[Redacted], Mohammad M., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 4, 2022

Appeal No. 2021001920 (E.E.O.C. Aug. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mohammad M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001920 Hearing No. 530-2019-00594X Agency No. ARAPG18JUL03019 DECISION Following its January 29, 2021 final order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to 29 C.F.R. § 1614.403(a). On appeal, the Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 0083-06, for the Agency’s Directorate of Emergency Services Police Department in Aberdeen Proving Grounds, Maryland. 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. 2021001920 2 On October 10, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his race (African American)2 and in reprisal for prior protected EEO activity when: 1. From April 2018 to October 11, 2018, Complainant was subjected to a hostile work environment; and, 2. On October 11, 2018, Complainant was constructively discharged. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. A hearing was held on August 27, 28, and 31, 2020. Thereafter, on December 3, 2020, the AJ issued a decision. Specifically, the AJ found that Complainant failed to establish discrimination based on race but established that he was subjected to reprisal when he was issued a proposed removal notice and forced to resign in lieu of removal. In January 2018, Complainant was selected for at Police Officer position at the Agency’s Aberdeen Proving Grounds in Maryland. He was transferring from a position at Ft. Irwin, California. However, Complainant did not start until April 2018 because of some questions raised about his application by Ft. Irwin. Complainant contacted the EEO office at Ft. Irwin to challenge these actions. Upon learning of the issues at Ft. Irwin, including most likely that Complainant was pursuing an EEO complaint, the Aberdeen Police Chief (Caucasian) tried to rescind Complainant’s job offer. However, Aberdeen Human Resources conducted an inquiry into the matter and informed the Police Chief that Complainant’s job offer could not be rescinded. On May 16, 2018, shortly after he started at Aberdeen, Complainant was placed in the field training officer program (FTO), established to familiarize new officers with the policies, duties, and tasks associated with the installation. Citing testimony of current and former police officers, the AJ observed that the FTO program was “loose and relatively unstructured.” A non- supervisory police officer was assigned as Complainant’s FTO Officer (“PO1”) (African American). During their time together, several incidents occurred that would later be cited in a proposal to remove Complainant from his position. Only days after beginning FTO, Complainant and PO1 were engaged in speed enforcement duties with a speed radar. Complainant wrote the probable cause statement for a citation, noting, accurately, that PO1 was operating the radar at the time. However, PO1 subsequently claimed that Complainant erred in stating that Complainant (not PO1) was operating the radar. Such an error, if true, could create a credibility issue and prevent enforcement of the ticket if it were appealed in court. 2 The AJ dismissed sex and age as bases of discrimination during the hearing stage. Complainant has not challenged this on appeal so we will no longer address these claims. 2021001920 3 The AJ noted that, despite PO1’s assertion, the record reflected that Complainant’s correctly recorded that PO1 was operating the radar, yet the incident was included in the proposed removal. A few days later, Complainant and PO1 stopped a driver for failure to wear a seatbelt. The driver became belligerent, and PO1 explained to the individual that Complainant was “doing his job the right way.” Nevertheless, this incident was also referenced in the proposal to remove Complainant. In a third incident, approximately two weeks later, Complainant made a mistake in writing a citation for a driver’s failure to come to a complete stop and needed to rewrite the ticket. He discovered, however, that he used the last citation in his book. Consequently, he was unable to issue a citation and had to simply give the driver a verbal warning instead. The proposed removal also cited an incident wherein the Captain (Caucasian) instructed Complainant and PO1 to stow their rifles. Thereafter, PO1 told Complainant to assist in providing perimeter security, but did not tell Complainant to retrieve his rifle. The absence of his rifle during perimeter security was used as another reason for proposing Complainant’s removal. At this point, Complainant reported his dissatisfaction with PO1, for correcting small mistakes and not being helpful, to his second-level supervisor (“S2”) (Caucasian). S2 reassigned Complainant to a Corporal (“PO2”) (Caucasian) as his FTO Officer. While working with S2, Complainant was accused of failing to use sound judgment and standard procedures for officer safety in apprehending a subject who was “known to have violent tendencies.” The next day, Complainant and SO2 responded to a chemical explosion in a building. According to PO2, Complainant refused his orders to accompany him into the building. Contrastingly, Complainant stated that PO2 had ordered him to remain by the police vehicle with another officer. Both events were included in the proposed removal notice. Additionally, the Police Chief (Caucasian) suspended Complainant from the Individual Reliability Program (IRP).3 The suspension was based on S2’s determination that Complainant had lied when he stated that PO2 had not instructed him to enter the building. Complainant was placed in a small office, separated from his colleagues, his firearm was confiscated, and he was provided with no work. Five weeks later, S2 issued the proposed removal notice with charges entirely based on the observations and recommendations of PO1 and PO2. Complainant resigned in lieu of termination. 3 IRP ensures trustworthy and reliable conduct, and when these traits are called into question the officer is removed from IRP pending an investigation. During that time, the officer is not permitted to carry a weapon and is assigned administrative duties. 2021001920 4 The AJ found that: [T]here is no evidence in the record that Complainant was provided anything written about processes unique to [the facility], nothing he could study or practice. Instead, he was merely told when he performed a task incorrectly, which at a later date was memorialized. The Agency did not show he was provided clear instructions that he then disregarded or otherwise performed incorrectly. . . . The record is replete with evidence that the FTO officers provided minimal assistance or support to Complainant during this period and even intended to hold him to a higher standard, a standard unknown to Complainant and not set out in writing. [Citation to the record omitted.] Instead, [they mostly observed his mistakes and memorialized his errors in memos used to support the proposal to remove him. [Citation to the record omitted.] There are no documents in the record that reflect Complainant was counseled by a supervisor on any of these incidents used to justify his proposed removal. Notably, some of the errors discussed were not supported by the record and appeared to be documented after the fact at some unknown manager's prompting, giving an appearance of manufacturing a record to use to remove the Complainant. The AJ concluded that the Agency failed to produce evidence to support the reasons provided for Complainant’s removal. Examining each of the incidents in detail, the AJ determined: . . . none of these incidents were observed by a supervisor and none were followed up with corrective training at the time they allegedly occurred. The majority of these incidents appeared to be fabricated or spun to make Complainant look deficient. Further, the AJ found that both the Police Chief and S2 were aware of Complainant’s prior EEO activity, noting that S2 told the EEO Counselor that Complainant, “had been pushing for discrimination on day one when there was [sic] problems with his hiring.” Citing a series of text messages between PO1 and PO2, the AJ reasoned that the officers revealed their disdain for engaging in EEO activity and, specifically, Complainant’s intention to meet with an EEO Counselor. A July 16, 2018 text, in particular, the AJ believed, illustrated retaliatory animus in memorializing every alleged error by Complainant, as well as the failure to teach or assist him. Such retaliatory actions, reasoned the AJ, were the proximate cause of the proposed removal. According to the AJ, Complainant was constructively discharged “when the Agency issued him a proposal to remove on actions that constituted unlawful reprisal.” Subsequently, the Agency issued a final order rejecting the AJ’s finding that Complainant was subjected to unlawful retaliation as alleged. The instant appeal followed. 2021001920 5 ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Harassment To prove his claim of hostile work environment harassment, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race or engagement in protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). With regard to claims of retaliatory harassment, the Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). Here, the AJ determined that each of the incidents provided in support of the proposed removal were either trivial, uncorroborated, or contradicted by evidence in the record. Based on our review of the record, we agree. With regard to the first incident, the record shows that the probable cause statement was written correctly. The AJ reasoned: To include this specification, which is a minor error, which occurred only eight days after he began training, and is not supported by documentation is highly suspect. Complainant was not a frequent writer of probable cause statements previously. Given these facts, the Agency has not supported this specification. Regardless, to include this minor issue eight days into his formal training to support a Proposal to Remove is not reasonable. 2021001920 6 At the time of the second incident, noted the AJ, PO1 told the belligerent driver that Complainant was “doing the job the right way” yet he later criticized Complainant’s actions and included such criticisms in the proposed removal. The AJ further faulted the Agency for including “braggadocio-like comments” Complainant made following the incident, as the officers were merely discussing a hypothetical incident, not what actually occurred. With respect to issuing a verbal warning instead of a “1408 citation”, traffic citation warning, the AJ observed that Complainant was being punished for issuing a verbal instead of a written warning. Following a review of the record we agree with the AJ that the Agency’s criticism in this regard was “unreasonably heavy-handed.” Similarly, we find that the AJ appropriately concluded “it was management who had told Complainant to stow the rifle, and [PO1] did not tell Complainant to carry it given that it was his first time conducting perimeter security with him.” The instant record supports the AJ’s finding that there was no evidence that Complainant was instructed on the procedure related to apprehension of a subject nor that he violated such procedure. Rather, the record merely reflected a peer’s opinion that Complainant did not perform the action as he would have. As for the final incident, the record reflects that a coworker corroborated Complainant’s contention that he had been told to wait by the police vehicle. In sum, the AJ concluded that “none of these incidents were observed by a supervisor and none were followed up with corrective training at the time they allegedly occurred. The majority of these incidents appeared to be fabricated or spun to make Complainant look deficient.” We find the AJ’s finding in this regard to be supported by substantial evidence and we discern no basis to disturb the AJ’s findings. After reaching the conclusion that the events at issue appeared to be unsupported by evidence, fabricated or spun to cast Complainant in a negative light, the AJ went on the link this to unlawful retaliatory animus on the part of Agency management. Complainant testified that he was concerned that the delay in his start date was unfair and improperly motivated, so he contacted the EEO office at Ft Irwin prior to starting his job at Aberdeen. The AJ reasoned that Police Chief was likely aware of Complainant’s EEO activity when he attempted to rescind Complainant’s job offer and undoubtedly was aware of it shortly thereafter. Moreover, as noted by the AJ, S2 stated to the EEO Counselor that Complainant was "pushing for discrimination on day one when there was [sic] problems with his hiring." Therefore, the record confirms that management was aware of Complainant’s EEO activity by early April 2018 and the AJ’s findings are supported by substantial evidence. We find this knowledge was obtained sufficiently close in time to the September 13, 2018 proposed removal notice to support a nexus. A connection between Complainant’s EEO activity and the Agency’s actions was also revealed by the text messages exchanged between PO1 and PO2 on July 16, 2018. The messages illustrate that they were aware of Complainant’s EEO activity and that they harbored discriminatory animus. The messages, in pertinent part, stated: PO1: Bro, I don't know. He [Complainant] thinks I'm trying to set him up. I told him to just focus on the job and stop playing the victim. He doesn't listen 2021001920 7 PO2: Oh, and he’s got a meeting at i300 [1300] tomorrow at Bldg 43054. PO1: Wtf PO2: Him and his meeting he was talking to [X] PO2: I made him miss the other one when EA had a dio [bio-hazard event] PO1: Yup. Cuz the mean ol white men are discriminating against the helpless and innocent black man PO1: Full of shit D: Lol On appeal, the Agency argues that the AJ erred in finding that the reference Building 4305 indicated that PO1 and PO2 were aware of Complainant’s EEO activity. Instead, the Agency argues the record shows that Complainant was meeting with the union lawyer, not with an EEO Counselor. A review of the hearing transcript, however, reveals that Complainant’s referenced meeting was indeed related to protected EEO activity: AJ: What was the scheduled day that you were supposed to meet with the EEO to talk about that? Is this the previous meeting that was scheduled, but you had to miss? Complainant: No. . . . if you could refer to the text message from [PO1], where he pretty much ---- AJ: Oh, that was [X]. You were supposed to meet with [X]? Complainant: Correct. AJ: That’s the EEO? Complainant: Correct. AJ: When you were supposed to meet with [X] at the EEO office, was it about the continued harassment . . .? Complainant: Correct, then it was missed. The referenced text message - you can reference why it was missed. AJ: Yeah, somebody said - I guess it was [PO1 or 2] said, ‘I made him miss that meeting.’ We therefore conclude the AJ’s finding that Complainant was subjected to ongoing retaliatory harassment during his tenure at Aberdeen, culminating in the issuance of the notice of proposed removal, is supported by substantial evidence of record, and we discern no basis to disturb it. Constructive Discharge It is undisputed that Complainant resigned from his position at Aberdeen in lieu of being terminated by the Agency. The Agency argues that the AJ erred in considering Complainant’s constructive discharge claim because the matter had already been adjudicated by the Merit Systems Protection Board (MSPB). The record shows that Complainant filed a “mixed” case appeal with the MSPB regarding his constructive discharge claim. 4 Building 4305 houses the EEO Office. 2021001920 8 The AJ noted that “the MSPB dismissed the claim for lack of jurisdiction on August 23, 2019. Therefore, the constructive discharge claim, which is firmly enmeshed in this case, is addressed in this decision.” The Commission has long held that when the MSPB dismisses a case for lack of jurisdiction, the case becomes “un-mixed” and the Agency has to recommence processing the matter as a non- mixed EEO complaint. See 29 C.F.R. § 1614.302(c)(2)(ii). See also, Complainant v. Dep’t of Justice, EEOC Appeal No. 0120113297 (September 26, 2013); Cunningham v. Dep't of the Army, EEOC Petition No. 0320130019 (May 30, 2013); Levine v. Dep't of the Army, EEOC Appeal No. 0120122162 (Oct. 15, 2012). Here, the Agency argues that the MSPB made findings on Complainant’s discrimination claims and Complainant should have appealed those findings to EEOC through a petition to review. We disagree. The MSPB decision is clear that its conclusion was that it did not have jurisdiction over Complainant’s constructive discharge claim. As a result, Complainant was not provided with a hearing before the MSPB. EEOC has no authority to rule on the parameters of MSPB’s jurisdiction and, therefore, would likely have dismissed a petition filed by Complainant on the MSPB decision. Based on the constructive discharge unlawful retaliation finding (made for the same reasons as the finding of ongoing retaliatory harassment culminating in the proposal to remove Complainant), the AJ awarded relief that included backpay and other benefits, from the date of Complainant’s resignation to the date he subsequently began another job outside of the Agency.5 On appeal, the Agency asks that the award of backpay be vacated due to the MSPB decision. We, however, agree with the AJ. Once the MSPB declined to assume jurisdiction over the constructive discharge claim, the matter became “unmixed” and, pursuant to 29 C.F.R. § 1614.302(c)(2)(ii), was ripe for processing as an EEO complaint under the procedures detailed in 29 C.F.R. Part 1614, which would include a hearing before an EEOC AJ. As such, we conclude that under the circumstances presented here the AJ was correct in assuming jurisdiction of the constructive discharge claim and entering a finding of unlawful retaliation for the reasons discussed above. Therefore, we affirm the AJ’s decision to award Complainant backpay and other related benefits. In addition, we note the Agency does not dispute the award of non-pecuniary compensatory damages and we find that the harm caused by the Agency’s retaliatory harassment would be the same regardless of the legal theory underpinning it. Therefore, we discern no basis to disturb the award of non-pecuniary compensatory damages. 5 Complainant indicated to the AJ that he was not interested in being reinstated to his position with the Agency. 2021001920 9 CONCLUSION Based on a thorough review of the record and contentions on appeal, including those not specifically addressed herein, we find that the AJ’s finding that Complainant was subjected to retaliatory harassment and constructive discharge is supported by substantial evidence and we REVERSE the Agency’s final order. in part. We REMAND the matter to the Agency for further processing in according with this decision and the Order below. ORDER (D0617) To the extent the Agency has not already done so, it shall take the following remedial actions: 1. Within sixty (60) days of this decision being issued, the Agency shall pay Complainant nonpecuniary compensatory damages in the amount of $25,000. 2. Within one hundred and twenty (120) days of this decision being issued, the Agency shall pay Complainant backpay from October 11, 2018, the date Complainant resigned, until the day he began working at his new position at the National Zoo, plus interest and any overtime that he would have earned based on the average of overtime he earned while employed at the Aberdeen Proving Grounds, if any. 3. Within one hundred and twenty (120) of this decision being issued, the Agency shall restore all annual and sick leave, and any other employment benefits, Complainant would have accrued from October 11, 2018, the date Complaint resigned, until he began working at his new position at the National Zoo. 4. Within one hundred and twenty (120) days of this decision being issued, the Agency shall pay Complainant the penalty he incurred for the withdrawal from his retirement plan after his resignation and the interest he would have earned on that money had he not withdrawn it. 5. Within ninety (90) days of this decision being issued, the Agency shall provide three (3) hours of training to PO1, PO2, the Police Chief and S2 with a focus on reprisal. This training is separate from any already mandatory EEO-related training that the Agency may require. All staff must sign an attendance sheet that they were present for the training. 6. Within one hundred and twenty days (120) of this decision being issued, the Agency shall consider discipline for PO1, PO2, the Police Chief and S2. The Commission does not consider training to constitute discipline. 2021001920 10 7. If the Agency decides not to issue any discipline the Agency shall set out its reasons for such a decision. 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). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Directorate of Emergency Services Police Department facility in Aberdeen Proving Grounds, Maryland, 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. 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). 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. 2021001920 11 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. 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. 2021001920 12 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). 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 August 4, 2022 Date