[Redacted], Emerson P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022000787 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000787 Agency No. 4E-970-0036-21 DECISION On November 27, 2021, 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 October 29, 2021, final decision concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency’s Post Office in Brookings, Oregon. On May 21, 2021, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against him for his prior protected EEO activity when: 1. On January 23, 2021, Complainant was accused of mail theft, removed from work and put on an Emergency Placement (off-duty). 2. On March 3, 2021, Complainant was issued a 14-Day Suspension. 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. 2022000787 2 The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. On January 23, 2021, Postmaster issued a Letter of Emergency Placement to Complainant, notifying him that he had been placed off-duty on an emergency basis, pursuant to Article 16, Section 5 of the National Agreement,2 because there was an allegation that he removed mail from the mail-stream and took it to his home. In the letter, Postmaster informed Complainant that he had been placed “in an off-duty status to prevent further loss of mail or funds.” Complainant was instructed not to enter the postal facility until he was given notification that he could return. Complainant filed a grievance contesting the Agency’s decision to put him on emergency placement for theft. On February 5, 2021, the parties reached a settlement agreement on the matter. The Agency agreed to rescind the Letter of Emergency Placement and pay Complainant administrative leave for the time that he was absent from work. In addition, the parties agreed that the January 23rd incident would be investigated, and management would make a “determination” later. Even though the settlement agreement does not describe why the Agency rescinded the Letter of Emergency Placement, Postmaster revealed that the Letter of Emergency Placement erroneously stated that Complainant was being disciplined for theft, when instead, she had placed him on Emergency Placement for harassment and intimidation for his actions on January 23, 2021. According to Postmaster, the Agency agreed to rescind the letter due to the error. Postmaster explained that on January 23, 2021, the Operations Manager called her while she was at home and instructed her to go to the office and place Complainant on emergency placement because Supervisor was in the building alone with him and felt harassed. Postmaster arrived at the building with a police officer. Postmaster described that when they arrived at the office, she saw Complainant at his carrier case and Supervisor away from him cowering over the P.O. Box section. Postmaster stated that she placed Complainant on emergency placement and the police officer escorted him out of the building. Postmaster stated that when she asked Supervisor what happened, Supervisor replied that Complainant was being aggressive towards her, and she felt she was in danger. Supervisor reported that on January 23, 2021, Complainant came back to the post office from running his route and had 25 packages left for delivery. After observing Complainant’s workload, Supervisor stated that she believed he was splitting the packages into two more parcel runs, so she asked him to leave the packages that were closer into town, so that he was not taking two long trips out of town. Supervisor indicated that she asked Complainant if what she said made sense, and he replied ‘no.’ In response, she stated that she was trying to save time. 2Article 16, Section 5 of the National Agreement provides, in pertinent part, that an employee may be immediately placed in an off duty without pay status where there is an allegation involving pilferage or retaining the employee on duty may result in damage to U.S. Postal Service property, loss of mail or funds. 2022000787 3 According to Supervisor, Complainant’s face got red, and he asked her ‘why do you keep harassing me?’ Supervisor maintains that she replied, ‘I am not harassing you. I am just trying to supervise.’ Supervisor described that when Complainant left to deliver the first batch of the remaining 25 parcels. When he returned, she observed that he had 7 packages left. Supervisor reported that he then asked her if he could take his lunch break. Supervisor stated that she thought Complainant was “kidding” because he never takes a lunch break, so she replied, ‘I guess so.’ According to Supervisor, Complainant then gave her a “creepy look” and stated in a low voice, ‘I’ll get you.’ Supervisor reported that she felt uncomfortable being alone with Complainant and that he was “keeping [her] there by taking his lunch and only having 7 packages left,” so she called Operations Manager. Complainant testified that he and Supervisor used to be coworkers, and they used to get along. Complainant disclosed that it was common knowledge that she applied for a supervisory position, and that Postmaster denied her application twice because Postmaster wanted a supervisor that would hassle Complainant because he filed an EEO claim against Postmaster. Complainant contends that Supervisor was promoted to her position after she agreed to hassle him. Complainant declared, when Supervisor was promoted, she “immediately began riding me hard, much harder than any other carrier.” Regarding the January 23rd incident, Complainant stated that Supervisor approached him and gave him unusual instructions. Specifically, she instructed him to make two additional trips instead of one. Complainant believed that two trips increased the amount of time that he spent on his route and preferred to do one trip. He described that when Supervisor asked him if he understood her order, he replied that he did not understand but would obey her order any way. Complainant testified that when he was done loading his truck, he saw Supervisor and stated, “please stop harassing me.” Complainant described that Supervisor got angry and told him that she was his supervisor and can give him any order she wants, and he must do it. Complainant stated that he got in his vehicle and left to make the first instructed delivery. He described that when he returned, he was exhausted and asked Supervisor for permission to take his lunch break. Complainant stated that he went to the breakroom to eat his lunch, returned to his work area after lunch, and prepared the parcels for his subsequent trip as previously instructed by Supervisor. Complainant stated that while he was preparing the parcels, Supervisor told him to wait at his desk because Postmaster was coming to talk to him. Complainant described that Postmaster entered the work area with a police officer and her boyfriend. Complainant maintained that Postmaster’s boyfriend should not have been on the floor because he does not work for the Agency. Complainant testified that the police officer told him to leave the building. Complainant stated that he asked if he could return and Postmaster, replied no, he would get a letter in the mail. Complainant stated that was when he realized Postmaster was retaliating against him for filing an EEO claim against her. 2022000787 4 Complainant submitted an email from his coworker to support his claim. In the email, Coworker stated that Supervisor was a bully who created a hostile work environment. Coworker explained that Supervisor followed her and Complainant anytime they were out of her line of sight. Coworker stated that Supervisor would even follow Complainant to the restroom and wait for him to come out to make sure that is where he went. Coworker noticed that Supervisor allowed other employees to talk to each other, but when she spoke to Complainant an “alarm seemed to go off” in Supervisor, and Supervisor would approach her and ask her what she needed. Coworker revealed that she was resigning. She said, “when anyone speaks up, they get retaliated against,” even if management’s actions are not “what the Union’s definition of retaliation is, it is obvious and wrong.” In February 2021, an investigator conducted a Workplace Harassment Fact Finding (WHFF) investigation to look into the allegation that Complainant engaged in workplace harassment during the aforementioned incident on January 23rd, and in an additional incident on January 2nd. The investigator interviewed 11 employees, 2 supervisors, and 2 customers. Regarding the January 2nd incident, Supervisor reported that on January 2, 2021, Complainant took a picture of her while she was outside on her break. Supervisor reported the incident to Postmaster, and Postmaster instructed her to give an investigative interview to Complainant. Complainant denied that he had taken a picture of Supervisor. Complainant stated that on January 2, 2021, Supervisor had been watching him all day long, trying to harass him. He explained that when Supervisor returned from her lunch break, she asked him if he had gone anywhere while she was gone, and then went back to Postmaster’s office to review video tapes to make sure he had not gone anywhere while she was at lunch. Complainant stated that while he was loading his vehicle, Supervisor was hiding under the cameras watching him. Complainant stated that he saw Supervisor smoke a cigarette next to the door which was against the rules. Complainant stated that because he planned on filing a grievance, he held his phone up so that when Postmaster reviewed the video tapes, she could zoom in at that point and see the smoke coming out from the area where Supervisor was standing. Postmaster confirmed that she received a grievance after the incident. The grievance alleged that Supervisor violated the Oregon Clean Air Act. When the investigator interviewed Complainant, he noticed that Complainant experienced red face flushing from probing. The investigator recalled that both Postmaster and Supervisor informed him that Complainant’s face gets red from anger, but the investigator found that Complainant was not angry when his face got red in front of him. The investigator believed that the flushing could have been misconstrued as anger. The investigator also stated that Complainant’s actions at work were directly related to being singled out by “obvious disparaging treatment over a period of extended time.” The investigator found that Postmaster perpetuated the hostile work environment. He explained that Complainant had been disciplined for various incidents. Specifically, Complainant received a Letter of Warning on his 4240, a 7-Day Suspension for being absent without leave, and a Letter of Warning for Express Failure. The investigator stated that all of the disciplines except one were subsequently rescinded after there was proof that it “was the management staff that was wrong” not Complainant. 2022000787 5 In a memorandum dated February 11, 2021, Operations Manager stated that he reviewed the investigator’s WHFF report. Operations Manager stated that after reviewing the report, he determined that an additional investigation was needed. After declaring that an additional investigation was necessary, Operations Manager contradicted his own determination and announced that he was going to suspend Complainant for 14 days for workplace harassment. On March 3, 2021, Operations Manager issued a Notice of Suspension to Complainant, notifying Complainant that he was suspended for 14 days. In the Notice, Operations Manager stated Complainant was being disciplined for unsatisfactory conduct on January 2, 2021, and January 23, 2021. Complainant was informed that he had violated several policies in the Employee and Labor Relations Manual (ELM), including, ELM 665.15, which states that employees must obey the instructions of their supervisors; and ELM 665.24, which states that the Agency will not tolerate threats of violence, harassment, or bullying by anyone at any level. Complainant filed a grievance contesting the Notice of Suspension. During the grievance proceeding, Postmaster admitted that Complainant did not violate ELM 665.15 because he obeyed his supervisor’s instructions. However, Postmaster maintained that Complainant violated ELM 665.24 by behaving in a “bullying fashion with the intent to intimidate.” Complainant testified that just like the Emergency Placement, the Notice of Suspension failed to articulate the forceful actions that he allegedly committed to warrant discipline. On April 26, 2021, the parties reached a settlement agreement on the matter, where the Agency agreed to reduce the Notice of Suspension to a Letter of Warning and remove it from Complainant’s file within 90 days. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to establish a prima facie case of retaliation. Specifically, the Agency concluded that Complainant failed to establish a nexus between the instant matter and his prior EEO activity. The Agency indicated that there was a 17-month interval between Complainant’s 2019 complaint and the two incidents which was too long to support an inference of causation. The instant appeal followed. On appeal, Complainant, through his attorney argues that the Agency misrepresented the status of his 2019 complaint as closed, when it was active during both incidents. Complainant argues that Postmaster’s close involvement with his 2019 complaint was sufficient to raise an inference of reprisal. 2022000787 6 ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. at 248, 253. Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency’s action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. A complainant may establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shaprio v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, a complainant may establish a prima facie claim of reprisal by showing that: (1) he engaged in protected activity under the employment discrimination statutes, (2) the Agency was aware of the protected activity, (3) he was subject to adverse treatment by the Agency, and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000); Complainant v. General Services Administration, EEOC Appeal No. 0120131204 (August 1, 2014). We find, contrary to the Agency’s decision, that Complainant established a prima facie case of reprisal. In reaching this conclusion, we note that Complainant filed an EEO complaint in 2019, and Postmaster was aware of the protected activity because she was named as the responsible management official in the complaint. Further, we note that Complainant was subjected to adverse treatment by Postmaster because she issued the Emergency Placement and was involved in the grievance for the Notice of Suspension. Although the Agency argued that Complainant failed to establish a nexus between his 2019 case, and the Emergency Placement and Notice of Suspension, Complainant’s attorney submitted evidence3 which established that the 2019 complaint that he filed against Postmaster was active when he was disciplined in both instances. 3 Complainant’s attorney submitted a scheduling order, which shows that the 2019 claim was pending before an EEOC Administrative Judge (AJ) as of August 17, 2021. The 2019 claim was referred to the AJ under Agency Case No. 4E-970-0014-19 and Agency Case number 4E-980- 0047-19. See EEOC Hearing No. 550-2019-00643X. 2022000787 7 Once Complainant has established his prima facie case, the Agency must articulate a legitimate and nondiscriminatory reason for its actions. In the Letter of Emergency Placement, Postmaster articulated that Complainant had been placed in emergency placement because there was an allegation that he removed mail from the mail-stream and took it to his home. And in the Notice of Proposed Suspension, Operations Manager stated Complainant engaged in unsatisfactory conduct in violation of ELM 665.15, which states that employees must obey the instructions of their supervisors, and ELM 665.24 which states that the Agency will not tolerate threats of violence, harassment, or bullying by anyone at any level. The burden now shifts to Complainant to demonstrate that the Agency’s proffered reasons for the disputed actions were a pretext designed to mask its true retaliatory motivation. Significantly, Postmaster later admitted that the theft charge was baseless and then said the placement was because Complainant harassed Supervisor. Postmaster also admitted that the Notice of Proposed Suspension erroneously stated that Complainant violated ELM 665.15 by failing to follow the orders of Supervisor, when he had, in fact, complied. Complainant reported that after he filed his EEO claim against Postmaster, Postmaster promoted Supervisor to her position because Supervisor agreed to hassle him. Complainant declared, when Supervisor was promoted, she “immediately began riding me hard, much harder than any other carrier.” Complainant’s claim was supported by his coworker who stated that it was obvious that Complainant was singled out by Supervisor and treated different. His claim was also supported by the investigator, who was a neutral third party. After interviewing 11 employees, 2 supervisors, and 2 customers the investigator found that Postmaster perpetuated a hostile work environment, where Complainant was singled out by “obvious disparaging treatment over a period of extended time.” The investigator explained that Complainant had been disciplined for various incidents under Postmaster’s watch. The investigator stated that all of the disciplines except one were subsequently rescinded after there was proof that it “was the management staff that was wrong” not Complainant. Notably, the discipline that management issued in this case was either rescinded or set up to be wiped from Complainant’s record after management admitted that that they had made errors. Consequently, we find the Agency’s proffered explanation for issuing the Emergency Placement and Notice of Proposed Suspension unworthy of credence. Therefore, the initial inference of an unlawful retaliatory motivation established in Complainant’s prima facie case remains unsuccessfully rebutted by the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and conclude Complainant has established unlawful retaliatory animus in violation of Title VII played a role in the matters at issue. We direct the Agency to comply our Order below. 2022000787 8 ORDER Unless otherwise noted, within sixty (60) calendar days of the date this decision is issued, the Agency shall take the following actions: 1. Rescind and remove any record of the Emergency Placement, as well as the Notice of Proposed Suspension and its related Letter of Warning, from Agency records, including Complainant’s official personnel records. 2. Conduct supplemental investigations on entitlement to compensatory damages and provide Complainant an opportunity to submit evidence of pecuniary and nonpecuniary damages. For guidance on what evidence is necessary to prove entitlement to pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991, EEOC No. 915-002 (July 14, 1992) (available at eeoc.gov) and Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (January 5, 1993). The Agency shall complete the investigation and issue a final decision, appealable to this Commission, determining the appropriate amount of damages within 120 calendar days of the date of this decision. Complainant(s) shall cooperate with the Agency’s investigation. If there is a dispute regarding the exact amount of compensatory damages, the Agency shall issue a check to Complainant(s) for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due. 3. The Agency shall provide eight (8) hours of interactive EEO training with an emphasis on the anti-retaliation provisions of the employment discrimination statutes to the responsible management officials, identified as Supervisor, Postmaster and Operations Manager. 4. The Agency shall consider taking disciplinary action against the Agency officials found to have retaliated against Complainant (Supervisor, Postmaster and Operations Manager). The Agency shall report its decision. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at its Post Office in Brookings, Oregon, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. 2022000787 9 The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022000787 10 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000787 11 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 February 14, 2023 Date