Cornell S.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

0120180632 (E.E.O.C. Sep. 27, 2019)

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

Cornell S.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal Nos. 0120180632, 2019002470

Hearing No. 430-2017-00199X

Agency Nos. FS-2016-00585, FS-2016-00770, FS-2016-00945

DECISION

Complainant timely filed two appeals with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 27,
2017, and January 28, 2019, final decisions concerning his equal employment opportunity (EEO)
complaints 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., Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission VACATES the Agency’s final decisions.

The Commission may, in its discretion, consolidate two or more complaints of discrimination
filed by the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission
exercises its discretion and consolidates the above-captioned cases.

ISSUES PRESENTED

The issues presented are: (1) whether it was an abuse of discretion for the Equal Employment
Opportunity Commission Administrative Judge (AJ) to dismiss Complainant’s hearing request as

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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a sanction; and (2) whether the record is sufficiently developed to determine whether
Complainant was subjected to discrimination based on sex, disability, age, and/or reprisal.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a GS-0802-9 Civil
Engineering Technician based out of the Agency’s National Forests in North Carolina facility in
Asheville, North Carolina. Complainant stated that his job duties include inspecting the roads in
the forest and managing road improvement projects.

Complainant stated that he was diagnosed with a heart condition in July 2014. Complainant
stated that he has dizziness as a result of his heart issue and that he also takes a prescription
medication for his heart condition that interferes with his ability to drive. Complainant averred
that he filed a previous EEO complaint in 2015. At the time of events giving rise to these
complaints, Complainant was a 52- and 53-year-old male.

According to Complainant, he voluntarily gave up his federal driver’s license in March 2014
when he began having issues with dizziness and did not feel safe driving government-owned
vehicles by himself to conduct road inspections. Complainant stated that when he needed to do
field work he had to “beg” one of his coworkers to drive him. Complainant averred that some of
the roads are very remote and that some of his road inspection assignments are unsafe. A GS-
0810-11 Engineer (C1) stated that he frequently worked with Complainant and that they would
ride together, which C1 stated worked well. C1 agreed with Complainant’s characterization that
some of the roads were unsafe.

Complainant alleged that he was harassed beginning in 2001 but that the harassment escalated in
2014. Complainant averred that after a coworker retired his workload increased substantially. C1
stated that the workload for all employees was high in 2015 because there were a number of
vacancies. On December 18, 2014, Complainant’s second-level supervisor, the Staff Officer
(S1), issued him a letter stating that his position required him to perform a significant amount of
field work and to use a government vehicle and that not completing assignments as directed
could result in “administrative review and action.” According to S1, he issued this letter to avoid
Agency liability if Complainant completed field work using his personally owned vehicle.2
Complainant alleged that this letter constituted harassment because S1 was threatening him that
if he could not drive he should consider retiring or face the possibility of being fired.
Complainant averred that stress aggravates his heart problem. The record indicates that S1 retired
in early 2015.

2 The December 18, 2014, letter is not at issue in the instant appeals, as Complainant filed a
separate EEO complaint regarding the letter. The EEO Investigator assigned to investigate
Agency No. FS-2016-00945 did not interview S1 during the investigation, but Complainant
provided S1’s investigative affidavit from the previous EEO complaint for inclusion in the
record.
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According to Complainant, he filed a grievance about this letter, and management responded that
Complainant completing his field work while riding with a coworker was an undue hardship on
the Agency and not a prudent use of government funds.

In January 13, 2015, Complainant formally requested a reasonable accommodation, which would
allow him to ride with a coworker when completing field work. On March 12, 2015,
Complainant’s cardiologist sent the Agency a letter stating that, because of his heart condition
and use of prescription medication, Complainant should be accompanied when traveling to
remote areas. On April 15, 2015, the Agency’s Disability Program Manager (D1) notified
Complainant that driving was an essential function of his position, which could not be eliminated
through a reasonable accommodation, but that the Agency would attempt to reassign
Complainant to a different position as the reasonable accommodation of last resort. D1 asked
Complainant to complete a form indicating his geographic preferences and job interests by April
22, 2015. On December 16, 2015, D1 notified Complainant that she was closing his reasonable
accommodation request because he had not completed the requested form or responded to her
emails.

The record contains the Civil Engineering Technician position description, which states that the
incumbent must maintain a driver’s license to operate a motor vehicle to perform field work.
According to the record, the position description was most recently updated on October 9, 2012.
The record also contains a copy of Complainant’s fiscal year 2016 performance plan, which was
signed by Complainant’s then-supervisor on October 27, 2015, and notes that driving is a
required part of the position and that Complainant is expected to resume driving during the
upcoming year to complete his field work. Complainant declined to sign the performance plan.

On March 15, 2016, the Acting Staff Officer (S2) issued Complainant a letter, which directed
him to apply for a Government Motor Vehicle Operator’s Identification Card (GMVOIC) or
resume the driving requirements of his position by April 29, 2016. According to Complainant, he
cannot operate a motor vehicle because of the ongoing dizziness and the prescription medication
he takes for his heart condition. Complainant alleged that driving was only recently added to his
performance plan. S2 stated that having a GMVOIC is part of Complainant’s performance plan.
S2 estimated that Complainant was able to perform between 80 and 90 percent of his job
functions without driving. Complainant averred that he was issued the letter to convince him to
pursue disability retirement.

According to Complainant, a younger female coworker who does not have a disability (C2) has
the same position of record, but she is not required to drive by herself when she does field work.
Complainant alleged that C2 does “nearly the same job” that he does. S2 stated that C2 has a
different position and that she primarily does office work and does not need to perform regular
field work. C2 estimated that field work constitutes about one percent of her job duties, and she
stated that she frequently teleworks.3

3 Neither the EEO Investigator assigned to investigate Agency Nos. FS-2016-00585 and FS-
2016-00770 nor the EEO Investigator assigned to investigate Agency No. FS-2016-00945
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The record does not contain the position description or performance plan for C2 or for any other
GS-0802-9 Civil Engineering Technicians assigned to Asheville. According to a September 23,
2016, organization chart in the record, there were five GS-0802-9 Civil Engineering Technicians
based in Asheville. Except for Complainant, the record contains limited, or no, demographic
information for these employees.

Complainant stated that, at a May 2016 safety meeting, he saw a Job Hazard Analysis (JHA)
from another forest and that the JHA indicated that employees could not work in the field by
themselves without prior supervisory approval. Complainant alleged that the Forest Supervisor
(S3) approached him the next day and told him that, while supervisory approval might be
required in order to work alone in other forests, it would be “different” in the National Forests of
North Carolina. According to S3, each district can set its own policies and processes. S3 averred
that the North Carolina District Rangers use a check-in and check-out procedure for employees
working in the field and are not required to use the JHA for field work.

Appeal No. 0120180632

On May 16, 2016, Complainant filed an EEO complaint (Agency No. FS-2016-00585) alleging
that the Agency discriminated against him on the bases of sex (male), disability (heart condition),
age (53), and reprisal for prior protected EEO activity when:

1. On March 15, 2016, he received a letter that ordered him to apply for a GMVOIC or
resume the driving requirement of his position by April 29, 2016.

On July 20, 2016, Complainant filed an EEO complaint (Agency No. FS-2016-00770) alleging
that the Agency discriminated against him on the bases of sex (male), disability (heart condition),
age (53), and reprisal for prior protected EEO activity4 when:

2. On May 11, 2016, S3 stated that, while other National Forests might require prior
approval of a JHA for an employee to work alone, it would be “different” for the
National Forests of North Carolina.

The Agency consolidated Complainant’s complaints for investigation. 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 AJ, and Complainant timely requested a hearing.

interviewed C2, but Complainant provided her investigative affidavit from a previous EEO
complaint for the investigators to include in the record.

4 Complainant also alleged parental status and marital status as bases for the three EEO
complaints at issue. The Commission does not have jurisdiction over claims of employment
discrimination based on parental status or marital status.
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On March 24, 2017, the AJ assigned to the case scheduled an initial conference for August 3,
2017, at 11:30 a.m. On May 11, 2017, the Agency provided Complainant and the AJ with call-in
information for the initial conference. Complainant did not call in to the initial conference on
August 3, 2017. On August 4, 2017, the AJ issued a Notice of Intent to Dismiss Hearing Request
and Order to Show Cause, ordering Complainant to provide a written response no later than
August 14, 2017. The AJ stated that the written response needed to be received by that date and
could be emailed to charlottehearings@eeoc.gov.

On August 14, 2017, Complainant sent an email to charottehearings@eeoc.gov, which appears to
be a typographical error.5 In his email, Complainant stated that he tried to call in for the
scheduled initial conference but that he was in the field and did not have cell service. On August
29, 2017, the AJ dismissed Complainant’s hearing request as a sanction for failing to participate
in the initial conference and failing to respond to her Notice of Intent to Dismiss Hearing
Request. On September 19, 2017, Complainant forwarded his August 14, 2017, email to
charottehearings@eeoc.gov to the correct address as proof that he had responded to the AJ in a
timely manner.

The AJ remanded the consolidated complaints to the Agency, and the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged. The Agency found
that Complainant was not a qualified individual with a disability with respect to his position of
record because driving was an essential function. The Agency determined that the Agency
fulfilled its obligation under the Rehabilitation Act because Complainant abandoned the
interactive process after the Agency proposed reassigning him as a reasonable accommodation of
last resort. The instant appeal followed.

Appeal No. 2019002470

On October 22, 2016, Complainant filed an EEO complaint (Agency No. FS-2016-00945)
alleging that the Agency discriminated against him on the bases of sex (male), disability (heart
condition), age (52), and reprisal for prior protected EEO activity when:

3. On January 25, 2015, management failed to reasonably accommodate him when his
request to ride with a coworker during work assignments was denied; and

4. During an unspecified timeframe, management subjected him to various acts of
harassment, including, but not limited to, his being misled and bullied when given work
assignments in an increasing workload, held to different standards, and performing work
assignments under unsafe conditions.

The Agency dismissed claims 3 and 4, as well as three additional claims, on procedural grounds.
Complainant appealed the Agency’s final decision dismissing his complaint to the Commission.

5 Complainant did not copy the Agency representative on the email.
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The Commission reversed the Agency’s dismissal of claims 3 and 4 and remanded these claims
to the Agency for further processing but affirmed the dismissal of the other claims. Cornell S. v.
Dep’t of Agriculture, EEOC Appeal No. 0120170959 (Apr. 5, 2018).

At the conclusion of the investigation of the remanded claims, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC AJ. When Complainant did not respond within the timeframe provided in 29 C.F.R. §
1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein,
the Agency concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. With respect to Complainant’s reasonable accommodation claim, the
Agency determined that driving was an essential function of Complainant’s position and that the
Agency’s offer to reassign Complainant was an effective reasonable accommodation. The instant
appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he timely responded to the AJ on August 14, 2017, and
that he followed up after he received the AJ’s order dismissing his hearing request on September
19, 2017. Complainant also argues that he cannot operate a motor vehicle because of his
disability. According to Complainant, he did not respond to the Agency’s reassignment offer
because he had filed various EEO complaints and wanted to work out his reasonable
accommodation through the EEO process.

In response to Complainant’s appeals, the Agency contends that Complainant failed to establish
that he was subjected to discrimination and requests that its final decisions be affirmed. In the
alternative, the Agency argues that Complainant has raised an identical reasonable
accommodation claim in previous EEO complaints that have already been decided by the
Agency and/or the Commission and should be dismissed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review “requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Dismissal of Complainant’s Hearing Request as a Sanction

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An AJ has the authority to sanction either party for failure without good cause shown to fully
comply with an order. 29 C.F.R. § 1614.109(f)(3). The sanctions available to an AJ for failure to
provide requested relevant information include an adverse inference that the requested
information would have reflected unfavorably on the party refusing to provide the requested
information, exclusion of other evidence offered by the party refusing to provide the requested
information, or issuance of a decision fully or partially in favor of the opposing party. See Hale
v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be
tailored in each case to appropriately address the underlying conduct of the party being
sanctioned. A sanction may be used to both deter the non-complying party from similar conduct
in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve
this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal
of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the
complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep’t
of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).

Complainant contends that his hearing request should not have been dismissed because he timely
responded to the AJ. The record reflects that Complainant sent his August 14, 2017, email to the
wrong email address. Therefore, the AJ had no notice that Complainant attempted to respond to
her notice, and it was not an abuse of discretion to dismiss his hearing request under these
circumstances. We further find that, even if the AJ had received Complainant’s August 14, 2017,
email, she likely would have found that Complainant did not show good cause for failing to
participate in the initial conference and still would have dismissed his hearing request as a
sanction. Complainant had ample notice of the initial conference, and poor cellphone service is
not a valid reason for failing to participate. Moreover, the record reflects that Complainant did
not attempt to contact the AJ or the Agency to notify them of the issue until after he received the
AJ’s Notice of Intent to Dismiss Hearing Request and Order to Show Cause. Accordingly, we
decline to remand this matter for a hearing.

Adequacy of the Record

EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an
impartial and appropriate factual record upon which to make findings on the claims raised in the
complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder
may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.;
EEO MD-110, at Chap. 6, § IV.B. An investigation must “include a thorough review of the
circumstances under which the alleged discrimination occurred; the treatment of members of the
complainant's group as compared with the treatment of similarly situated employees . . . and any
policies and/or practices that may constitute or appear to constitute discrimination, even though
they have not been expressly cited by the complainant.” Id. at § IV.C. Also, an investigator must
identify and obtain “all relevant evidence from all sources regardless of how it may affect the
outcome.” Id. at § V.D.

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Upon review, the Commission finds that the investigations were inadequate and that the record
lacks the thoroughness required for the fact-finder to address the ultimate issue of whether
discrimination occurred when Complainant’s 2015 reasonable accommodation request was
denied and when he received a letter that ordered him to apply for a GMVOIC or resume the
driving requirement of his position by April 29, 2016. In both of the final decisions, the Agency
determined that driving was an essential function of Complainant’s position that could not be
eliminated through reasonable accommodation6 but that he was not similarly situated to C2, who
had the same position description but was not required to conduct field work unaccompanied by
a coworker. However, the record contains no documentary evidence regarding comparator
employees, including C2, and the only investigative affidavit from a GS-0802-9 Civil
Engineering Technician coworker of Complainant is the affidavit C2 submitted in response to a
separate EEO investigation. This missing evidence is critical to our review of whether driving
was an essential function of Complainant’s position and whether the Agency’s explanations for
its actions are credible or pretext for discrimination. Accordingly, we will remand this matter to
the Agency to conduct a supplemental investigation. To avoid fragmenting claims, we decline to
address Complainant’s remaining disparate treatment and hostile work environment allegations.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the Agency’s final decisions finding no
discrimination and REMAND the matter to the Agency for further processing in accordance with
this decision and the ORDER below.

ORDER

Within ninety (90) calendar days of the date that this decision is issued, the Agency shall conduct
and complete a supplemental investigation for Agency Nos. FS-2016-00585, FS-2016-00770,
and FS-2016-00945 consistent with the requirements of 29 C.F.R. § 1614.108(b) and Chapter 6
of EEO MD-110 and consistent with this decision. The Agency shall obtain detailed sworn
statements and relevant documentation, and the supplemental investigation shall include, at a
minimum:

6 We disagree with the Agency’s contention on appeal that Complainant’s reasonable
accommodation claim should be dismissed pursuant to 29 C.F.R. § 1614.107(a) for stating the
same claim as claims that are pending before or have been decided by the Agency or the
Commission. Because of the case-specific nature of the reasonable accommodation process,
various factors, such as the essential functions of a position, can change over time. Therefore, the
adjudication of claims dating from 2014 has no bearing on whether Complainant was denied a
reasonable accommodation in 2015 and 2016. However, the Commission will limit the
supplemental investigation to the time frame beginning on January 1, 2015, and ending on July
31, 2016.
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1. Documentary evidence regarding comparators, including position descriptions,
performance plans, and demographic information (sex, disability, age, and prior protected
EEO activity) for all GS-0802-9 Civil Engineering Technicians based in Asheville, North
Carolina, between January 1, 2015, and July 31, 2016, including Complainant and C2.

2. Investigative affidavits from all GS-0802-9 Civil Engineering Technicians based in
Asheville, North Carolina, between January 1, 2015, and July 31, 2016, including
Complainant and C2. The EEO Investigator shall ask these employees, at a minimum, to
describe the essential functions of their positions and to provide an estimate of the
percentage of on-duty time the employee was required to operate a government-owned
vehicle to complete job-related tasks during this time frame and an explanation of
whether the employee was required to drive by himself or herself when completing these
job-related tasks. If an employee indicates that he or she was accompanied by another
employee when completing job-related tasks in the field, the EEO Investigator shall ask
about the individual(s) in question and why the employee did not drive alone when
completing job-related tasks. If a GS-0802-9 Civil Engineering Technician is no longer
available, an explanation for the unavailability shall be provided for the record.

3. Investigative affidavits from S1, S2, S3, and/or other employees who supervised or
managed GS-0802-9 Civil Engineering Technicians based in Asheville, North Carolina,
between January 1, 2015, and July 31, 2016, describing the essential functions of each
GS-0802-9 Civil Engineering Technician’s assignment during this time frame and
explaining with specificity what percentage of on-duty time each GS-0802-9 Civil
Engineering Technician was required to operate a government-owned vehicle to complete
job-related tasks during this time frame, whether these employees were required to drive
alone when completing these job-related tasks, and why the employee(s) did not drive
alone if not required to do so. The Investigator shall also ask the supervisors or managers
whether driving was an essential function of Complainant’s position and, if so, how the
work related to this essential function was completed during this time period after
Complainant voluntarily gave up his federal driver’s license in 2014.

4. Complainant shall be provided an opportunity to review the supplemental evidence,
including the investigative affidavits, and submit a rebuttal affidavit.

Following completion of the investigation, the Agency shall issue a new final decision on claims
1, 2, 3, and 4 as identified in this decision, with notice of appeal rights as provided in 29 C.F.R. §
1614.110(b).

Unless the parties have otherwise resolved this matter, the Agency must provide the Compliance
Officer with a copy of the supplemental investigative report and the final decision, as referenced
below in the statement titled “Implementation of the Commission’s Decision.”

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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 CFR § 1614.503(f) for enforcement by that agency.

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.
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See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
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 (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.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

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

September 27, 2019
Date