Darin B.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120141930 (E.E.O.C. Nov. 1, 2016)

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

Darin B.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation,
Agency.

Appeal No. 0120141930

Hearing No. 560-2013-00250X

Agency No. 2012-24741-FAA-05

DECISION

On April 23, 2014, Complainant filed an appeal from the Agency’s March 26, 2014, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Facility
Management Specialist at the Agency’s work facility in Oklahoma City.

On November 7, 2012, Complainant filed an EEO complaint wherein he claimed that the
Agency subjected him to a hostile work environment on the bases of his age (52) and in
reprisal for his prior protected EEO activity under the ADEA when:

1. In March 2010, Complainant was the only member of the Technical Evaluation
Team who did not receive a cash award;

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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2. On May 12, 2011, a colleague made an inappropriate comment and the issue was
not addressed by management;

3. In October 2011, Complainant was removed from a contract;

4. In April 2012, Complainant was approached by a coworker after reporting him for
fraudulent time and attendance (T&A); management purposely told the coworker
that Complainant was the informant in order to create a hostile work environment;

5. On September 4, 2012, Complainant became aware that a coworker was chosen for
the Team Lead position of Facility Management Program Specialist; and

6. In October 2012, Complainant learned that coworkers and management were
discussing his well-being with each other.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. With regard to claim (1), the Division Manager stated that
Complainant was not a member of the Technical Evaluation Team. According to the Division
Manager, Complainant was approached about being on the team in 2011, but management
approached more people than were needed and he never was placed on the team. The Division
Manager asserted that an employee is not a member of a team until he/she meets with the
Procurement Office and signs a nondisclosure statement.

Complainant claimed that he was a member of the Technical Evaluation Team and that each of
the other members of the team received a cash award in 2011. Complainant maintained that he
did not receive a cash award in reprisal for him stating in the Agency’s Focus publication that
the hiring of an employee (now the Team Lead) was a violation of the Agency’s Core
Compensation Policy. According to Complainant, the Assistant Division Manager told him
that the Program Manager instructed the Division Manager that he was not supposed to get
anything from the organization again due to his Focus comments.

The Agency noted that Complainant, along with other members of the Facility Management
Team, received in July 2009 a $500 cash award. The Agency stated that a Facilities
Management Specialist stated he worked on the Technical Evaluation Team but never did so
with Complainant. This Specialist added that he was present at a meeting with Complainant
and the Team Lead when the latter informed Complainant that he had removed him from the
Technical Evaluation Team. Complainant submitted three e-mails from 2010 which named
him along with three members of the Technical Evaluation Team as recipients. Complainant
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also presented an e-mail, dated March 12, 2012, which contained a handwritten note indicating
the Team Lead had taken him off the Technical Evaluation Team.

With respect to claim (2), the Agency stated that Complainant claimed that the coworker who
eventually became the Team Lead (hereinafter referred to as the Team Lead) made a lewd
reference to his genitals while joking with the Assistant Division Officer about having “hot
wieners” at a barbecue. Complainant asserted that the Assistant Division Officer than made a
hand gesture toward Complainant’s office. Complainant stated that he immediately brought the
matter to the Division Officer’s attention and that the Division Officer stated he would take
care of it. Complainant claimed that fifteen minutes later the Team Lead confronted him about
“crying” to the Division Officer. The Division Officer stated that the Assistant Division
Officer informed him the comment was made to a former employee and was intended to ensure
that person was ready to assist with preparation of the lunch. The Assistant Division Officer
explained to the Division Officer that the Team Lead did not make any gestures. The Agency
stated that the Team Lead stated that he apologized to Complainant if he was offended.
According to the Team Lead, he told Complainant that if he had come to him directly, he
would have explained the context of his remark.

As for claim (3), Complainant stated that in March 2011, the Division Officer removed him as
a Contracting Officer Representative (COR) from the Oklahoma City Airport Trust (OCAT)
contract without his knowledge. Complainant claimed that he was removed from the contract
in reprisal for filing a grievance about not getting overtime and for his Focus article. The
Division Officer stated that Complainant was removed as a COR because the Assistant
Division Officer had received feedback from OCAT employees that Complainant had requested
OCAT to perform work which was not covered by the lease between the Agency and OCAT.
The Division Officer asserted that the Assistant Division Officer was concerned that this could
damage the relationship between the Agency and OCAT.

According to the Assistant Division Officer, Complainant was removed from the OCAT
contract due to performance and inappropriate action/behavior on contract issues. He added
that Complainant was disliked as an employee due to his negative actions over the years and
because of his complaining, and threatening to go to the union on any issue. Complainant
maintains that two OCAT representatives who worked on the contract told him they never had
a problem with him. The Agency noted that Complainant submitted a letter from a
construction supervisor in support of his position.

With regard to claim (4), Complainant argued that a hostile work environment developed
because management talked to his coworkers about him behind his back. Complainant stated
that his peers would no longer talk to him after he reported two employees for time and
attendance fraud. Complainant stated that one of the employees he named told another
employee to watch his back around Complainant. The Division Manager and one of the
officials involved in investigating the fraud charge denied divulging Complainant’s claim to the
accused employees. The official involved in the investigation asserted that the accused
employees advised him that Complainant was bragging about reporting the alleged fraud. One
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of Complainant’s coworkers stated that the accused employees left work early to bring dinner
to a coworker who was in the hospital and they did not report it on their timesheets.
Complainant denied bragging about turning in his coworkers for fraud.

With respect to Complainant’s nonselection for the position of Team Lead for Facility Program
Management Specialist, Complainant claimed that he was more qualified than the selectee for
the Team Lead position based on his greater knowledge and experience in maintenance.
Complainant argued that the selecting official, the Division Manager, did not take into account
his current management experience in that he manages the Preventive Maintenance Program
and has managed every program in the Operations and Maintenance contract. Complainant
stated the Division Manager was incorrect when he indicated that Complainant’s management
experience was twenty years ago in the military given he retired from the military in 2001.
Complainant pointed out that he is fourteen years older than the selectee and that in his
opinion, the Team Lead position was created to solely to advance the selectee into
management. Complainant claimed that he was not permitted to act for the manager in his
absence and he was not assigned special projects to advance his career. Complainant
contended that his career had gone downhill since he complained in Focus about the hiring of
the selectee in 2008 and that the selectee has had preferential treatment in his unit since he
started the job.

The Division Manager stated that he was seeking someone in the Team Lead position who was
a self-starter and team builder that could assist in leading the organization into a cohesive unit.
The Division Manager regarded Complainant’s interview as relatively average. According to
the Division Manager, the selectee’s management experience was more recent and relevant
than that of Complainant because he had been working as a Physical Plant Director for a large
hospital. The Division Manager maintained that Complainant’s interview responses tended to
lack innovation and indicated he was satisfied with AMP-300 continuing to do business as
usual. The Division Manager stated that he explained to Complainant that he was seeking a
person with initiative to utilize Lean Six Sigma methodology and standards for quality
management systems. According to the Division Manager, Complainant has not taken
advantage of this training and has not shown interest in learning the quality management
systems programs. The Division Manager asserted that the selectee is certified in Lean Six
Sigma and has been deeply involved in the standards for quality management systems. One of
Complainant’s coworkers who was also a candidate for the position stated that everybody who
interviewed knew that the selectee would be chosen.

As for management and coworkers discussing Complainant’s well-being, Complainant
contended that he was being retaliated against for reporting his coworkers for time and
attendance fraud. The Division Manager stated that in April and May 2012, the Team Lead
and other employees informed him of concerns they had about Complainant’s well-being and
stability. The Division Manager stated that he was told Complainant’s actions had been
disruptive and were creating an acidic work environment. The Team Lead asserted that he
observed a change in Complainant’s personality as he had become reserved and removed
himself from personal contact. The Team Lead stated that when he was still one of
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Complainant’s coworkers, a meeting occurred where several employees asked the Union
President for assistance with a perceived threat to their safety from Complainant. The Agency
stated that Complainant was subsequently made aware of the Employee Assistance Program
and he utilized the counseling. One of Complainant’s coworkers stated that he attended the
aforementioned meeting and some who were present had fears about how Complainant was
acting. He stated that he did not consider Complainant a threat but that the Union
Representative talked with Complainant.

The Agency dismissed claims (1-4) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds
that Complainant failed to initiate contact with an EEO Counselor in a timely manner. The
Agency stated that Complainant first contacted an EEO Counselor on September 11, 2012, and
that the relevant incidents occurred on or in March 2010, May 12, 2011, October 2011 and
April 2012. The Agency determined that Complainant’s EEO contact occurred after the
expiration of the 45-day limitation period.

With respect to claim (5) concerning the nonselection for the Team Lead position, the Agency
stated that Complainant failed to set forth a prima facie case of reprisal. The Agency asserted
there is no record of Complainant engaging in prior protected activity before his contact of an
EEO Counselor on September 11, 2012. The Agency stated that Complainant’s comments in
October 2008 in Focus did not constitute anti-discrimination activity. The Agency pointed out
that Complainant was complaining that the hiring of the eventual Team Lead at an upper pay
level was a misuse of the Core Compensation policy.

The Agency determined that Complainant established a prima facie case of age discrimination
as to his nonselection. The Agency determined that its aforementioned reasons as to why the
selectee was favored over Complainant constituted legitimate, nondiscriminatory reasons for
the selection. The Agency noted that Complainant attempted to establish pretext by arguing
that the selectee was preselected and that he is fourteen years younger than Complainant.
Complainant claimed that his work experience was accorded insufficient weight and that his
assignment in Trouble Calls precluded him from pursuing Lean Sigma Six training. The
Agency determined that Complainant failed to prove that his credentials were observably
superior to those of the selectee. The Agency further stated that a demonstration of
preselection is not a showing of pretext even when a Complainant proves that the promotion
position was newly created especially for the selectee.

With regard to Complainant’s claim of a hostile work environment, the Agency determined
that Complainant failed to establish a prima facie case based on either age or reprisal. The
Agency noted that claims (1-4) were dismissed on the grounds of untimely EEO Counselor
contact and that the nonselection was a discrete event. The Agency focused on the claim
concerning management and his coworkers discussing Complainant’s well-being. The Agency
noted that Complainant thought this occurred because he reported the eventual Team Lead for
time and attendance fraud and because he had criticized the hiring of the same employee. The
Agency stated that neither activity constituted protected EEO activity by Complainant. The
Agency further stated that the discussion concerning Complainant’s well-being and stability
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was not severe or pervasive and did not interfere with Complainant’s ability to do his job. The
Agency reasoned that informing Complainant of the Employee Assistance Program was
intended to help him and his coworkers continue to do their jobs safely and efficiently.

CONTENTIONS ON APPEAL

On appeal, Complainant contends as to claim (1) that he received no cash award in 2010 but
that the three other members of the Technical Evaluation Team received $1,500, $2,000 and
$1,500, respectively, for work performed on the Technical Evaluation Team. In support of his
position that he was told he would never receive anything from the organization again,
Complainant states that in 2011, 2012 and 2013, he only received an organization success
increase which is what everyone in the Agency received. With respect to the claim concerning
the eventual Team Lead’s “hot wiener” remark, Complainant points to a coworker’s statement
that the Assistant Division Manager also mocked Complainant and everybody but the select
few people in his clique. Complainant argues this indicates the preference that was given to
the individual who uttered the “hot wiener” comment and the harassing environment he was
subjected to by the Division Manager and Assistant Division Manager.

With regard to his removal from the OCAT contract, Complainant states there is no
documentation to show that he had any performance issues or inappropriate actions/behavior
concerning the contract. Complainant maintains that his removal from the contract was in
response to a grievance he filed for being passed over for overtime opportunities on the OCAT
contract. As to his treatment after reporting two employees for time and attendance fraud,
Complainant maintains that an Assistant Program Manager and not one of the employees he
reported told him that one of the employees Complainant reported had told him that
Complainant is a backstabber and troublemaker. According to Complainant, the Division
Manager must have told the two employees that he reported them.

As for Complainant’s nonselection for the Team Lead position, Complainant disputes that the
selectee was a Physical Plant Director for a large hospital. Complainant maintains that he
spoke to two individuals who worked at the hospital and that he learned the selectee was the
Director of Maintenance of a division with a very small maintenance program. Complainant
states that like the selectee he has a Bachelor’s Degree. Complainant states that he has 33
years of experience in maintenance with eleven years of that experience being with the
Agency’s AMP-300. Complainant argues that the selectee only had experience in the Support
Work Order program.

With respect to management and his coworkers discussing his well-being, Complainant states
that if the Division Manager was so concerned about his well-being, he should have talked to
him. Complainant states that the Union President contacted him and said it appears the
Division Manager is seeking a way to terminate him because everyone was worried he might
do something to harm his coworkers. Complainant points out that the Union President
commented about the work environment that others in the AMP Division besides Complainant
had come to the Union to voice their displeasure with AMP’s management style. According to
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the Union President, due to fear of being typecast, they usually did not go on the record, but
Complainant was willing to confront management. Complainant references a statement by the
Assistant Division Manager where he stated that AMP-1 and AMP-300 have a dislike for
Complainant as an employee who through years of complaining threatens to go to the Union on
any issue.

ANALYSIS AND FINDINGS

With regard to claims (1-4) that were dismissed by the Agency on the grounds of untimely
EEO Counselor contact, the record reflects that Complainant initiated contact with an EEO
Counselor on September 11, 2012. The relevant incidents referenced in claims (1-4) occurred
on or in March 2010, May 12, 2011, October 2011 and April 2012. Complainant’s EEO
Counselor contact was therefore after the expiration of the 45-day limitation period.
Complainant has not submitted adequate justification for an extension of the 45-day limitation
period. We therefore AFFIRM the dismissal of these claims individually but will consider
them to the extent they are connected with the hostile environment claim.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a
nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

With regard to Complainant’s nonselection for the Team Lead position, we find that
Complainant has set forth a prima facie case of age discrimination but has failed to establish a
prima facie case of reprisal. Complainant has not indicated that he pursued any discrimination
claims in his union grievances, his comments in the Focus publication did not address
discrimination issues, and overall there is no evidence that Complainant engaged in protected
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EEO activity prior to this nonselection. With respect to the Agency’s explanation for its
selection, the Division Manager stated that Complainant’s interview responses tended to lack
innovation and indicated he was satisfied with AMP-300 continuing to do business as usual.
The Division Manager stated that he explained to Complainant that he was seeking a person
with initiative to utilize Lean Six Sigma methodology and standards for quality management
systems. According to the Division Manager, Complainant has not taken advantage of this
training and has not shown interest in learning the quality management systems programs. The
Division Manager asserted that the selectee is certified in Lean Six Sigma and has been deeply
involved in the standards for quality management systems. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its selection.

Complainant may be able to establish pretext with a showing that his qualifications were
plainly superior to those of the selectee. Wasser v. Department of Labor, EEOC Request No.
05940058 (November 2, 1995); Bauer v. Bailar, 647. F.2d 1037, 1048 (10th Cir. 1981). Other
indicators of pretext include discriminatory statements or past personal treatment attributable to
those responsible for the personnel action that led to the filing of the complaint, comparative or
statistical data revealing differences in treatment across various protected group lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Complainant
v. Unied States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

Complainant claimed that his qualifications were plainly superior to those of the selectee in that
he had more years of experience than the selectee. Agencies have broad discretion to choose
among equally qualified candidates as long as the selection is not based on unlawful
considerations. Complainant v. Department of Homeland Security, EEOC Appeal No.
0120141478 (July 31, 2015). They may select candidates with fewer years of experience if
they believe that such candidates are best qualified to meet the needs of the organization. See
Complainant v. Department of Justice, EEOC Appeal No. 0120131151 (February 25, 2015).
They may even preselect a candidate as long as the preselection is not premised upon a
prohibited basis. See Complainant v. Department of Homeland Security, EEOC Appeal No.
0120132858 (March 9, 2015).

Upon review of the record, we find that Complainant has not established that his qualifications
for the position at issue were clearly superior to those of the selectee. The selecting official
asserted that the selectee performed better during his interview than the Complainant, had
more relevant management experience, had training in important programs, and that dictated
the choice of the selectee. Complainant has not shown any disparities in the qualifications
between him and the selectee that were of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the selectee over Complainant
for the job in question.” Hardwick v. Equal Employment Opportunity Commission, EEOC
Appeal No. 0120110520 (July 15, 2013), citing Ash v. Tyson Foods, Inc., cert denied 549
U.S. 1181 (2007). While it does appear likely that the selectee was expected to be chosen for
the Team Lead position and may in fact have been preselected, we discern no persuasive
evidence that age was a factor in the Agency’s selection process. We find that Complainant
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has not presented sufficient argument or evidence to establish that the Agency’s explanation for
its selection was pretext intended to hide discriminatory motivation.

Complainant claims that he was subjected to harassment by both coworkers and management.
To establish this claim, Complainant must show that: (1) he belongs to a statutorily protected
class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on his statutorily
protected class; (4) the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a
working environment is hostile, factors to consider are the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if
it unreasonably interferes with an employee’s work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance at 6 (March 8, 1994).

An agency is liable for harassment by a coworker or other non-supervisor when it “knows or
should have known of the conduct, unless the Agency can show that it took immediate and
corrective action.” See 29 C.F.R. § 1604.11(d). Whether the Agency’s action is appropriate
depends upon “the severity and persistence of the harassment and the effectiveness of any
initial remedial steps.” Taylor v. Department of the Air Force, EEOC Appeal No. 05920194
(July 8, 1992).

The appropriateness of the Agency’s conduct in response to harassment depends upon “the
particular facts of the case, the severity and persistence of the harassment, and the
effectiveness of any initial remedial steps.” Owens v. Department of Transportation, EEOC
Appeal No. 05940824 (September 5, 1996). Appropriate corrective action is a response that is
reasonably calculated to stop the harassment. When an agency becomes aware of alleged
harassment, it has a duty to investigate such charges promptly and thoroughly. See Rodriguez
v. Department of Veterans Affairs, EEOC Appeal No. 01953850 (August 29, 1996).

Upon consideration of the incident involving management and Complainant’s coworkers
discussing Complainant’s well-being as well as the remaining matters that were not discrete
actions, i.e., the “hot wieners” remark and the statement that Complainant is a backstabber
and troublemaker, we find that these incidents were not of sufficient severity or pervasiveness
to constitute a hostile work environment. Moreover, Complainant had no history of EEO
activity with the Agency before the “hot wieners” and backstabber/troublemaker comments.
The record indicates that Complainant actively complained about issues in the workplace but he
did not previously pursue actions in an anti-discrimination context. We also observe no
evidence to suggest that these comments were made based on Complainant’s age. Although
the discussions concerning Complainant’s well-being and stability occurred after his EEO
contact, as we stated, this activity was not sufficient to constitute a hostile work environment.
Further, Complainant did not refute the Agency’s explanation that the discussions occurred
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because a perceived change in Complainant’s personality caused a number of employees to be
concerned about his well-being and stability and any possible adverse effect on them.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

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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

November 1, 2016
Date