MDO (Lead MDO-2) in Building
197. Lead MDO-2 had extensive knowledge and experience with Registry Operations. Lead
MDO-2 was at the EAS-22 level at Building 250. Based on an increase in responsibilities,
Lead MDO-2 was paid at the EAS-24 level while he worked at Building 197.

In October 2007, a supervisor reported finding an arrangement of ropes resembling nooses to
Lead MDO-1. Lead MDO-1 called the maintenance department, and a Maintenance Engineer
came to her office. The Engineer indicated that he had used the ropes to reset tripped circuit
breakers. Lead MDO-1 notified PM about the incident, and PM immediately reported the
incident to the Inspection Service. The Inspection Service initiated an investigation and
concluded that the ropes had been hanging for some time and that they were maintenance-
related. The Inspection Service determined that there was no racial motivation behind the
ropes, but still recommended that they be removed. The ropes were subsequently removed.
Complainant was not present when the ropes were found.

Also in October 2007, a few days later, the Inspection Service received another allegation
about ropes resembling nooses in the Airline Receiving Center, an area Complainant would not
have seen. An employee reported that the ropes were used to hold labels so that employees
could easily remove a sticker to tag mail. The Inspection Service recommended that the ropes
be removed, and they were promptly taken down. On October 12, 2007, PM issued two
memorandums to all employees describing the findings of the investigation, reiterating the
Agency’s Zero Tolerance Policy, and advising that tying ropes to resemble nooses would not
be tolerated.
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On November 1, 2007, Complainant claims that Lead MDO-1 disrupted a meeting by yelling
and screaming racial slurs. Complainant alleges that Lead MDO-1 referred to her and four
other supervisors as “niggers.” Management collected statements from witnesses to the
incident. All of the witnesses indicated that Lead MDO-1 did not use racial slurs and most
stated that Complainant disrupted the meeting by yelling and using the acronym “HNIC,”
which meant “Head Nigger in Charge.” Witnesses stated that Lead MDO-1 only asked what
HNIC meant.

On August 13, 2007 (and amended on November 9, 2007), Complainant filed a formal
complaint alleging that the Agency discriminated against her and subjected her to a hostile
work environment on the bases of race (African-American), disability, age (59), and in reprisal
for prior protected EEO activity as evidenced by multiple incidents including, inter alia2:

1. On May 23, 2007, Complainant was denied reasonable accommodation when she
was notified of an assignment and location change;
2. On June 2, 2007, Complainant was denied the opportunity for a rest day change
from Monday/Tuesday to Saturday/Sunday or Friday/Saturday;
3. On June 2, 2007, management created Lead, Manager Distribution Operations
positions without posting the jobs and assigned the positions to specific MDOs;
4. On June 2, 2007, Complainant was denied higher pay3;
5. On June 7, 2007, Complainant received a pay adjustment dated May 31, 2007,
resulting from an incident wherein another MDO interfered in Complainant's area
of responsibility4;
6. On June 20, 2007, Complainant was subjected to harassment and humiliation when
a Lead MDO made offensive remarks regarding the Complainant’s job-related
medical condition and restrictions;
7. On October 11, 2007, after Complainant requested an investigation to be conducted
concerning an incident occurring on October 5, 2007, when she was subjected to
terrorism, hate, and a hostile work environment when five nooses were found in her
area of responsibility, she was given a copy of a service talk that did not include the

2 This case arose before January 1, 2009, the effective date of the Americans with Disabilities
Act Amendments Act of 2008, which made a number of significant changes to the definition of
disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
Because this matter occurred in 2007, the Commission will use the analytical framework as it
existed before the enactment of the ADA Amendments Act of 2008, to determine whether
Complainant is an individual with a disability.

3 Complainant clarified that Lead MDO-2 was upgraded to EAS-24 creating unequal pay for
performing similar work.

4 Complainant corrected this claim to state that she did not receive a copy of an employee’s pay
adjustment.
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MDO’s verbal statement that an African-American employee used the nooses in his
work;
8. On October 17, 2007, the MDO undermined Complainant’s authority when she
changed procedures and revised schedules established in Complainant's area of
responsibility;
9. On October 31, 2007, the MDO made disparaging remarks during a supervisor’s
meeting regarding Complainant’s work performance and her authority as an MDO;
10. On October 31, 2007, the MDO undermined Complainant’s authority when she told
Complainant that she had no right to tell a white man what to do concerning
unauthorized use of a jitney;
11. On November 1, 2007, the MDO disrupted a meeting, yelling and screaming racial
slurs, referring to the Complainant and four other supervisors as "niggers”; and
12. On November 7, 2007, the MDO placed the Complainant and/or the Postal Service
in a position of liability when she permitted an employee in Complainant’s area of
responsibility to perform work against his medical restrictions.5

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the Agency’s May 3, 2010 motion
for summary judgment, and issued a decision without a hearing on September 23, 2010.

In the decision, the AJ concluded that Complainant had not been denied reasonable
accommodation or subjected to discrimination, reprisal, or a hostile work environment. The
Agency subsequently issued a final order fully implementing the AJ’s decision. Complainant
appealed and, in Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120110570 (June 13,
2013), the Commission determined that the AJ erred in granting summary judgment in favor of
the Agency, as there were genuine issues of material fact in dispute. As a result, the
Commission vacated the final order and remanded the matter for a hearing. On remand, the
AJ held a hearing on November 6 and 7, 2013, and issued a decision on August 8, 2014.

In her decision, the AJ assumed, arguendo, that Complainant established a prima facie case of
discrimination and reprisal, and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to her rest days, Agency
management explained that Complainant had initially requested Monday/Tuesday rest days,
which was approved by Lead MDO-1. To grant Complainant’s request for a change, Lead
MDO-1 would have to alter the schedule of all the other MDOs. Management based MDO
rest days on the needs of the facility and granting Complainant’s request would compromise
the needs of the facility and staffing. As to her claim related to the filling of the Lead MDO
position, the Agency stated that the concept of the Lead MDO position was created by the

5 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim. Complainant failed to raise any challenges to this dismissal before the AJ or
on appeal; therefore, the Commission will not address it in this decision.
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previous Plant Manager in October 1998. Management wanted to arrange the staff to make the
operations at the facility most efficient. Management selected the employee for the position
based on the area where they were working and the experience and time that they have been
working in international mail. Lead MDO-1 was chosen for the position of Lead MDO
because she had demonstrated more applicable experience, knowledge, and familiarity with the
operations than Complainant. In fact, at the time she was appointed, Lead MDO-1 had 27
years of experience.

Regarding Complainant’s unequal pay claim, the AJ determined that it was inappropriate for
Complainant to compare herself to Lead MDO-2 because their work situations were not
identical and therefore, Lead MDO-2 was not a proper comparator. Complainant and Lead
MDO-2 do not perform similar work because Lead MDO-2 was in charge of running all
Registry operations for all three tours in Building No. 197, whereas Complainant had only a
single tour when she worked in the Registry building. Furthermore, the Agency explained that
EAS employees, unlike craft employees, were not paid the same salary based solely on their
seniority. Instead, EAS employees received annual salary raises based on their annual pay for
performance evaluation ratings. Therefore, Lead MDO-2, who regularly received very high
ratings, received very high raises.

As to Complainant’s claim that the Agency failed to reasonably accommodate her when
management changed her reporting location and assignment, the AJ found that Complainant’s
reassignment from Building No. 197 to Building No. 250 was within the scope of her medical
restrictions. The AJ noted that Building No. 250 was directly adjacent to Building No. 197;
therefore, the transfer did not cause Complainant to significantly increase the distance and time
she needed to walk. Additionally, Complainant was not asked to do any work assignments that
were significantly different from the duties she performed while in Building No. 197. As a
result, the AJ concluded that Complainant had not been denied reasonable accommodation.

Regarding Complainant’s claim that she was subjected to a hostile work environment, the AJ
determined that the alleged incidents were insufficiently severe or pervasive to establish a
hostile work environment. Further, the AJ found that Complainant failed to show that the
alleged conduct was based on discriminatory or retaliatory animus. For example, Complainant
claimed that Lead MDO-1 made offensive comments about her medical condition and
restrictions on two occasions. The AJ found that this claim was unsupported by any additional
evidence. The AJ additionally found no evidence that Lead MDO-1 made a comment about
Complainant having “no right to tell a white man what to do.” Further, Complainant alleged
that Lead MDO-1 made disparaging comments regarding Complainant’s performance and
authority during a supervisor’s meeting. A supervisor present during the meeting testified that
Lead MDO-1 made a subtle comment about Complainant’s performance, but nothing
pertaining to Complainant’s protected classes.

Regarding the nooses incident, the AJ initially noted that Complainant was not present when
the nooses were discovered and did not witness them firsthand. Furthermore, Agency
management took immediate action as soon as the matter was reported. The Inspection Service
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concluded from their investigation that the arrangements of rope reported on October 10, 2007,
were not nooses, but were actually ropes used by the maintenance staff to turn tripped breakers
on and off. They further found that the second arrangement of ropes found on October 12,
2007, was used to hold labels and was not racially-motivated nooses. Therefore, the AJ
concluded that these arrangements of rope were legitimately related to the maintenance and
operation of the facility and were misinterpreted by some employees in the office. Moreover,
the Agency took immediate remedial action to remove the arrangements of rope and sent out
two memos to all staff to reiterate the office’s Zero Tolerance policy.

Finally, with respect to Complainant’s allegation that Lead MDO-1 used a racial slur during a
meeting, the AJ determined that witnesses present at the meeting testified that Lead MDO-1
never uttered any racial slurs. Witnesses testified that Complainant disrupted the meeting and
used the acronym “HNIC.” Witnesses further testified that Lead MDO-1 only asked what
“HNIC” meant. As a result, the AJ concluded that there was no evidence supporting
Complainant’s claim that this incident occurred as alleged.

The AJ found that Complainant failed to show that she was subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final
order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency did not provide the documents she requested
during discovery and the AJ failed to respond to her motion to compel. Complainant claims
that the Agency covered up its discriminatory acts and made contradictory statements.
Complainant alleges that Lead MDO-1 used her position to harass and discriminate against her.
Complainant believes that Agency management did not take prompt action upon the discovery
of the ropes. Accordingly, Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held. See 29 C.F.R.
§ 1614.405(a).

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
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it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015).

ANALYSIS AND FINDINGS

Initially, with respect to Complainant's contentions on appeal regarding the AJ’s handling of
her case, the Commission notes that EEOC regulations and Commission precedent provide AJs
with broad discretion in the conduct of hearing and related proceedings. See 29 C.F.R.
§ 1614.109; see also EEO MD-110, at Ch. 7. The Commission has reviewed the record and
finds no abuse of discretion by the AJ. The Commission is unable to find any evidence of
bias, or other reversible error, resulting from the manner in which the AJ managed and
adjudicated this case.

Denial of Reasonable Accommodation

Under the Commission's regulations, an agency is required to make reasonable
accommodations to the known physical and mental limitations of an otherwise qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that
Complainant is a qualified individual with a disability.

Here, Complainant claimed that she was denied reasonable accommodation when management
transferred her from Building 197 to Building 250. In June 2007, Complainant was on limited
duty with restrictions which included no more than 4-6 hours of walking and intermittent
sitting, standing, and walking. ROI, at 176. Substantial record evidence supports the AJ’s
finding that Complainant’s duties in Building 250 were not significantly different than her
previous duties in Building 197. Further, there is no evidence that Complainant’s duties in
Building 250 violated her restrictions as the record shows that the transfer did not increase the
distance and time she needed to walk. Hr’g Tr., Vol. 1, at 99. It is well-settled that while
Complainant is entitled to an effective reasonable accommodation, she is not entitled to the
accommodation of her choice. See Castaneda v. U.S. Postal Serv., EEOC Appeal No.
01931005 (Feb. 17, 1994). The Commission finds that substantial record evidence supports
the AJ’s finding that the Agency satisfied its obligation to provide Complainant with a
reasonable accommodation.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
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a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993).

Upon review, the Commission finds that assuming arguendo that Complainant established a
prima facie case of discrimination and reprisal, substantial record evidence shows that Agency
officials articulated legitimate, nondiscriminatory reasons for their actions. For example,
Complainant’s request for a change in rest days was denied because Lead MDO-1 had already
approved Complainant’s request for Monday/Tuesday rest days and changing it would
compromise the MDO staffing schedule. ROI, at 194-95; Hr’g Tr., Vol. 1, at 141-47.
Regarding the selection of Lead MDOs, PM testified that the position was created by his
predecessor. Further, PM testified that he chose Lead MDO-1 for the position based on her 27
years of experience at the facility and her familiarity with the operations. Hr’g Tr., at 95.
Likewise, Lead MDO-2 was transferred to Building 197 due to his extensive familiarity with
the Registry operations. ROI, PM’s Decl. at 4.

Finally with respect to Complainant’s claim related to Lead MDO-2’s upgrade to EAS-24,
substantial record evidence indicates that Lead MDO-2 received higher level EAS-24 pay when
he worked at Building 197 due to expanded responsibilities, including running all Registry
operations for three tours in Building 197. ROI, PM’s Decl, at 4. By contrast, Complainant
was only in charge of Tour 2 when she worked in Building 197. Furthermore, PM confirmed
that EAS employees are not paid the same salary based solely on seniority and they receive
salary raises based on their Pay for Performance evaluations. ROI, PM’s Decl., at 5. PM
affirmed the Lead MDO-2 regularly received very high ratings over the years and was
rewarded with high salary increases as a result. Id. Complainant presented no evidence
rebutting this explanation for any pay disparity.

The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation for its actions was a
pretext for discrimination or reprisal. The record and the facts gleaned at the hearing fail to
disclose any evidence purporting to show the Agency's actions were pretext for discriminatory
or retaliatory animus.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she 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 her 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
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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).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

Upon review, the Commission finds that substantial record evidence supports the AJ’s
conclusion that Complainant failed to show that she was subjected to conduct sufficiently
severe or pervasive to create a hostile work environment. In so finding, the Commission
acknowledges that several of the incidents alleged by Complainant are highly offensive and
objectionable; however, substantial record evidence supports the AJ’s finding that the record
lacks evidence demonstrating that the incidents occurred as alleged or were based on
Complainant’s protected classes. For example, with respect to the noose incidents, the matters
were referred to the Inspection Service immediately upon being reported and were thoroughly
investigated. Hr’g Tr., Vol. 1, at 101-06. The Inspection Service concluded that in both
instances, the usage of the rope was work-related. Id. at 103-05. Nonetheless, PM ordered
the removal of the ropes and issued memorandums to all employees about the findings of the
investigation and the Agency’s Zero Tolerance policy. Id. at 105-06. There is no evidence
any similar conduct recurred. Finally, with respect to Complainant’s claims that Lead MDO-1
used racial slurs during a meeting, substantial record evidence supports the AJ’s finding that it
was Complainant who disrupted the meeting and used the “HNIC” acronym. There is no
evidence supporting Complainant’s claim that Lead MDO-1 used any slurs.

After reviewing the record and considering arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and her factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. Accordingly, the Commission finds that Complainant has not established that
she was subjected to discrimination, reprisal, or a hostile work environment as to all claims
alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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

January 11, 2017
Date