Enriqueta T.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (Bureau of Indian Affairs), Agency.

Equal Employment Opportunity Commission

Sep 5, 2019

0120181421 (E.E.O.C. Sep. 5, 2019)

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

Enriqueta T.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(Bureau of Indian Affairs),
Agency.

Appeal No. 0120181421

Hearing No. 443-2018-00040X

Agency No. DOI-BIE-17-0200

DECISION

On March 26, 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
February 27, 2018 final decision concerning her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an English Teacher
(Annual Contract Employee), CY-1710-14/07, at the Agency’s Pine Ridge High School in Pine
Ridge, South Dakota.

On March 6, 2017 (and later amended), Complainant filed an EEO complaint alleging that the
Agency discriminated against her and subjected her to a hostile work environment on the basis of
disability (post-traumatic stress disorder (PTSD)) when:

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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1. On November 30, 2016, following a parent/teacher/student meeting attended by a
school counselor (SC1) that became explosive toward the end, Complainant learned
from her therapist that SC1 and another school counselor (SC2) had visited the Pine
Ridge Indian Health Service to inquire about Complainant’s disability;

2. On January 10, 2017, Complainant was notified of a change in her teaching
assignment effective January 17, 2017;

3. On January 23, 2017, Complainant was issued a Letter of Reprimand for failure to
follow an instruction;

4. On May 3, 2017, Complainant was instructed to “move ethically” following a
contentious incident between her and a student’s parent on April 21, 2017, which
the Assistant Principal (AP) witnessed but failed to intervene in; and

5. On May 9, 2017, Complainant was informed that she was being required to teach
Grades 11 and 12 (Fall 2017), despite her accommodation that required her to teach
only one grade level.

Claim (1) – Complainant claimed that she became aware that SC1 and SC2 inquired about her
disability the same day, when her counselor left a voicemail explaining what happened. According
to her counselor, SC1 and SC2 thought Complainant was out of control, having outbursts, and that
they had received complaints from staff and students about her. In particular, they believed
Complainant might hurt someone. However, Complainant’s counselor refused to discuss
Complainant’s condition, citing medical privacy under the Health Insurance Portability and
Protection Accountability Act (HIPAA). Complainant claimed that she alerted AP, who said she
would discuss the matter with SC1 and SC2. Complainant did not know if anything further
happened as a result. Complainant noted that SC2 is her father’s third wife.

AP says she was unaware that SC1 and SC2 went to Complainant’s counselor until informed by
Complainant. AP consulted with the Office of Human Resources, which advised her to informally
consult SC1 and SC2 that their actions were inappropriate.

SC1 said that he, and SC2, who was Complainant’s stepmother, expressed concern as to whether
they should be afraid of Complainant’s “increasingly hostile and erratic behavior.” SC1 added,
“[r]ecently, she had blown up yelling and cussing at multiple students, multiple staff members,
and multiple parents, as well as her administrators.” Nonetheless, the counselor refused to tell
SC1 and SC2 anything.

SC2 corroborated SC1’s concerns. SC2 added that the school has a memorandum of agreement
with the Pine Ridge Indian Health Service Center (IHC) that allowed their counselors to
collaborate with the school’s counselors regarding students’ mental health issues and issues that
may involve school staff.
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SC2 said she visited the IHC for a number of student issues, and Complainant’s issues came up.
However, the counselor refused to disclose anything about Complainant, and that was the end of
the conversation.

Claim (2) – Complainant claimed that changes to work assignments were usually given with 21
days’ advance notice. Complainant conceded that AP told her that she had to take immediate
action in order to ensure coverage and accountability. However, Complainant believed AP’s
actions were unfair and that she may have been influenced by SC1 and SC2.

AP explained that a new teacher came on board at the start of the spring semester, which allowed
her to move Complainant to 11th grade English. AP then reassigned the new teacher to 12th grade
English. AP noted that she has made numerous work assignment changes in the past. The record
includes several instances in which the Agency notified the teacher’s union of teacher
reassignments made less than 21 days before they were to take effect. SC1 added that Complainant
was given very small classes. The school spread the 11th grade English students across six classes,
when that number would have normally filled only three to four classes.

Claim (3) – The Letter of Reprimand is in the record. According to the Letter, AP directed all
teachers to have all grades uploaded into the school’s system by January 17, 2017. Complainant
did not upload her grades by the deadline and, therefore, failed to follow instructions. Complainant
insisted that she uploaded her grades on time, but that the system was glitchy. When Complainant
posted her grades, the system did not give her the option to post “semester” grades, but rather
posted them as “2nd Quarter” grades. Complainant alleged that when all teachers were given an
extension to have grades posted, Complainant re-posted her grades and showed her grades to a co-
worker (CW1) for verification. Complainant believed she should not have received the Letter
because other teachers were having problems with the system, yet she was the only teacher who
received a letter of reprimand. Complainant disagrees that she failed to follow instructions.

AP says that she sent reminders to all teachers on December 14, 2016, and on January 13, 2017.
Complainant simply did not follow the schedule and her grades were not timely posted which had
a negative effect on students registering for spring classes and scheduling parent/teacher
conferences. AP did not discipline any other teacher because all other teachers posted their grades
on time.

Claim (4) – Complainant claimed that meetings with parents and students normally occurred in
AP’s office, but on this day, the meeting took place in Complainant’s classroom. The parent and
student came into her classroom, and accused her of being a bad teacher. Complainant alleged
that AP allowed the parent to embark on a tirade against her and question whether she was
Traditional, “which means being true, humble, and dedicated to the Lakota ways.” The student
then told her father that Complainant had PTSD and “that she was speaking up for all of the
students regarding my continuous sharing of my personal information.” Complainant alleged that
AP did nothing to stop the parent’s attacks. Following the meeting, the parent called the police
and asked them to arrest Complainant. All parties involved submitted statements to the police,
and those statements are part of the record.
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AP and the school’s Traditional and Cultural Leader (TCL) witnessed the meeting as well. AP
said that the parent started to raise his voice, and Complainant did not try to tone down the
conversation. Rather, Complainant raised her voice in response and became very defensive. AP
added that Complainant made a comment along the lines of “this conversation would be different
if her father and her uncles were there.” Accordingly, the conversation escalated quickly, and the
TCL tried to deescalate and stop the conversation. However, Complainant kept on making
comments.

The TCL said that he walked into a full-blown argument and that Complainant “was making some
very inappropriate personal remarks about the student as well as the parent” and “was pointing her
finger at the father and making inappropriate comments that bordered on threatening the parent.”
The TCL thought that Complainant was getting “way too personal.”

After the meeting, and on advice from Human Resources, on May 4, 2017, AP sent Complainant
an email and said, “I am putting you on Notice because of my concerns from the incident. You
must use sound professional judgment and maintain a professional demeanor toward others.”
Complainant argued that AP’s email meant that AP believed Complainant was at fault and needed
“to change her behavior concerning ethic rules.”

Claim (5) – The record shows that Complainant provided her supervisor, AP, with a letter from
her psychologist dated January 13, 2017. In the letter, Complainant’s psychologist recommended,
as accommodation for her PTSD, that Complainant teach smaller classes at one grade level, have
more preparation time, the use of a job coach, regular written or verbal feedback from the job
coach or an experienced teacher, a quiet, private space to rest during her breaks, and reduced
distractions and noise in the work area.

Complainant noted that the union agreement dictated that class sizes should be capped at 25
students per class. When class schedules were printed for the Spring 2017 semester, Complainant
learned she was assigned to teach 9th and 11th Grade English. When Complainant provided her
request for reasonable accommodation to AP, she was reassigned to teach only 11th Grade English.
However, for the Fall 2017 semester, Complainant was reassigned to teach both 11th and 12th
Grade English classes. Complainant alleged this constitutes a denial of her reasonable
accommodation request.

AP stated that Complainant advocated for teaching both 11th and 12th Grade classes. AP also
explained that the school only had two teachers for the Fall 2017 semester and was unable to hire
additional teachers. Even though he was the school counselor, SC1 was scheduled to teach 9th
grade English because the school only had two English teachers on staff. SC1 said that to limit
Complainant to only one grade level in this situation would have constituted a hardship on the
school.

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The Principal of the school said that the school was able to accommodate Complainant’s requested
accommodation of teaching only one grade level in Spring 2017 but was unable to do so for the
Fall 2017 semester. The Principal added that the combined number of students in 11th and 12th
Grade English classes constituted the least number of students.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

In the decision, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and found that management had articulated legitimate and non-
discriminatory which Complainant had not rebutted. Further, the Agency found that management
did not fail to accommodate Complainant.

Additionally, the Agency also found no evidence to support Complainant’s assertion that SC1 and
SC2’s actions constituted an unlawful medical inquiry. More specifically, the Agency found that
SC1’s and SC2’s inquiry to Complainant’s counselor was not authorized by management and,
even assuming it was, management would have had a reasonable belief, based on objective
evidence, that Complainant posed a direct threat due to her medical condition. Lastly, the Agency
concluded that Complainant was not subjected to a hostile work environment because she failed
to show that the conduct alleged to be hostile was severe or pervasive. As a result, the Agency
found that Complainant had not been subjected to discrimination as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant only challenges the Agency’s settlement offer and contends that she
would like to take this matter to court for a hearing. Accordingly, Complainant requests that the
Commission reverse the final decision.

ANALYSIS AND FINDINGS

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”).

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As an initial matter, to the extent that Complainant is requesting a hearing on appeal, the record
reveals that Complainant withdrew her request for a hearing before an EEOC AJ on January 5,
2018. On appeal, Complainant raises arguments regarding the parties’ settlement discussions
while the matter was pending before the AJ; however, Complainant has not alleged nor does the
record indicate that she was pressured, coerced, or otherwise misled into withdrawing her hearing
request. Therefore, we are not persuaded that this matter should be remanded for a hearing. The
Commission advises Complainant that to the extent that she may wish to file a civil action, the
instructions for doing so are provided below in the paragraph entitled “Complainant's Right to File
a Civil Action.”

Disparate Treatment

Turning to the merits of the instant matter, to prevail in a disparate treatment claim, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie
case by demonstrating that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Constr. 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 804 n.14. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tex. 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, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June
28, 1990); Peterson v. Dep't of Health and Human Servs., EEOC Request No. 05900467 (June 8,
1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In this case, the Agency has articulated legitimate, non-discriminatory reasons for its actions. In
Claim (2), AP explained that it changed Complainant’s assignments inside of the 21-day union
window because she was attempting to accommodate Complainant’s restrictions by reducing her
teaching obligations from two grades to one. As to Claim (3), AP explained that Complainant was
the only teacher who failed to post her semester grades by the deadline. Complainant’s failure to
post the grades by the deadline had a negative effect on students registering for second semester
courses and parent/teacher conferences that were scheduled soon after the grades were posted.

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With regard to Claim (4), the account of events offered by AP and the TCL indicate that they
believed Complainant’s behavior during her meeting with a student and her father did not meet
professional standards, and they told Complainant as such. AP stated that she did not intervene
during the meeting because Complainant had the knowledge relevant to the discussion with the
parent and student; therefore, it was very difficult for her to assume the role of responsibility in
managing the situation. On Claim (5), AP said that Complainant offered to teach both 11th and
12th grades and SC1 added that by teaching 11th and 12th grades, Complainant was teaching the
smallest classes possible.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. For Claim (2), Complainant does not offer any
evidence that AP’s explanations are pretext, particularly in light of Complainant’s own request
that she teach only one grade level. In Claim (3), Complainant argues that the grading system was
very confusing and that other teachers had problems posting their grades. However, Complainant
does not demonstrate that other teachers failed to post their grades. Complainant does not dispute
that she behaved as accused in Claim (4), but attempts to shift blame onto the student and her
father. Complainant’s argument does not controvert AP’s instruction to behave professionally.
Finally, Complainant does not dispute AP’s position that she offered to teach 11th and 12th Grades
in Claim (5). Accordingly, we find that Complainant was not subjected to discrimination as
alleged.

Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of
harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by Agency management were
motivated by discriminatory animus on any of her alleged bases. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01982923 (Sept. 21, 2000).

Denial of Reasonable Accommodation – Claims (2) and (5)

The Commission notes that an agency is required to reasonably accommodate the known
limitations of a qualified individual with a disability, unless it can show that doing so would cause
an undue hardship to its operations.

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See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act (“Enforcement
Guidance”), EEOC Notice No. 915.002 (Oct. 17, 2002); Barney G. v. Dep't of Agric., EEOC
Appeal No. 0120120400 (Dec. 3, 2015). For purposes of this decision, we assume that
Complainant is an individual with a disability.

The Commission further notes that under the Rehabilitation Act, an employee is not required to
use the magic words “reasonable accommodation” when making a request. See Enforcement
Guidance on Reasonable Accommodation, Question 1. Instead, the employee or the employee’s
representative need only inform the agency that he or she needs an adjustment or change at work
for a reason related to a medical condition. See Triplett-Graham v. U.S Postal Serv., EEOC Appeal
No. 01A44720 (Feb. 24, 2006), req. for recon. den’d, EEOC Request No. 05A60859 (Sep. 19,
2006); see also Geraldine B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120090181 (Oct.
13, 2015). Moreover, although individuals protected under the Rehabilitation Act are entitled to
reasonable accommodation, they are not necessarily entitled to their accommodation of choice.
See Castaneda v. U.S. Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994).

Here, the record indicates that Complainant submitted a request for reasonable accommodation on
January 13, 2017. Therein, Complainant’s psychologist stated that Complainant needed, among
other things, to teach smaller classes at one grade level. Complainant specifically indicated in her
request to “teach 11th Grade (smaller class size).” The record indicates that initially, Complainant
was scheduled to teach two classes in the 2017 Spring Semester due to an initial shortage of
teachers. Subsequently four teachers became available and, starting on January 17, 2017,
Complainant was moved to teach only 11th Grade English. This arrangement was consistent with
Complainant’s reasonable accommodation request.

However, the Agency again had a teacher shortage for the 2017 Fall Semester based on only having
two English teachers on staff. The record indicates that the Agency attempted to hire additional
English teachers prior to the Fall Semester through job announcements and advertising; however,
management was unable to address its staff shortage. Complainant’s reasonable accommodation
request stated that she needed to teach smaller class sizes at one grade level. The record indicates
that management was unable to assign Complainant to a Ninth Grade class because those classes
were typically larger-sized classes with repeat students. To avoid assigning Complainant to a
larger class, SC1 was assigned to teach Ninth Grade for the Fall Semester. Agency management
considered assigning Complainant to a 10th Grade-level “Speech” class which would have been
one class; however, AP stated that Complainant did not want to become certified to teach that
class. Ultimately, management determined that the best alternative to accommodate Complainant
would be to assign her to both 11th and 12th Grades. This arrangement gave her the small class
size she sought. Furthermore, AP stated that Complainant “advocated” for herself that she would
teach both 11th and 12th Grades.2

2 While Complainant denies requesting to teach both grades, the record indicates that she requested
as a remedy in this case to be assigned to “teach 11th and 12th Grade classes only.”
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The Commission notes again that Complainant is not entitled to the accommodation of her choice
if another accommodation would also be effective. See e.g., Casteneda v. U.S. Postal Serv., EEOC
Appeal No. 01931005 (Feb. 17, 1994) (stating complainants are not necessarily entitled to the
accommodation of their choice, but to a reasonable accommodation). Here, Complainant was
offered a single, 10th Grade Speech class in accordance with her request, but she declined the
offered accommodation. The record only indicates that Complainant did not wish to be certified
to teach Speech as the reason for her objection to this offered accommodation. Further, the
ultimate arrangement resulted in the small class size Complainant sought. Complainant has not
presented arguments or evidence showing that the alternative accommodations offered and granted
by the Agency were not effective in allowing her to perform the essential functions of her position.
Accordingly, we conclude, based on the specific circumstances present, that the Agency did not
deny Complainant reasonable accommodation in violation of the Rehabilitation Act.

Unlawful Medical Inquiry – Claim (1)

Under the Rehabilitation Act, medical examinations and disability-related inquiries of employees
must be job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R.
§ 1630.14(c). An examination or inquiry is job-related and consistent with business necessity
when the employer has a reasonable belief, based on objective evidence, that the employee's ability
to perform essential functions will be impaired by a medical condition or the employee will pose
a direct threat because of a medical condition. EEOC Enforcement Guidance on Disability-
Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities
Act (ADA), EEOC Notice 915.002 (July 27, 2000).

This means that the employer must have a reasonable belief based on objective evidence that an
employee will be unable to perform the essential functions of her job because of a medical
condition. Id. Objective evidence is reliable information, either directly observed or provided by
a credible third party, that an employee may have or has a medical condition that will interfere
with her ability to perform essential job functions or will result in a direct threat. Id. Where the
employer forms such a belief, its disability-related inquiries and medical examinations are job-
related and consistent with business necessity, if they seek only the information necessary to
determine whether the employee can perform the essential functions or work without posing a
direct threat to self or others. Id. It is the burden of the employer to show that its disability-related
inquiries and requests for medical examination are job-related and consistent with business
necessity. See Cerge v. U.S. Dep't of Homeland Sec., EEOC Appeal No. 0120060363 (Oct. 9,
2007).

In this case, we note initially that SC1 and SC2 were not management officials and there is no
evidence demonstrating that they were acting at the behest of management. While SC1 and SC2
stated that AP was aware of their visit to IHC, there is no evidence in the record indicating that
any management official directed SC1 and SC2 to inquire about Complainant’s condition. SC2
stated that their trip to IHC was not specific to Complainant and initially was intended to address
student issues under IHC’s collaboration with the school.
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While there, SC2 and SC1 confirmed that they brought up Complainant with her therapist at the
facility seeking guidance regarding her increasingly hostile and erratic behavior. AP stated that
once she learned that SC1 and SC2 had inquired about Complainant with her therapist without
proper authorization, she counseled them for violating Agency policy. Therefore, based on the
specific circumstances present, the record does not support that management made any improper
medical inquiry.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

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.
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Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 5, 2019
Date