Angelique H.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120181276 (E.E.O.C. Aug. 13, 2019)

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

Angelique H.,1
Complainant,

v.

Kevin K. McAleenan,
Acting Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.

Appeal No. 0120181276

Hearing No. 510201600029X

Agency No. HSTSA012612014

DECISION

Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s January 18,
2018 Final Order concerning an 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., and Section 501 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Supervisory Transportation Security Officer ("STSO"), G Band, at the Gainesville Regional
Airport in Gainesville, Florida.

On August 28, 2014, Complainant filed an EEO complaint alleging discrimination by the
Agency on the bases of race (African-American), sex (female), disability (physical and mental),
and reprisal (prior protected activity) when:

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. On an unspecified date, she asked her supervisor (“S1”) for a parking space to
accommodate her disability, but S1 never responded to her request.

2. On March 24, 2014, when she parked next to the airport building to unload
items, S1 threatened to write her up and yelled at her "Don't you ever park
here again," with his fist balled up and teeth clenched.

3. On March 24, 2014, S1 told her, "I am not being argumentative. You are the
one being argumentative. We will see how far this gets."

4. On April 3, 2014, she was placed on a non-paid status effective April 4, 2014,
and escorted out of the building in front of her staff.

Complainant’s first level supervisor (“S1”) was a Transportation Security Manager (“TSM”),
Band-I, her second level supervisor (“S2”) was a Deputy Assistant Federal Security Director
(“DAFSD”), Band-J, and, her third level supervisor (“S3”) was an Assistant Federal Security
Director (“AFSD”) for Screening, Band-K. All three supervisors were male, had engaged in prior
EEO activity, and did not specify their disability status for the record. S1 and S2 identified as
Caucasian, and S3 identified as African American. Complainant named S1, S2, and S3 in
previously filed EEO Complaints, which are the basis for her reprisal allegation.2

As a Supervisory Transportation Security Officer (“STSO”), Complainant was responsible for
performing and supervising Lead TSOs (“LTSOs”) and TSOs as they performed “all security
functions related to the screening of people, property and cargo.” As a supervisor, Complainant
typically did not engage in the more physically strenuous aspects of screening. She documented
incidents, drafted briefings and reports, allocated tasks and assignments, monitored check points,
observed and provided feedback to TSOs and LTSOs regarding tactical communication,
communication with passengers, and threat mitigation. She was also responsible for providing
technical assistance with screening devices and procedures. Regardless, as a “Condition of
Employment” all STSOs still had to be able to “meet and maintain medical requirements for
screening work,” including, but not limited to “efficiently and thoroughly manipulate and lift
baggage, containers, and other objects subject to security processing” and the “ability to
repeatedly lift and carry items weighing up to 70 pounds.”

2 Agency Case No. HSTSA047722009 (Apr. 20, 2011) (Final Agency Decision (“FAD”) finding
“no discrimination” where Complainant alleged that in January 2009, S1 denied her request to
move to a vacant shift in favor of a white male STSO with less seniority, and in May 2009 and
ongoing, S1 subjected her to harassment, including disparaging comments about her “street”
pronunciation and grammar); Agency Case No. HSTSA016482013 (Nov. 5, 2014) (FAD finding
“no discrimination” where Complainant alleged, among other things, that S2 and S3 subjected
her to a medical exam and forced her to see a psychiatrist, S1 and HR submitted false
information to OWCP and refused to provide her access to her records, S1 improperly stripped
her of her supervisory duties for 118 days starting in June 2013, and that on January 7, 2014, S2
and S3 issued disciplinary action based on false information provided to OWCP).
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In January 2008, Complainant tore a ligament in her wrist while on the job, aggravating a
service-connected disability. She was placed on Limited Duty status after filing a claim for
workers’ compensation with the Department of Labor, Office of Workers’ Compensation
Programs (“OWCP”). Due to the injury, Complainant developed carpal tunnel syndrome and
tendonitis, experienced ongoing pain, and her muscle strength and range of motion decreased. In
2009, Complainant began experiencing panic attacks, and was diagnosed with Anxiety. She was
later diagnosed with Depression in 2012. The symptoms and medication side effects associated
with her mental disabilities included fatigue, difficulty concentrating, general aches and pains,
and disruption to her sleep, breathing, gastrointestinal functions, and immune system.

On September 4, 2013, at S3’s instruction, Complainant underwent an evaluation with a DOL
physician. Afterward, the physician sent a letter to the Agency’s Human Resources Office
(“HR”) which stated that Complainant “reached maximum medical improvement and has
permanent restrictions.” According to the physician, Complainant could not push, pull, or lift
over 10 pounds, reach over her shoulder for over 4 hours, or engage in repetitive movements of
her wrist and elbow for more than 3 hours.

Claims 1, 2, & 3: Accommodation Request & the Events of March 24, 2014

On March 24, 2014, Complainant parked her car in the Managers’ Lot beside the Airport
building and dropped off some food items that, due to her wrist injury, were too heavy for her to
carry from the Employee Lot. According to Complainant, when she returned, S1 was by her car,
fists balled up, teeth clenched, yelling at her and threatening to write her up for illegally parking.
Complainant recounts that she regularly unloaded items by temporarily parking in the Managers’
Lot, but alleges that S1 only started giving her a hard time about it after she filed an EEO
complaint. She further alleges that S1 never responded when she asked if she could have one of
the unused parking spaces in the Managers’ Lot as an accommodation for her disability.

Later that morning, Complainant alleges that S1 balled his fist, clenched his teeth, and snapped at
her for asking a question. Complainant describes S1 as “always on attack mode” when
communicating with her, regardless of the topic, and that he is professional and respectful when
white men ask him questions. That day, Complainant asked S1 why he was addressing her in an
argumentative tone, which is when he allegedly responded "I am not being argumentative. You
are the one being argumentative. We will see how far this gets."

S1 denies exhibiting angry mannerisms such as clenching his teeth or balling his fists during
either exchange. He describes his tone as “professional” and his demeanor as “open and
approachable.” S1 denies making the statements about Complainant acting argumentative. With
respect to parking, S1 states that the Airport CEO notified him about an illegally parked car in
the Managers Lot, and instructed him to have the employee park in the Employee Lot. S1 also
denies threatening to write Complainant up because temporarily parking to unload is permissible
for all employees, regardless of disability status. S1 testified that he did not recall receiving a
request from Complainant for a parking space in the Manager’s Lot as a reasonable
accommodation, and that such a request would go through the Airport, not the Agency.
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Complainant notified S2 and S3 in an email describing S1’s conduct toward her as retaliatory
and harassment. S3 testified that he responded with a “questionnaire” about her concerns to
obtain further clarification. When Complainant replied on March 31, 2014, S3 states that he
“allowed [S2] to determine what action, if any, to take.” He did not know if S2 took action.
Complainant testifies that neither S2 nor S3 followed up.

Claim 4: Non-paid Status Effective April 4, 2014

On April 4, 2014, Complainant was at the checkpoint, when S1 instructed her to go to the
boardroom to meet with S2 and S3. Complainant assumed they wanted to discuss the March 24,
2014 incidents she reported, but instead, S3 informed her that she was being placed on a non-
paid status because she was unable to perform her job duties. He provided her with an April 3,
2014 Memorandum, which listed various mandated performance standards and cited the
September 4, 2013 letter from the DOL Physician, as evidence that Complainant was unable to
perform “at least three” of them. At the physician and HR’s recommendation, the Memorandum
referred Complainant to Vocational Rehabilitation with Direct Placement through DOL.
Complainant was escorted from the building, and instructed to direct any additional questions to
DOL. Complainant later obtained a disability retirement.

After investigating the complaint, 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 (“EEOC” or “Commission”) Administrative Judge (“AJ”).
Complainant timely requested a hearing. The Agency submitted a Motion for a Decision Without
a Hearing, which the AJ Granted. On December 15, 2017, over Complainant’s objection, the AJ
issued a decision by summary judgment in favor of the Agency.

The Agency subsequently issued its Final Order adopting the AJ’s finding that Complainant
failed to prove discrimination as alleged. The instant appeal followed.

ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when she or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the agency was motivated by discriminatory animus.

Disparate Treatment: Claim 4

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, she or she must first 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

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

The Agency’s legitimate nondiscriminatory reason for placing Complainant on non-paid status
effective April 4, 2014 is that Complainant cannot meet the medical requirements mandated by
the Aviation Transportation and Security Act (“ATSA”). Complainant’s physical restrictions
prohibit her from lifting, carrying, pushing, or pulling items that weigh over 10 pounds. She also
states in the record that both her mental and physical disabilities disrupt her sleep, and that the
medications and symptoms of her mental illness impact her focus.

The April 3, 2014 Memorandum that Complainant was disqualified from her job pursuant to the
ATSA Medical and Psychological Guidelines for TSA, TSOs Job Series, October 2013
(“Medical Guidelines”) and based on the DOL Doctor’s September 4, 2013 letter (“Doctor’s
Letter”). We have previously found this sufficient documentary evidence to support ATSA as a
legitimate nondiscriminatory reason. See Mary H. v. Dep’t Homeland Sec., EEOC Appeal No.
0120172753 (Feb. 21, 2019) (finding no discrimination where the agency removed a TSO after
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an Agency doctor determined that she was medically unfit to work as a screener, because she
sustained an injury that resulted in permanent intermittent chronic lower back pain, and required
pain medication).

Complainant alleges, without offering specifics, that her coworkers with disabilities were not
placed on non-pay status, and argues that Management selectively enforces the ATSA mandatory
qualification standards, favoring white males. However, Complainant has not provided further
information or evidence that would give rise to a question of material fact sufficient to warrant a
hearing. Significantly, there is no evidence that these other employees were found by a DOL
Doctor to have reached “maximum medical improvement.”

While the ATSA may allow for an STSO to go on Limited Duty until they recover enough to
meet ATSA qualification standards, it is undisputed that Complainant was found permanently
unable to meet the ATSA qualification standards.

Reasonable Accommodation: Claim 4 (Limited Duty)

Under the Rehabilitation Act and the Commission's regulations, an agency is required to make
reasonable accommodation of the known physical and mental limitations of a qualified
individual with a disability unless the agency can show that accommodation would cause an
undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). Reasonable accommodation includes job
restructuring and reassignment to a vacant position. 29 C.F.R. § 1630.2(o)(2)(ii).

The term “qualified” with respect to an individual with a disability means the individual satisfies
the requisite skill, experience, education and other job-related requirements of the employment
position such individual holds or desires and, with or without reasonable accommodation, can
perform the essential functions of such position. 29 C.F.R. § 1630.2(m). It is undisputed that
Complainant is an individual with a disability. Complainant acknowledges that she cannot fully
perform her job duties, but argues that she is “qualified” because she has successfully performed
the essential functions of her position while on Limited Duty.

The Commission has held that where an employee has a modified position for an extended
amount of time, it is to be considered the position which is considered for purposes of
determining whether the employee is a qualified individual with a disability. See McConnell et
al. v. United States Postal Serv., EEOC Appeal No. 0720080054 (Jan. 14, 2010). The record
reveals that Complainant held a Limited Duty (modified) STSO position for an extended amount
of time, beginning in 2008 through her placement on non-pay status on April 4, 2014.

Alternately, Complainant contends that she is “qualified” because the ATSA qualification
standards that the Agency relied on to place her on a non-pay status do not equate to “essential
functions” of her position. According to Complainant, the majority of her day to day job
responsibilities are not impacted by the physical requirements of the STSO position, and in
instances (approximately once a month) where she is required to lift 70 pounds, a coworker or
one of her staff assists her.
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For Claim 4, the Agency cites the Aviation Transportation and Security Act (“ATSA”). By
passing the ATSA, Congress created the Agency and granted it broad authority over airport
security screening, including setting the qualifications, conditions, and standards of employment
for airport security screeners. 49 U.S.C. § 114. The ATSA requires that security screeners
“demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep
deprivation, medication, or alcohol,” 49 U.S.C. § 44935(c)(2)(A)(v), and “possess basic
aptitudes and physical abilities, including color perception, visual and aural acuity, physical
coordination, and motor skills.” Id. § 44935(f)(1)(B). The ATSA also provides that “at a
minimum [a security screener must] meet such other qualifications as the Under Secretary may
establish.” Id. § 44935(e)(2)(A)(iv).

Although ATSA grants the Agency with broad authority to establish terms and conditions of
employment for security screeners, that authority does not provide complete exemption from the
Rehabilitation Act and other EEO Statutes. See Chapman v. Dep’t of Homeland Sec., EEOC
Appeal No. 0120051049 (Aug. 6, 2008), req. for recon. denied, EEOC Request No. 0520080805
(Dec. 11, 2008); Adams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120054463 (Aug. 31,
2007); Getzlow v. Dep’t of Homeland Sec., EEOC Request No. 0520070839 (Oct. 12, 2007).
The Agency must comply with the requirements of the EEOC statutes unless they pose an
“irreconcilable conflict” with the requirements under ATSA. Id. The Commission has long found
that when such a conflict exists, the ATSA standard will supersede the EEO Statute at issue. Id.

We find Complainant’s arguments lead to an “irreconcilable conflict” between the Rehabilitation
Act and ATSA. Given that Complainant achieved “maximum medical improvement,” and is still
physically unable to perform at least three of the mandatory qualification standards for STSOs,
any accommodation would require the Agency to waive standards established under the ATSA.
Likewise, the job qualifications Complainant challenges were developed by the Agency for all
screening personnel pursuant to ATSA. Therefore, an analysis of whether these “standards” are
“essential functions” of the STSO position would constitute an “irreconcilable conflict.”

Reasonable Accommodation: Claim 1 (Parking Space)

Commission precedent establishes that an agency cannot be held liable solely for a failure to
engage in the interactive process. Liability for a failure to engage occurs when the failure to
engage in the interactive process results in the agency's failure to provide reasonable
accommodation. Broussard v. United States Postal Serv., EEOC Appeal No. 01997106 (Sept. 13,
2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). The sole purpose of the
interactive process is to facilitate the identification of an appropriate reasonable accommodation,
and an agency's failure to engage in this process does not give rise to a separate cause of action
because the interactive process is not an end in itself. Broussard.

For Claim 1, Complainant alleges that she asked S1 for a parking space closer to the airport
building, in the Managers’ lot, to accommodate her disability, but S1 never responded to her
request. S1 testified that he did not recall Complainant making this request, and states that she
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should have contacted the Airport Authority, as the Agency is not responsible for arraigning
“preferential” parking. He claims not to have known that two of his subordinates obtained closer
parking spaces as reasonable accommodations through the Airport Authority. There is also no
response to Complainant’s allegation that he allowed her coworkers to use vacant spots when
Managers are absent, and that because the Agency is already paying for a certain amount of
spaces, in the Managers’ parking lot, it has authority to provide her one of the empty spaces as a
reasonable accommodation.

Assuming, arguendo, that the events occurred as alleged by Complainant, Claim 1 indicates a
question of fact regarding whether S1 met his obligation to engage in the interactive process
under the Rehabilitation Act. However, because Complainant does not meet the physical
requirements established by the Agency under the ATSA, we find no violation occurred. See,
e.g. Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015) (AJ
found the Agency failed to engage in the interactive process, but its failure was harmless as there
was no reasonable accommodation which could have allowed Complainant to perform the
essential functions of his job).

Harassment/Hostile Work Environment: Claims 2 and 3

To prove her harassment claim, Complainant must establish that she was subjected to conduct
that was either so severe or so pervasive that a “reasonable person” in Complainant’s position
would have found the conduct to be hostile or abusive. Complainant must also prove that the
conduct was taken because of her prior EEO activity. Only if Complainant establishes both
hostility and motive, will the question of Agency liability present itself. See Henson v. City of
Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability
for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999).

Our regulations prohibit "only behavior so objectively offensive as to alter the conditions of the
victim's employment." See Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 81 (1998). Thus,
federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not
"extremely serious." Rather, the conduct must be "so objectively offensive as to alter the
'conditions' of the [Complainant’s] employment." The conditions of employment are altered only
if the harassment culminated in a tangible employment action (such as discipline) or was
sufficiently severe or pervasive to create a hostile work environment. We have also held that “a
few isolated incidents of alleged harassment are usually insufficient to state a claim.” See
Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (Jul. 12, 1996); Banks v.
Health & Human Servs., EEOC Request No. 0594081 (Feb. 16, 1995).

Claims 2 and 3 describe two isolated incidents of harassment by S1 that took place within a
single day. Neither incident resulted in an adverse employment action. For instance, S1 did not
follow through with his threat to write Complainant up for parking in the Managers’ Lot.
Likewise, the incidents did not alter the terms and conditions of Complainant’s employment.
Complainant, like her colleagues, was still permitted to temporarily park in the Managers’ Lot to
unload her car. Therefore, even though S1 may have yelled at Complainant, and caused
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Complainant to feel threatened and humiliated, the isolated incidents of were not “extremely
serious” for purposes of establishing whether the incidents were so severe as to constitute
harassment or create a hostile work environment.

Complainant argues that Claims 2 and 3 were not “isolated incidents” but rather a continuation
of harassment by S1 since 2009. She offers witness testimony from three of her former
subordinates, confirming that S1 used racially insensitive language, and treated male and female
employees differently, particularly by yelling at and verbally abusing female employees in public
areas. One former subordinate testified that S1 would treat Complainant “like trash” in front of
them. All three regularly saw Complainant leave S1’s office crying.

However, the instances Complainant offers as evidence of ongoing discriminatory harassment
were already raised and determined nondiscriminatory in her prior EEO complaints. By asking
us to consider them again in support of her new claim, Complainant is attempting to revive
previously litigated issues, which is barred under the legal doctrine of Res Judicata. See Bezelik
v. Nat’l Sec. Agency, EEOC Request No. 05A11104 (May 8, 2003). The witness testimony from
Complainant’s former subordinates, while concerning, is too general on its own to establish a
question of fact over whether the specific events alleged in Claims 2 and 3 were severe or
pervasive enough to constitute harassment. Even considering the testimony and assuming the
events in Claims 2 and 3 unfolded exactly as Complainant alleged, they were not severe and
pervasive enough to constitute harassment.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
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at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The

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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 13, 2019
Date