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

Equal Employment Opportunity Commission

Jan 17, 2020

2019000566 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Haley T.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2019000566 Hearing Nos. 480-2017-00416X & 480-2017-00571X Agency Nos. FS-2016-00624 & FS-2017-00087 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 5, 2018 final order concerning her consolidated 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as an Archeologist, GS-0193-09, at the Agency’s National Forest in San Bernardino, California. On August 19, 2016, Complainant filed an EEO complaint (Agency No. FS-2016-00624 (Complaint 1)), in which she alleged that the Agency discriminated against her on the basis of sex (female) when: 1. On April 26, 2016, Complainant received notice that she would be suspended, effective May 9 through May 15, 2016; and 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. 2019000566 2 2. She was subjected to a hostile work environment as evidence by the following incidents: a. On September 20, 2012, the Forest Archeologist and Tribal Liaison, her Work Leader (WL), and the Public Services Staff Director, her immediate Supervisor (S1), failed to properly recognize Complainant’s efforts in completing the Heritage Target Program; b. On November 12, 2014, S1 yelled at Complainant, stating that she was the worst employee he ever had; c. On January 2 and February 3, 2015, WL made disparaging comments about Complainant’s writing style, required her to submit outlines prior to completing future reports, and used belittling body language towards her during their discussion of the Rattlesnake Trails project; d. On March 3, 2015, WL made the comment, “I thought you were intelligent enough to figure it out for yourself,” in response to Complainant’s request for a clarification; e. On March 15, 2015, WL claimed that Complainant’s poor work performance was the reason that the Office of Historical Preservation (OHP) raised concern with a report that she had submitted; f. On March 16 and 27, 2015, WL accused Complainant of not following instructions; g. On April 30, 2015, WL accused Complainant of neglecting her position responsibilities when she did not respond to his email request for information; h. On July 13, 2015, Complainant learned that WL had failed to discuss with her an issue pertaining to a project that she was responsible for; i. On August 8, 2015, Complainant learned that WL blamed her for a draft report that was not completed on time; j. On September 15, 2015, WL initiated a pre-action interview in an attempt to discredit Complainant’s work product; k. On November 8, 2015, S1 yelled at Complainant and mockingly imitated her apology for being late in completing a filed status check; l. On February 3 and March 9, 2016, during a discussion of Rattlesnake Trails report, WL and S1 insisted that the report’s failures were due to Complainant’s failure to understand management’s instructions for the report; 2019000566 3 m. On March 19, 2016, WL and S1 informed Complainant that she would no longer be allowed to attend meetings pertaining to the Fuels Project; and n. On March 24, 2016, WL accused Complainant of scheduling a field trip to avoid having to attend an office staff meeting. On September 22, 2016, Complainant filed a second EEO complaint (Agency No. FS-2017-00087 (Complaint 2)), in which she alleged that S1 refused to consider all of her accomplishments in issuing her an annual performance appraisal rating of “Fully Successful.” The Agency investigated the two complaints separately and provided Complainant with copies of the investigative reports (IR1 and IR2) as well as notice of her right to request hearings before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. The two complaints were subsequently consolidated. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 18, 2017 motion for summary judgment and issued a decision without a hearing on July 26, 2018. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complaint 1: Incident (1): In a notice of proposed suspension dated February 1, 2016, S1 charged Complainant with failure to follow instructions as supported by three specifications. In the first specification, S1 stated that Complainant failed to follow WL’s instructions to make changes to the final Rattlesnake Trails report. In the second specification, S1 stated that Complainant had made some of the requested changes to the Rattlesnake report but did not make all of them, again in contravention to the direction given to her by WL. In the third specification, S1 stated that Complainant failed to complete the final Rattlesnake report by the assigned deadline, as she was specifically instructed to do by WL. IR1 153-57. WL averred that he had recommended the suspension because Complainant had a long history of not following instructions, and that the issue that generated the suspension was her failure to follow Office of Historic Preservation (OHP) guidelines and her repeated refusal to make the corrections he requested. IR1 123, 137. The Forest Supervisor, Complainant’s second-line Supervisor (S2), averred that in approving the suspension, she consulted with an employee relations representative and confirmed that the suspension was for failure to follow instructions. IR1 149. Incident (2a): Complainant averred that the email sent by S1 did not give sufficient recognition to her efforts in completing the Heritage Target Program. She averred that the email was addressed to all three staff archeologists assigned to the project despite the fact that she did the work. She also averred that S1 gave credit for the project to the WL because management did not think that a woman could do the job. IR1 111. WL responded that S1 had sent an email congratulating the staff on completing the Heritage Target Program. He noted that that Complainant’s role was to enter information into the system but maintained that it was all of the staff’s efforts, including Complainant’s that resulted in the successful completion of the project. IR1 123-24. 2019000566 4 Incident (2b): Complainant claimed that on November 12, 2014, S1 yelled at her and called her the “worst employee he ever had.” She stated that S1 wanted her to sign her performance plan without adding any of the issues that she brought up regarding his understanding of her project requirements and the need to review her duties. She further averred that the interaction became confrontational and at that point, S1 made the statement about her being his worst employee. IR1, 111. S1 averred that he did not remember any issue between him and Complainant on November 12, 2014. He denied that he said anything to the effect about Complainant being his worst employee and that he never raised his voice to her other than during a meeting which took place on November 8, 2015, almost a year later. IR1 139. Incident (2c): Complainant alleged that on January 2 and February 3, 2015, WL made disparaging comments about her writing style, ordered her to submit outlines before completing future reports, and belittled her with body language during a discussion of the Rattlesnake Trails project. She averred that because she was a spatial thinker, outlines were not useful to her, and that when she tried to explain this to WL, he just rolled his eyes in a very dismissive manner during the discussion. IR1 112. WL stated that he gave the same instructions to Complainant as he gave to all the other archeologists on his staff, and that he did not knowingly or intentionally use belittling body language. He also stated that the Regional Heritage Manager was unhappy with the reports Complainant had been submitting, and that he told Complainant to prepare outlines prior to submitting draft reports so that he could review the information and make sure the reports were adequate. IR1 125. Incident (2d): Complainant claimed that when WL wrote up her performance plan, she asked him how it would support the Agency’s national goals, and that she wanted his view of her work so that she would know what his expectations were. She stated that when he made it clear that she did not understand his explanation, she made the comment that he thought she was intelligent enough to figure it out herself. IR1 113. WL acknowledged that he did not make the comment in the way that Complainant had characterized it; rather, he was merely alluding to Complainant being smart enough to understand the issue. He averred that during the meeting to set Complainant’s performance plan, he attempted to explain how each plan element related to the Agency’s national objectives, and that he became frustrated after several attempts to explain that relationship. It was at that point that WL made the comment about Complainant being intelligent enough to understand the relationship between her work and the national objective. IR1 126. Incident (2e): Complainant alleged that on March 15, 2015, WL made a statement to the effect that her poor work performance was the reason that the OHP had raised concern with her report submission. She stated that the transmittal letter sent by WL did not match her project report because the two documents were based on two different sources of information. She averred that it was not her work performance, but rather WL’s lack of communication that caused the problem with her report submission. IR1 113. WL averred that after he had submitted the report in question to the OHP, he had spoken with the Regional Heritage Program Manager (RHPM), who had told him that someone in the OHP had alluded to the report as being the worst that he had ever seen. IR1 126. 2019000566 5 Incident (2f): Complainant claimed that on March 16 and 27, 2015, WL accused her of not following instructions. She averred that S1 had given her a list of fixes that had to be made to a draft report before he went on leave, that she herself had to take three weeks of family leave before WL had returned, and that WL had accused her of not following instructions when he returned because he did not have time to finish reviewing the assignment before she had left. IR1 114. WL responded that he had informed Complainant that the office had received a letter from the State Historic Preservation Office (SHPO) with questions, comments, and requests for clarifications of her report, that he emailed her a copy of the letter along with his own comments and instructions, and that Complainant refused to make the necessary corrections and insisted that the SHPO accept her report as it was written. IR1 127-28. Incident (2g): Complainant averred that on April 30, 2015, WL accused her of neglecting her responsibilities when she failed to respond to an email requesting information concerning two reports. She stated that she was in training during most of that day. IR1 114. WL stated that Complainant was requested to provide copies of her draft reports but failed to do so, and that Complainant had told him that the reports were on the “T-Drive” but that he could not find either of them in that location. IR1 128-29. Incident (2h): Complainant averred that on July 12, 2015, she became aware that WL had failed to discuss an issue with her concerning one of her projects. She averred that S1 gave no reason for not discussing the issue with her and that he could have gotten the answer he was looking for if he had come directly to her. IR1 115. WL responded that he simply spoke with the project manager because he felt that Complaint was being evasive when she was asked specific questions about the status of the project and the report. He averred that he got more direct answers from the project manager than Complainant was providing. IR1 129. Incident (2i): Complainant alleged that on August 8, 2015, she learned that WL had blamed her for a draft report that had not been completed on time. She stated that she had negotiated a new deadline with S1 and that WL just assumed the report was late. IR1 115. According to WL, the due date for the draft report was set at July 22, 2015 so that the final report could be submitted by July 31, 2015. WL further averred that Complainant had sent him an email on July 23, 2015 stating that the report was on the T-drive, but that it did not include the maps. The maps were later completed by a specialist on Sunday July 26, 2015, and WL had to go into the office on that day to review and comment on the draft report and the maps so that Complainant would have enough time to incorporate them into the final report by July 31, 2015. WL also stated that he told Complainant in an email that she was to contact him if she had any questions, but that she did not do so. WL emphasized that it was Complainant’s responsibility to complete the report on time. IR1 129-30. Incident (2j): Complainant claimed that on September 15, 2015, WL initiated a pre-action interview in an attempt to discredit one of her work products. She stated that she was tasked with finding out how roads were to be recorded and that she had done so in accordance with a new national standard, but that WL was not happy with her work and failed to communicate with her as to how the roads were to be recorded. IR1 116. 2019000566 6 WL affirmed that he conducted the interview to find out why Complainant had failed to follow instructions, and that he had been directed to conduct the interview by a representative from the human resources office who informed him that failure to produce an acceptable report constituted an actionable offense. He stated that during the interview, Complainant was not able to articulate why she did not follow directions, and that afterward, Complainant wrote him an email to explain her decision not to follow his instructions. IR1 131. Incident (2k): Complainant averred that on November 8, 2015, S1 yelled at her and mockingly imitated her apology for being late in completing a field status check. She acknowledged that she was late for the check and stated that she returned to the office as soon as she could because her phone had gone dead and the phone-charging cable that she used in her car had malfunctioned. She averred that when she returned to the office and apologized to S1, he yelled at her and mocked her in a high-pitched voice. IR1 116-17. S1 averred that he did not mock or imitate Complainant in the manner that she alleged. He averred that this had been the third time that Complainant was late and that his voice may have been raised because he was worried that something might have happened to her when she failed to check in as instructed. IR1 142. Incident (2l): Complainant averred that on February 3 and March 9, 2016, WL and S1 blamed the problems with the Rattlesnake Trails report on Complainant due to her not understanding WL’s instructions regarding what the report required. She stated that she attempted to follow WL’s instructions to the letter but that WL and S1 said that she misunderstood what they wanted. She further claimed that both S1 and WL were trying to make her look incompetent. IR1 117. According to WL, he and S1 met with Complainant to discuss the letter from the SHPO regarding their comments on the Rattlesnake trails project. WL averred that he had discussed the letter with the Regional Heritage Program Manager and the SHPO representative, who opined that Complainant’s report on Rattlesnake Trails was the worst one that he had ever seen. WL further averred that Complainant never told him which instructions she did not understand. IR1 132. Incident (2m): Complainant claimed that on March 19, 2016, WL and S1 informed her that she would no longer be attending the Fuels Project meeting. She was told that WL would attend the meeting and that he would provide her with instructions upon his return. She stated that as a result of not being allowed to attend the Fuels Project meeting, she did not know what the other team members were doing or what the time frames were. IR1 118. WL averred that he and S1 were both involved in the decision and that they were unhappy with Complainant’s inability to communicate effectively with her work leader and her supervisor regarding the project to which she was assigned. IR1 132-33. S1 averred that WL was following his directions. IR1 144. Incident (2n): Complainant alleged that on March 24, 2016, WL accused her of scheduling a field trip to avoid having to attend a staff meeting. She stated that she and another employee were scheduled to go on the trip because their work schedules had overlapped that day, and that WL made her look irresponsible for no reason. IR1 118. WL averred that he had made the comment in jest and never thought it would be taken seriously until he had received a copy of an email from Complainant complaining about it. IR1 133. 2019000566 7 Complaint 2: Incident (3): Complainant that she should have received a higher appraisal rating than “Fully Successful” in that she had been working above her grade level managing the program work that WL was supposed to be doing. IR2 74. S1 responded that Complainant had a hard time taking direction regarding her priorities and the work that had to be accomplished. He stated that Complainant was more interested in the Heritage Program database than in completing her assigned projects, that Complainant would work extra hours that he did not know about or approve, that Complainant would not communicate with WL, and that when he tried to work with her she would ignore him and continue with whatever she wanted to work on. All of this left little time for S1 and WL to correct the work she did complete. S1 noted that the SHPO returned a report saying that it was one of the worst documents that they had reviewed and that it needed a drastic rewrite in order to be acceptable. He averred that if Complainant had communicated better, there was a good chance that she would have gotten a higher performance appraisal rating. IR2 86-87. ANALYSIS AND FINDINGS Standard of Review The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. Disparate Treatment - Complaint 1, Incident (1) & Complaint 2, Incident (3) To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since Agency management officials articulated legitimate and non-discriminatory reasons for the suspension at issue in Complaint 1 and the “Fully Successful” appraisal rating at issue in Complaint 2. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). 2019000566 8 Regarding the suspension, WL, S1, and S2 all averred that the decision was based upon three documented instances of Complainant's failure to follow WL’s instructions in connection with her preparation of the Rattlesnake Trails report. As to the appraisal rating, S1 averred that Complainant was not given a higher rating that “Fully Successful” because she prioritized the Heritage Program database over her assigned projects in contravention of WL’s instructions. Additionally, S1 cited the SHPO report that needed to be drastically re-written and several communications issues. Thus, S1 stated that Complainant had deficiencies in two performance elements: Teamwork Partnership and Mission Results. To move forward with a hearing, Complainant must now raise a genuine issue of material fact as to whether the explanations given by WL, S1, and S2 are a pretext for discrimination. 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). In other words, Complainant would have to show that a triable issue exists as to whether WL, S1 or S2 was motivated by unlawful considerations of her sex or EEO activity when they suspended her in May 2016 and gave her a “Fully Successful” appraisal rating in September 2016. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). 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. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked why she believed that her sex was a factor in her suspension, Complainant averred that when she received the suspension letter, she realized that WL, S1 and S2 were not taking her explanations seriously and she opined that it was because she is a female. IR1 110. When asked why she believed her sex was a factor in the appraisal rating she received, she reiterated that WL, S1 and S2 discounted the duties she performed in connection with the Heritage Program in that all they thought she was doing was data entry, and that this was sex-based discrimination. She also pointed out that she initiated Complaint 1 in May 2016. IR2 75. Beyond her own bare assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict or undercut the explanations given by WL, S1, and S2, that establish the existence of at least one of the indicators of pretext listed above, or that cause us to question the veracity of WL, S1, or S2 as witnesses. Indeed, affidavits given by WL, S1, and S2 are entirely consistent with one another and the record includes emails and other correspondence demonstrating that Complainant either failed to follow established policy guidance or refused to do so. 2019000566 9 We therefore agree with the AJ that Complainant has not presented sufficient evidence to raise a genuine issue of material fact as to whether WL, S1, or S2 had discriminated against her in connection with her suspension and her performance appraisal rating. Hostile Work Environment - Complaint 1, Incident (2) To merit a hearing on her claim of discriminatory or retaliatory harassment, Complainant must raise a genuine issue of material fact as to whether: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether 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 raise a genuine issue of material fact as to whether the conduct of the management officials named in her complaint conduct was motivated by unlawful considerations of her gender. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for discriminatory or retaliatory harassment be brought before an AJ for a hearing. Here, Complainant asserted that based on her sex, Agency officials subjected her to a hostile work environment. Complainant alleged 14 incidents of what she characterized as sex-based harassment. Construing the evidence in the light most favorable to Complainant, we find that each of those incidents involved nothing more than attempts by WL and S1 to get Complainant to adhere to their instructions and to follow the Agency’s guidelines pertaining to report-writing. WL frequently expressed frustration when Complainant was not doing what he and S1 had asked of her. Assignments, instructions and admonishments generally do not rise to the level of harassment because they are common workplace occurrences that are neither severe nor pervasive enough to engender a hostile work environment. Melodee M. v. Dep’t of Agric., EEOC Appeal No. 0120142984 (Jan. 24, 2017). The Commission therefore finds that the totality of the conduct at issue was insufficiently severe or pervasive to raise a genuine issue of material fact as to whether WL or S1 has subjected her to a hostile work environment. 2019000566 10 Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the evidence in the record raises no genuine issue of material fact as to whether sex-based discriminatory animus played a role in any of the actions by WL or S1. As previously noted, WL and S1 were motivated by frustrations caused by Complainant’s failure or refusal to submit reports that complied with Agency guidelines. The only evidence of sex-based motive put forth by Complainant was her own statement that management treated male archeologists with respect, gave more credence to their opinions while ignoring or discrediting hers, and treated her as if she was incompetent, all because she is a woman. IR1 119. Without corroborative evidence, this assertion amounts to little more than speculation. The Commission therefore concludes, based upon the totality of the circumstances, that Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to whether he was subjected to a hostile work environment because of her sex. As a result, the Commission finds that the AJ’s issuance of a decision on summary judgment was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, 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), 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. 2019000566 11 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 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 January 17, 2020 Date