Larae S.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 9, 2017

0120143209 (E.E.O.C. Mar. 9, 2017)

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

Larae S.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120143209

Agency No. BOP-2012-01176

DECISION

On September 18, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 29, 2014, final decision 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision finding no
discrimination.

BACKGROUND

The record reveals Complainant has worked for the Bureau of Prisons since January 2009. At
the time of events giving rise to this complaint, Complainant worked as a Senior Officer at the
United States Penitentiary in Florence-Colorado (USP-Florence).

On October 15, 2012, Complainant filed an EEO complaint alleging that she was subjected to a
hostile work environment during her shift in the Special Housing Unit (SHU) on September 4,
2012, when a male inmate whom she had previously written up for masturbating in front of her
“continually pulled his penis out and directed at me throughout the entire eight-hour shift.”
Complainant said such harassment was ongoing and management officials did not adequately
attempt to stop the inmate behavior.

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 her affidavit, Complainant stated that on September 4, 2012, she was working an eight-hour
shift in the SHU. Complainant stated she was harassed by an inmate who had been placed in a
SHU holding cell about a week earlier after she wrote him up for masturbating in front of her.
Complainant stated that during the eight-hour shift on September 4, 2012, the inmate
continually pulled his penis out and directed it at her throughout the shift. Complainant
claimed she notified the SHU Lieutenant (Person A) about the inmate’s behavior early in the
shift and asked Person A to move the inmate down range where there were several open cells.
Complainant stated Person A did not respond. Complainant said she wrote an incident report
regarding the inmate’s continued masturbation and claimed she obtained a memo from another
staff member who had seen the inmate’s behavior. Complainant said the inmate was allowed
to stay in the holding cell for a week after the incident and later exhibited the same behavior
towards other females who she claims told her about their incidents with the inmate later that
week.

Complainant alleged that the Warden was responsible for the harassment because he did not set
up appropriate safeguards for female staff. Complainant stated she had spoken to nearly every
lieutenant at USP-Florence regarding her concerns about inmates masturbating in front of
female staff. Complainant said the union had spoken to the administration about the problem
and nothing was done to stop the inmate behavior “until very recently.” She said that her
complaints go back several years and management started taking steps to address the
harassment only “within the last six weeks.” Complainant claimed the Agency’s steps to
address the inmate behavior were not adequate.

Complainant stated she has written more than a hundred incident reports on the offending
behavior. She noted that two weeks ago she wrote 10 incident reports in a six-hour timeframe
regarding this behavior. Complainant stated that on three occasions she was assaulted by
inmates who prior to the assault had masturbated towards her and nothing was done to stop
them. Complainant stated that those inmates assaulted her when one threw urine on her, one
threw water on her, and one spit in her face. Complainant stated she has received obscene
letters from inmates and disgusting pictures. She stated she had copies and could provide them
to the investigator.

Complainant’s Union Representative, who was a Senior Officer, said that the union had
brought the concern of females being sexually harassed by inmates to management’s attention
“over the last couple of years” and they have not taken proper precautions. The Union
Representative stated that management did not take any action until the last four to six weeks.

The investigator afforded Complainant the opportunity to mail any documents she wished to
include as part of the investigative record and also notified Complainant she may send a
witness request. Complainant did not provide the documents she mentioned in her affidavit
and also did not identify any witnesses for the investigator to interview. Complainant was
presented with interrogatories which contained additional questions for her to answer regarding
her complaint. The investigator noted that although Complainant’s Union Representative
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acknowledged receipt of the interrogatories and advised Complainant would complete the
interrogatories, she did not complete them.

The Warden stated he did not learn about the September 4, 2012 incident until Complainant
filed her EEO complaint. The Warden explained that staff members were responsible for
writing incident reports when such behavior occurs, management staff then processed those
reports, and sanctions were taken against inmates.

The Warden did not recall a specific conversation with the local Union regarding Complainant.
The Warden noted that incident reports have been written and processed by other employees.
While the Warden could not address incidents specific to Complainant’s complaint, he stated
that USP-Florence has taken aggressive measures to protect all staff. He noted management
started taking such measures in 2010, and the measures continue to evolve.

The Warden explained that inmates identified as having a propensity to act in a “sexually
aggressive or sexually inappropriate manner” are housed on designated ranges within the SHU
and the Special Management Unit (SMU). He said these are inmates who have at least one
sustained disciplinary action in the previous 24 months for a violation of Disciplinary Code 205
(Engaging in Sexual Acts), Code 206 (Making Sexual Proposals or Threats to Another), or
Code 300 (Indecent Exposure). Inmates with three or more non-adjudicated incident reports
for violating Codes 205, 206, and 300 within the past 24 months have also demonstrated a
propensity to act in a sexually aggressive or sexually inappropriate manner and were housed on
those designated ranges. The Warden stated that previously such inmates were housed
throughout the institution. The Warden noted that cells on those designated ranges have a
security box covering the food slot and a magnetic placard covering the door window. He said
the window placard covering remains over the window at all times unless the staff member
conducting rounds needs to remove it to look into the cell to verify the welfare of the inmate.
He added that all magnetic placards were being replaced with a metal-hinged door with a latch.

The Warden stated that USP-Florence purchased several three-section portable medical screens
for each SHU so that staff members may roll the screen with them while making rounds. He
said the screens were used to mitigate and substantially reduce visibility of the inmates. He
said staff members may use these screens to place between themselves and the cell to provide a
visual barrier if an inmate is engaged in sexually aggressive or sexually inappropriate behavior.
The Warden said that while staff members still have to make initial contact with the inmate as
required by policy, they may position the medical screen to allow them to control the viewing
angle of the inmate as well as prevent the inmate from having full view of staff members. The
Warden stated the screens also serve as a physical barrier to block any substance an inmate
may try to throw at staff members through a cell door crevice. The Warden said 12 additional
medical screens were purchased in July and August 2012.

The Warden explained that the USP-Florence transitioned in 2012 from an institution housing
primarily high security inmates to one housing inmates requiring special management. He
noted that the conditions of confinement for SMU inmates were more restrictive and those
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inmates present unique security and management concerns. The Warden stated that while there
were fewer than 200 SMU inmates in 2010, all of the remaining general population beds were
converted to SMU beds in August 2012. The Warden reported that “[t]his is significant in that
inmate misconduct increased substantially, especially sexually aggressive behavior.” He also
said that many of the offending inmates “rebuke our attempts to mitigate their behavior and
develop their own strategies to defeat our newly implemented procedures.”

Further, the Warden stated that shower stalls in designated SMU ranges had metal plates
affixed to the exterior of the shower door grill, beginning four feet above the shower floor and
extending down to one foot above the shower floor. He explained the purpose of these plates
was to obscure visibility of inmate genitalia and to create an environment that allows staff to
avoid observing sexually inappropriate behavior. The Warden noted that video cameras were
located in the SHU and the SMU, and staff members conducting rounds may ask an escorting
officer to accompany them on rounds with the camera to document any sexually aggressive or
sexually inappropriate behavior by inmates. Finally, the Warden stated that USP-Florence was
working with the local U.S. Attorney’s Office to prosecute inmates who engage in sexually
aggressive or sexually inappropriate behavior.

In his affidavit, the Associate Warden said he arrived at USP-Florence in October 2012. He
said he was not aware of the September 4, 2012 incident. The Associate Warden stated he was
aware that the issue of sexually aggressive behavior by inmates towards female staff was raised
by the union prior to his arrival. He stated that after he came to the USP-Florence,
management implemented numerous procedures to prevent sexually aggressive inmates from
exposing themselves. He said offending inmates were placed on designated ranges in cells
with magnetic covers over their windows and white security boxes over the food slots. The
Associate Warden also mentioned the portable medical screens and the video cameras that were
designed to aid in prosecuting offending inmates. He said that some of these procedures were
already being implemented prior to his arrival to USP-Florence.

The Deputy Captain arrived in USP Florence in March 2012. He said he had no knowledge of
the September 4, 2012 incident. The Deputy Captain said that prior to September 2012, when
there were overcrowding issues, which they no longer have, or when an inmate was placed on
suicide watch or a behavioral management plan by psychology, the inmate would tend to be
located in a special cell in the front of SHU which has glass all around it. The Deputy Captain
said, “[s]ince then we have changed what we are doing with these type of sexually aggressive
inmates.”

The Deputy Captain noted that USP-Florence has taken a number of steps to try to minimize
staff exposure to sexually aggressive inmates. He said that, initially, all of those inmates were
moved to the backs of the ranges and now they are all housed in a specific location. The
Deputy Captain said that management next purchased magnetic window coverings that act
almost like a curtain and have to be opened by staff, as well as portable medical screens. He
also noted the use of food slot protective boxes, the use of video cameras, and the metal plates
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to block staff view of the showers. In addition, he said the Legal Department is actively
pursuing prosecutions of offending inmates.

The Deputy Captain said USP-Florence began moving all of the offending inmates to a specific
location in October 2012, and began installing the magnetic window coverings at the same
time. He stated that when they discovered that inmates were able to reach out of the food slot
and make contact with the magnets and sometimes rip them away, they then decided to put the
boxes on the doors to protect the magnets on the doors. He said the portable medical screens
were purchased in approximately August 2012, and the food slot boxes were also ordered in
August 2012, and arrived in late 2012. The Deputy Captain noted that Facilities has now
started taking the magnets off the doors and “putting sheet metal or metal almost like a louver
door on the window” to prevent the inmates from removing it. The Deputy Captain said he
was aware Complainant had written incident reports in the past, but said she had never spoken
to him about her past concerns.

Person A stated she started working at the USP-Florence in August 2011. She acknowledged
she was the SHU Day Watch Lieutenant on September 4, 2012, but stated she did not recall
Complainant reporting sexually inappropriate inmate behavior to her that day. Person A also
said that no one from the union has ever contacted her about the concerns of female staff
regarding inmate behavior. Person A noted she had to write a memorandum to Complainant in
October 2012, after Complainant used the old incident report form instead of the revised one.
Person A stated she did not receive an incident report from Complainant or any employee in
the SHU regarding an inmate exposing himself or masturbating through a large glass window
on September 4, 2012. Person A claimed she checked the log book and the only disciplinary
report in that time frame was on September 9, 2012, which she stated she processed. Person
A added that management was taking steps to address the concerns of female staff regarding
sexually aggressive inmates, such as isolating offending inmates, purchasing portable medical
screens, placing magnets over inmate windows, and placing security boxes over food slots.

The EEO investigator presented Person A with two incident reports written by Complainant on
September 4, 2012. Both incident reports charge Code 205 for exposing and masturbating
behavior. Both reports indicated they were delivered to the respective inmates (Inmate 1 and
Inmate 2) by Person A on September 5, 2012. In response Person A stated that “at no time
did [Complainant] verbally report to myself about any particular inmate that I can recall” on
September 4, 2012.

The record contains copies of two incident reports written by Complainant on September 4,
2012, stating that two inmates, on two separate occasions, masturbated in her presence. Both
reports were referred for disciplinary hearings and the charges of “Engaging in a sexual act,
Code 205” were sustained against both inmates. The two inmates received disciplinary
sanctions, including 30 days of segregation and the loss of commissary, visiting, phone, and
email privileges for 180 days.

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The record contains an October 11, 2012 memorandum Complainant sent to the Deputy
Captain informing him that she has “continually been sexually harassed and threatened” by
Inmate 3. Complainant stated Inmate 3 masturbated in front of her, made sexual requests, and
wrote her threatening and harassing mail. Complainant noted on the morning of October 11,
2012, Inmate 3 posted a picture of a man having anal sex with a woman on his cell window
with hand writing on it that said “[Complainant] likes it in the ass.” Complainant said she had
written numerous reports regarding incidents involving Inmate 3.

Roll call meeting minutes dated October 31, 2012, to November 9, 2012, indicated the topic of
how to deal with sexually aggressive inmates was discussed regularly during this period. On
November 7, 2012, the Warden stated that his number one priority was staff safety and that
management was addressing the problem of sexually aggressive inmates by “attaching white
boxes and magnet window coverings.” On November 9, 2012, the Warden said that
management met that week regarding the 205 and 206 sexually aggressive inmates and that
they expected the first prosecutions of those inmates to occur in December.

The record also contains a list of employees, including Complainant, who wrote incident
reports for inmate violations of Code 205 between October 1, 2011 and October 1, 2012. The
list indicated a total of 59 incident reports were written during that time frame. Complainant
wrote 17 incident reports during that time, with 13 occurring on or after May 22, 2012. The
list specifies the sanctions that were taken against the offending inmates based on the staff
incident reports. Available sanctions included disallowance of good time, disciplinary
segregation, loss of commissary, email, property or phone, loss of visitors, and monetary fine.
In all but four instances, sanctions/discipline were imposed. The four instances where no
sanctions were issued involved one instance where a cellmate was found to have been
responsible; one instance where there was a duplicate report and the inmate was found guilty in
the duplicate report; one instance where the case was pending before the Discipline Hearing
Officer (DHO) and the inmate left for placement; and one incident report written by
Complainant which was expunged per institution request as the case was being forwarded to
the Office of Internal Affairs.

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). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged. Complainant filed the instant appeal but did not file any brief in support of her appeal.

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
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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”).

It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex
discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In
order to establish a prima facie case of sexual harassment, the complainant must prove, by a
preponderance of the evidence, the existence of five elements: (1) that she is a member of a
statutorily protected class; (2) that she was subjected to unwelcome conduct related to her sex;
(3) that the harassment complained of was based on her sex; (4) that the harassment had the
purpose or effect of unreasonably interfering with her work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing
liability to the employer. See Complainant v. Social Security Administration, EEOC Appeal
No. 01963810 (August 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th
Cir. 1982).

In the present case, Complainant, a female, is a member of a statutorily protected class. The
Agency concedes that the inmates’ sexually inappropriate conduct was based on Complainant’s
sex. Further, the record reveals that Complainant immediately reported the harassing incidents
to management through incident reports. Thus, the record reflects the inmates’ conduct was
unwelcome.

Turning to the fourth prong of the prima facie case, we note that whether or not an objectively
hostile or abusive work environment exists is based on whether a reasonable person in
Complainant's circumstances would have found the alleged behavior to be hostile or abusive.
The incidents must have been “sufficiently severe and pervasive to alter the conditions of
complainant's employment and create an abusive working environment.” Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 23
U.S. 75 (1998). To ascertain this, we look at the totality of the circumstances, including the
frequency of the discriminatory conduct; its severity; whether it was physically threatening or
humiliating, or a mere offensive utterance; whether it was hostile or patently offensive;
whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23
(1993); see also Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No.
N-915-050(Mar.-19, 1990).

The record contains sufficient evidence to conclude that Complainant was exposed to numerous
incidents of sexually aggressive behavior by inmates. In addition to the September 4, 2012
incident, in which Complainant alleged that an inmate masturbated in her presence during her
shift, the record reveals that Complainant filed 17 incident reports based on similarly sexually
inappropriate behavior by inmates between October 1, 2011 and October 1, 2012.
Complainant also stated she had received obscene letters and pornographic pictures from
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inmates, had been proposition sexually on occasion, and had been the victim of “assaults” in
the form of inmates throwing urine on her, throwing water on her, and spitting at her.

We find Complainant credibly reported that she was repeatedly subjected to numerous
instances of sexually aggressive behavior by inmates. The record contains the Discipline
Hearing Officer (DHO) Report for the two instances of alleged sexually aggressive behavior
occurring on September 4, 2012. The DHO found the two instances occurred as charged and
imposed discipline to the inmates involved. In addition, the record reveals that of the
remaining 15 allegations of inmate Code 205 violations reported by Complainant, in all but one
situation, where the charge was expunged because the case was referred to OIA,
discipline/sanctions were issued.

Upon review, we find the record indicates that beginning in May 2012, Complainant was
subjected to repeated instances of sexual exposure and aggression. Furthermore, we find that a
reasonable person in Complainant’s circumstances would find that she was subjected to
conduct that was sufficiently severe or pervasive to alter the conditions of her employment.
Thus, we find that Complainant was subjected to sexual harassment.

Because Complainant established that she was subjected to sexual harassment, the next inquiry
is whether the Agency is liable for the inmates’ actions. EEO Regulations provide that
employers may be held liable for the acts of non-employees where the employer “knows or
should have known of the conduct and fails to take immediate and appropriate corrective
action.” 29 C.F.R. § 1614.11(e); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, No. 915.002 (June 18, 1999). That is, an agency can raise an
affirmative defense when it shows that it took immediate and appropriate corrective action. Id.
What is appropriate remedial actions will necessarily depend on the particular facts of the case,
such as the severity and persistence of the harassment and the effectiveness of any initial
remedial steps. See Complainant v. Department of the Air Force, EEOC Request No.
05920194 (July 9, 1992).

In this case, Complainant claimed that she was subjected to sexual harassment for a couple of
years prior to September 2012. However, Complainant failed to provide the names of any
witnesses to support her claims, despite being afforded the opportunity to do so by the EEO
investigator. Other than Complainant’s and her Union Representative’s general statements that
the union met with management numerous times prior to September 2012, the record does not
contain evidence of years of severe or pervasive sexual harassment.

The record reveals that prior to May 22, 2012, Complainant alleged four instances of Code
205 violations on the following dates: October 12, 2011, November 6, 2011, December 15,
2011, and January 26, 2012. The record indicates that, prior to the summer of 2012, USP-
Florence management officials had taken disciplinary action against offending inmates
(including for all four instances raised by Complainant) and had taken some steps to address
the sexually inappropriate behavior (exposure, masturbation, etc.) of SHU inmates towards
staff members, such as the purchase of portable medical screens to shield themselves from
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offending inmates. Given the lack of specific evidence of harassment other than the four
incidents between October 2011 and January 2012, we find the Agency took immediate and
appropriate corrective action and was not liable for harassment prior to May 2012.

The record reveals that the harassment escalated in the summer of 2012. The Warden stated
that USP-Florence was transitioning in the later summer 2012, from a general population
facility to an institution housing SMU inmates who presented difficult and unique security and
management concerns. The Warden explained that after the remaining general population beds
were converted to SMU beds in August 2012, inmate sexually inappropriate behavior increased
significantly. In addition, the Deputy Captain explained that prior to August/September 2012,
overcrowding issues forced management to house offending inmates in glass cells near the
front of the SHU.

As the inmate harassment problem escalated in the late summer of 2012, management officials
took numerous actions to address the growing problem. In July and August 2012, additional
medical screens were purchased to use by staff to shield themselves from inmates when
conducting rounds. Protective boxes for food slots were ordered in August 2012, to prevent
inmates from throwing fluids or objects at staff. Beginning approximately in October 2012,
inmates who acted in a sexually aggressive or inappropriate manner were all housed on
designated ranges in cells with magnetic cell coverings over the windows to allow staff to view
inmates only when necessary. In addition, the Agency installed metal plates in shower stalls to
allow staff to avoid viewing sexually inappropriate inmate behavior in the shower. Moreover,
management placed video cameras in the SHU and the SMU for officers to use to document
sexually inappropriate inmate behavior when escorting female staff members on rounds. The
cameras were used to provide video evidence for prosecuting offending inmates. Finally, the
record reveals that USP-Florence management officials were working with the local U.S.
Attorney’s Office to prosecute inmates who engaged in sexually aggressive and inappropriate
behavior. Additionally, the record reveals that the Agency continued to process incident
reports filed by staff and to issue serious discipline to inmates who engaged in sexually
aggressive or sexually inappropriate behavior.

The Commission has held that an Agency’s duty to protect its employees is not reduced by the
fact that the employees are working in a prison facility. Complainant v. Department of
Justice, EEOC Appeal No. 0120081287 (April 23, 2009), request for reconsideration denied,
0520090501 (August 17, 2009). EEOC Appeal No. 0120081287 cited Freitag v. Ayers, 468
F.3d 535 (9th Cir. 2006), in which the Ninth Circuit observed that prisons have curtailed
indecent exposure by: imposing serious disciplinary measures for sexual misconduct;
restraining sexually aggressive inmates; taking away their yard privileges; working with the
prosecutor’s office to prosecute serious and repeat offenders; and even installing devices so
that officers can observe inmates but inmates cannot see officers. We note the Agency in the
present case availed itself of several of these measures to curtail the sexually aggressive and
sexually inappropriate behavior of inmates. Upon review, we find the Agency is not liable for
the harassment since it took prompt and appropriate corrective action.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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”
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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

March 9, 2017
Date