Janet B.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Feb 15, 2018

0120151126 (E.E.O.C. Feb. 15, 2018)

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

Janet B.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120151126

Agency No. 4E-852-0026-14

DECISION

On February 3, 2015, 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
December 31, 2014, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended (Title VII), 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of
1973, as amended (Rehabilitation Act), 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended (ADEA), 29 U.S.C. § 621 et seq. Our review is de novo.
For the following reasons, the Commission AFFIRMS in part and REVERSES in part the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the
Agency’s Post Office in Bullhead City, Arizona.

On February 18, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency subjected her to a hostile work environment on the bases of her race (Caucasian), sex
(female), disability (physical and mental/obsessive-compulsive disorder and anxiety), age (56)

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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and in reprisal for her prior protected EEO activity under Title VII, the ADEA, and the
Rehabilitation Act. The Agency framed her claims as follows in its final decision:

1. On October 9, 2013, a Supervisor screamed at her about her Family Medical Leave
Act (FMLA) leave slip, denied her FMLA request but later approved it.

2. On October 18, 2013, Complainant was given a fact finding [investigative interview]
on the Edit book and FMLA.

3. On various dates in October 2013, management charged her with unscheduled FMLA
leave without pay (LWOP) instead of sick leave.

4. On October 25 and 28, 2013, Complainant was bypassed for overtime.

5. On November 23, 2013, Complainant was issued a Letter of Warning dated
November 22, 2013.

6. On December 13, 2013, management stated, “I’ll put you through the District’s
Reasonable Accommodation Committee” (DRAC) and, “Put that in your EEO.”

7. On November 14, 2013, Complainant had to use trays and could only use two tubs.

8. On November 14, 2013, management clocked her out at noon on her card but clocked
her out at around 10 a.m. in timekeeping.

9. On an unspecified date, Complainant was denied overtime and worked in the dark.

10. On December 11, 2013, someone took away Complainant’s personal supplies.

Complainant claimed discrimination on the bases of her age, sex, and disability when:

11. On or about January 10, 2014, Complainant was given an instruction sheet and told
she walked deliberately slow.

12. On an unspecified date, Complainant’s medical information was mentioned.

13. On February 13, 2014, Complainant’s need for reading glasses was mocked and she
was told she could not use them on the street.

Complainant claimed discrimination based on her mental disability and reprisal when:

14. From March 13 through March 15, 2014, Complainant was sent to the carrier
academy for new employee training.

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15. On unspecified dates, Complainant was issued discipline.

16. On unspecified dates, Complainant had been subjected to excessive street scrutiny
and management changed her case and route order.

17. On an unspecified date, Complainant was forced to drive back on her day off
(Sunday) and was not paid for eight hours at the overtime rate.

Complainant claimed discrimination based on her age, sex, disability, and reprisal when:

18. On April 14, 2014, Complainant was informed by a coworker that the Supervisor
asked the coworker to write or sign a statement on April 10, 2014, saying that
Complainant was a threat.

19. On an unspecified date and ongoing, Complainant’s Supervisor conducted a street
observation on her but failed to provide her with documentation.

20. On an unspecified date and ongoing, Management gave off Complainant’s mailroom
delivery at Silver Creek as a swing to other employees.

Complainant claimed discrimination based on her disability and reprisal when:

21. On May 1, 2014, Complainant became aware that a hostile work environment
investigation report found no hostile work environment existed.

22. On unspecified dates and ongoing, Complainant had been harassed and offended by
the Manager of Human Resources and others insisting that she attend the District’s
Reasonable Accommodation Committee (DRAC) meetings.

23. Management singled out Complainant when it submitted her name to the DRAC, but
she was never informed of who submitted her name to the DRAC or the reasons
behind it.

24. On unspecified dates and ongoing, Complainant had been harassed by the constant
Employee Assistance Program (EAP) referrals and information offered to her.

Complainant claimed discrimination based on her disability and reprisal when:

25. On July 17 and 18, 2014, management sent her hostile letters scheduling her for a
Fitness-For-Duty Examination on July 31, 2014, and instructing her to stay off
Agency premises until informed otherwise.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
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Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

In its final decision, the Agency determined that Complainant failed to prove that it subjected her
to discrimination as alleged.2 The Agency found that Complainant had prior protected EEO
activity, in that she had filed several previous EEO complaints. With regard to Complainant’s
disabilities, the Agency stated that Complainant has had two shoulder surgeries and has
permanent restrictions. Complainant stated that she has carpal tunnel syndrome of the right
hand, wrist and forearm. Complainant also claimed to have permanent conditions of obsessive
compulsive disorder (OCD) and chronic anxiety with relevant Agency officials being aware of
her disabilities.

According to Complainant, medical documentation provided in January 2014 indicates that she
is restricted to no lifting over 50 pounds, no casing over the shoulder, no overhead lifting of five
pounds and she is to use tubs, not trays. Complainant maintains that she has lost the use of her
right shoulder, cannot perform some manual tasks with her right hand, wrist and forearm because
she has three numb fingers, and she has difficulty in her ability to concentrate, learn, or perform
manual tasks.

With regard to claim (1), Complainant claimed that the Supervisor, Customer Service, screamed
at her about her FMLA sick leave slip, saying to bring in medical documentation, “Just go to any
doctor and get it.” Complainant maintained that she had previously asked if she could get the
documentation on her next visit to her physician and was told she could. Complainant asserted
that the incident caused her to suffer humiliation, embarrassment and tremendous anxiety.

As for claim (2), Complainant stated that the Acting Supervisor issued her an investigative
interview and told her she did not have permission to work on her edit book. Complainant
claimed that she did not need permission because it was part of her job and she was required to
submit the edit book at least once a month. The Agency pointed out that Complainant
maintained that the Supervisor, Customer Service, told her to work on the edit book that week
because she was unable to submit it before it was due.

In terms of claim (3), Complainant stated that she began to be charged with unscheduled FMLA
leave without pay instead of sick leave. The Agency noted that Complainant had 6.16 hours of
sick leave on October 4, 2013; eight hours of sick leave on October 10, 2013; 6.20 hours of leave
without pay on October 30, 2013; and eight hours of leave without pay on October 31, 2013.
With respect to claim (4), Complainant stated that on October 25 and October 28, 2013, another
employee took part of her route on overtime.

2 Initially, the Agency noted that two additional claims not referenced above were previously
dismissed on procedural grounds in a decision of April 8, 2014, and incorporated that dismissal
in the present decision. Since Complainant does not challenge that dismissal on appeal, we will
not address it further herein.
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With regard to the Letter of Warning at issue in claim (5), Complainant was charged with
Violation of Agency Standards of Conduct. Complainant had been told by the Supervisor,
Customer Service not to tub certain mail and to tub other mail and Complainant allegedly
responded by yelling to the union steward across the workroom floor about the Supervisor’s
instruction.

The matter at issue in claim (6) concerned another Supervisor, Customer Service (SCS2)
allegedly telling Complainant “I’ll put you through the District’s Reasonable Accommodation
Committee,” and “Put that in your EEO.” Complainant claimed that the SCS2 kept threatening
her with that statement. Complainant also claimed that management kept threatening to change
her case and she went home sick that day due to anxiety. With regard to claim (7), Complainant
claimed that the Supervisor, Customer Service, instructed her that she was to utilize trays and
was only permitted to use two tubs. Complainant argued that she had instruction sheets from the
SCS2 with conflicting numbers of tub usage. Complainant stated that such micromanagement
caused her humiliation on the workroom floor.

As for claim (8), on the same day as the matter at issue in claim (7), Complainant claimed that
she felt nauseous and her anxiety was raised by her Supervisor’s treatment. Complainant
maintained that she was in and out of the rest room and would periodically resume casing.
According to Complainant, she was instructed to leave at noon and she clocked out at noon, but
management changed her time to 10 a.m. Complainant stated that she was told by the SCS2 that
she had abandoned her route. The Agency stated that Complainant had two hours work, six
hours leave without pay in lieu of sick leave, and .41 union steward time.

With respect to claim (9), Complainant stated that she requested overtime and it was denied
without explanation. Complainant stated that this resulted in her working in the dark. According
to the Agency, Complainant requested overtime on 48 days between January 2, 2014 through
April 30, 2014. The Agency stated that requests were approved for small amounts of overtime
on occasion, approved for auxiliary assistance on occasion, and disapproved on 25 days.

In terms of claim (10), Complainant maintained that personal supplies were taken from her case.
Complainant stated that she reported the missing items to management but no one could assist
her. The Agency noted that Complainant failed to provide supporting evidence of the lost items
and did not submit the claim in a timely fashion, and therefore her claim for personal property
was denied.

With regard to claim (11), Complainant claimed that both Supervisors, Customer Service issued
her an instruction sheet and told her that she walked deliberately slow. Complainant asserted
there is no pace required of a carrier to walk. The Agency stated that the instruction sheet
indicated that Complainant demonstrated no sense of urgency and appeared to be pacing herself
on the street in February 2013 and October 2013. The Agency noted that Complainant claimed
this was due to her hemorrhoids. As for claim (12), Complainant stated that on the date she
received the instruction sheet, the SCS2 mentioned her hemorrhoids in writing and aloud with
others in the room. Complainant asserted that anytime she reports something, management
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dismisses it and makes a joke of the matter. The Agency stated that the instruction sheet
informed Complainant she must provide medical documentation supporting her claim as to why
she could not perform her duties.

With respect to claim (13), Complainant contended that the Supervisor, Customer Service, and
an Acting Supervisor, Customer Service, mocked her need for reading glasses. Complainant
asserted that she received a direct order telling her that she could not use her reading glasses.
Complainant stated that the SCS2 declared that it was wasting time and that she should use only
one pair of glasses. The Agency noted that Complainant’s Individual Training Record based on
observation reflected that Complainant removed sunglasses and then put on reading glasses and
continued to repeat this process, but does not use reading glasses in the office.

In terms of claim (14), Complainant maintained that she was sent to the carrier academy for three
days for new employee training. Complainant argued that she has 26 years of experience with
the Agency and was not provided with a reason as to why she had to attend. Complainant stated
that she was the only city carrier ever to be sent to this training. The Agency stated that
Complainant attended standard training for city letter carriers for three days.

With regard to claim (15), Complainant claimed that she was issued three Letters of Warning,
one of which is the Letter of Warning referenced in claim (5). Complainant stated that no one
else has been issued discipline or given direct orders like she has been given. The Agency stated
that the two Letters of Warning not previously discussed concerned a Letter of Warning dated
March 21, 2014, for not wearing a scanner holster as instructed, and a Letter of Warning for
failing to submit a PS Form 3996 when instructed.

As for claim (16), Complainant claimed that the Supervisor, Customer Service, and the Acting
Supervisor, Customer Service, scrutinized her excessively on the street and at her case since May
2012. Complainant further claimed that these management officials and the Postmaster took
away a piece of equipment thus altering her case on December 20, 2013. Complainant stated
that both Supervisors denied altering her case. Complainant also claimed that on April 3, 2014,
her route order was changed and she was not informed prior to the change. Complainant argued
that management altered her case despite knowing that this action breached an EEO settlement
agreement. According to the Supervisors, the case was not altered but rather consolidated, and
the carrier shelves were never moved.

With respect to claim (17), Complainant argues that she was required to drive back from the
carrier academy on her day off but that she was not paid overtime for the travel day. The
Agency stated that Complainant was paid for five overtime hours that day rather than the eight
hours sought by Complainant. In terms of claim (18), Complainant stated that she was being
targeted by the Acting Supervisor, Customer Service. According to Complainant, a coworker
informed her that the Acting Supervisor, Customer Service, asked her and several others to write
a statement or sign a statement saying Complainant is a threat.

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With regard to claim (19), Complainant asserted that four street observations of her were
conducted in January and February 2014, by the Supervisor, Customer Service, and the Acting
Supervisor, Customer Service. Complainant stated that she asked for copies of their notes but
the Supervisor, Customer Service, told her they did not have to give them to her. The Agency
stated that an Observation Report for January 31, 2014, showed no infractions and an
Observation Report for February 21, 2014, indicated that Complainant was given instruction
about the use of her hazard lights. As for claim (20), Complainant claimed that on various dates,
the Acting Supervisor, Customer Service, gave off the mailroom delivery at Silver Creek as a
swing for other employees, and when asked why by Complainant, told her because she can.

With respect to claim (21), Complainant claimed that she learned that a hostile work
environment report concluded that her claims were unfounded. In terms of claim (22),
Complainant asserted that she was harassed by Human Resources and other officials to attend
DRAC meetings. According to Complainant, she attended the first DRAC meeting but only to
learn who nominated her and why she was nominated. Complainant did not attend subsequent
meetings. According to the Agency, on February 5, 2014, the Supervisor, Customer Service,
sent Complainant a notice that she was scheduled for a DRAC meeting on February 20, 2014,
due to repeated comments she made about her disability. Several other letters were sent to
Complainant for the purpose of requesting medical documentation regarding her limitations,
requesting her presence at a DRAC meeting, or requesting that she participate in the interactive
process through DRAC. Claim (23) concerns Complainant being singled out when her name
was submitted to DRAC and she was not informed of who submitted her name. The Agency
noted that Complainant believed the SCS2 submitted her name but that the other Agency
management officials also singled her out.

With regard to claim (24), Complainant stated that Agency management officials harassed her
when they urged her to use the EAP program. Complainant stated she considered it insulting
since it indicated they thought she was a person in need. According to Complainant, the EAP
program was mentioned every time she was brought into a supervisor’s office.

As for claim (25), Complainant claimed that on July 17, 2014, a Human Resources official sent
her a letter scheduling her for a fitness-for-duty examination on July 31, 2014. A July 18, 2014
letter from the Supervisor, Customer Service also addressed the fitness-for-duty examination.
Complainant stated that the letters instructed her to stay off the Agency premises until further
notice from management, that she was in an off-duty status and that her attendance was
mandatory, and that failure to appear and cooperate could subject her to serious disciplinary
action, including termination of employment. Complainant maintained that she never refused to
provide medical documentation. The Agency stated that the July 18, 2014 letter from the
Supervisor, Customer Service, explained that the reason for the examination was in response to
her observed behaviors in the workplace, her repeated claim of a mental disability, and her
repeated refusal to provide medical documentation with regard to her claimed medical condition.

The Agency determined that Complainant failed to set forth a prima facie case of reprisal as to
claims (1-20). The Agency stated that the temporal proximity was insufficient given that the last
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contact of management officials in Complainant’s most recent prior EEO activity occurred on
March 28, 2013, and the first alleged discriminatory action in the instant complaint occurred in
October 2013. The Agency stated that temporal proximity exists for claims (21-25) since
Complainant contends that the reprisal occurred based on the instant complaint.

As to Complainant’s claim of disability discrimination, the Agency determined that Complainant
has an actual disability within the meaning of the Rehabilitation Act. The Agency stated that it
would assume without deciding that Complainant was substantially limited in the major life
activity of lifting and of performing manual tasks. As to Complainant’s obsessive compulsive
disorder and anxiety, the Agency noted that Complainant’s physician explained that Complainant
tends to get anxious when things are out of normal routine and that she writes down numbers and
counts when passing scan points. Additional documentation has noted that Complainant’s
obsessive compulsive disorder is evidenced by her compulsive checking and hoarding that
interferes with task completion.

The Agency determined that Complainant was clearly qualified for her City Carrier position.
The Agency noted that Complainant acknowledged she could not perform the essential duties of
her position without an accommodation, but that she previously requested an accommodation,
and after six months, parts of her request were granted. However, with regard to the matters at
issue in the instant complaint, the Agency stated that Complainant did not request an
accommodation. The Agency asserted that management was attempting to assist Complainant in
obtaining a reasonable accommodation when she was referred to DRAC. The Agency rejected
Complainant’s claim of disability discrimination noting that Complainant attended one DRAC
meeting and then failed to provide the required medical information, and subsequently refused to
attend further DRAC meetings.

The Agency stated that only claims (3, 4, 5, 8, 9, 14, 15, 17 and 25) independently state a claim
outside the harassment framework. The Agency analyzed these claims separately and
determined that Complainant did not establish a prima facie case of discrimination under the
alleged bases. The Agency stated that the individuals cited by Complainant were not adequate
comparisons as they did not demonstrate similar misconduct, most did not have a medical
condition, and there was nothing in the record to indicate if any of the comparisons requested
overtime, worked any overtime, or were bypassed for overtime.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions in
these claims. With regard to claim (3), the Supervisor, Customer Service, stated that he does not
remember what happened on the dates at issue, but in the past Complainant was charged with
leave without pay because she did not provide the appropriate medical documentation. In terms
of claim (4), the Agency noted that Complainant failed to identify the management official who
bypassed her for overtime. A third Supervisor, Customer Service (SCS3), stated that if he has
any carrier who was in under time, he would assign them any overtime from any carrier so that
overtime would be minimized. With respect to the Letter of Warning at issue in claim (5), the
Supervisor, Customer Service, asserted that he asked Complainant to lower her voice, but she
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refused and continued to yell for the union steward across the workroom floor concerning his
instruction as to how she should be using her tubs when pulling down mail.

As for claim (8), the Supervisor, Customer Service, stated that Complainant became aggravated
and spent two hours in the restroom. The Supervisor stated that Complainant was instructed to
come out of the restroom and that she was clocked out at noon after she left the restroom. The
SCS2 explained that he spoke with Labor Relations on the matter and because Complainant
abandoned her position and never returned to her bid job, he adjusted her end tour to 10:30 a.m.
instead of noon. With respect to claim (9), the Supervisor, Customer Service, stated that he
would approve or deny overtime based on mail volume and past performance. According to the
Supervisor, all carriers are followed a few times per year on their route and that this is used to
develop a base time that their routes take them to deliver. The Supervisor asserted that
Complainant never came close to the times and would request overtime without her route having
expanded or extenuating circumstances that would justify the need for overtime. The Supervisor
denied being aware of Complainant ever working in the dark.

In terms of claim (14), the Postmaster stated that he decided to send Complainant to training due
to her numerous time-wasting practices as reflected in office and street observations and
inspections. The Postmaster asserted that he considered it better for Complainant to receive her
remedial training in a neutral environment given that she claimed the current on-the-job trainer
was involved in creating a hostile work environment for her. As for claim (15), the Supervisor,
Customer Service, stated that he issued the March 21, 2014 Letter of Warning based on
Complainant’s unsatisfactory performance and failure to follow instructions. According to the
Supervisor, the Acting Supervisor, Customer Service, conducted a street inspection and
Complainant was not wearing her scanner and did not have it readily available as instructed. The
other matter cited in the Letter of Warning concerned the Acting Supervisor requesting
Complainant redo a request for overtime four times before Complainant complied with the
request.

With regard to claim (17), the Postmaster stated that both Complainant and a male employee also
sent to training in Phoenix were required to drive back on Sunday March 16, 2014. The
Postmaster noted that Complainant was paid for the allowed time spent to drive from Phoenix to
Bullhead City. According to the Postmaster, the time allowed per the manual is approximately
four hours and Complainant was paid accordingly.

As for claim (25), the Postmaster asserted that he submitted Complainant for a fitness-for-duty
examination based on advice from DRAC. The Postmaster stated that the recommendation was
based on Complainant’s decline in performance, her repeated objection to following
management’s instructions, and her statements that she suffers from disabilities that do not
coincide with what was reviewed in the 2012 DRAC. Additionally, the Postmaster referenced
Complainant’s refusal to provide medical documentation from her physician about her work
restrictions and refusal to attend DRAC after the first meeting as reasons to keep her away from
the workplace until the results of the fitness-for-duty examination. The Supervisor, Customer
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Service, asserted that Complainant had frequently claimed an anxiety issue with no supporting
documentation.

The Agency determined that Complainant failed to establish pretext with regard to these claims.
With regard to claim (3), Complainant stated that she was charged with leave without pay
because management was trying to force her out of her job and this happened to no one else.
The Agency rejected this claim noting that medical documentation must state that she was unable
or incapacitated from work due to her illness and/or her FMLA condition as is required for paid
sick leave. The Agency stated that this documentation was not provided. With respect to claim
(4), Complainant claimed that she was bypassed for overtime in favor of a younger man. The
Agency denied this claim stating that management utilized any carrier in order to minimize
overtime. As for the Letter of Warning at issue in claim (5), Complainant claimed that
management disciplined her and no others. The Agency noted that Complainant claimed no one
else was issued direct orders and management was constantly demeaning her mental disability.
As for being clocked out at 10:00 a.m., Complainant charged that it was only done to her.
However, the Agency pointed out that she did not produce evidence she was on the workroom
floor and that she admitted she went into the restroom and periodically would come back to the
floor to try to resume casing.

Complainant argued as to being denied overtime and working in the dark that she was singled
out for punishment to continue the daily harassment. Complainant stated that the younger male
and female employees had already gone home. As for being sent to the carrier academy,
Complainant maintained that she was the only city carrier ever to be assigned to this training and
that in light of her 26 years of service, it was done to humiliate and embarrass her in order to
force her out. With regard to being required to drive from Phoenix on her off day and not be
paid eight hours at the overtime rate, Complainant claimed that the Postmaster is unhappy with
her EEO settlements, her requests for reasonable accommodation, and the outcome of DRAC.
As for being instructed to remain off duty pending the results of her fitness-for-duty exam,
Complainant contended that it was reprisal and disability discrimination based on the threatening
tone of the letters.

With regard to Complainant’s hostile work environment claim, the Agency determined that
management did not subject her to personal slurs or other denigrating or insulting verbal or
physical conduct related to her protected groups. In terms of the claims that have not been
addressed above, the Agency stated as to claim (1) that although Complainant stated that the
Supervisor, Customer Service, screamed about her FMLA leave slip, and then denied it before
subsequently approving it, the Supervisor denied knowledge of this situation and maintained that
he never screamed at any employee. With respect to claim (2), the SCS3 stated that he did not
recall the fact finding meeting at issue concerning Complainant’s edit book, but that any
employee who works on any type of administrative work other than their regular work must first
ask permission so that the supervisor is aware and then swipe the appropriate TACS code so the
time can be accounted for properly.

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With regard to claim (6), the Agency stated that Complainant threatened management rather than
the SCS2 threatening Complainant. According to the SCS2, Complainant commented “I am
going to put that in my EEO,” after an angry outburst and slamming her fist on the table. As for
claim (7), Complainant being told to use trays and no more than two tubs, the Agency stated that
these instructions were issued by the Supervisor, Customer Service and SCS2, but that
Complainant failed to follow the instructions and instead engaged in time wasting practices by
placing about an inch of mail for each cluster box delivery in each tub. The Agency asserted that
this resulted in Complainant utilizing a large amount of overtime. In terms of claim (10),
Complainant’s missing personal supplies, the Agency stated that a search was undertaken for the
items by three supervisors but they were unable to locate the items. The Agency noted that
Complainant’s claim for the missing items was denied.

With regard to claim (11), Complainant being given an instruction sheet and told she walked
deliberately slow, the Supervisor, Customer Service, and the SCS2 stated that they did not know
of Complainant being issued an instruction sheet concerning walking slowly. As for claim (12),
Complainant’s medical information being mentioned, the SCS2 denied making the alleged
comment. According to the SCS2, Complainant stated that “You probably noticed I am walking
slow today since I have hemorrhoids.” The SCS2 maintained that he did not respond to that
remark. In terms of claim (13), the Supervisor, Customer Service, and the SCS2 stated it was
unsafe and time wasting for Complainant to switch between two sets of glasses at each delivery.

With respect to claim (16), the Supervisor, Customer Service, asserted that the street
observations of Complainant were conducted due to her poor performance and failure to make
standards. The Supervisor stated that Complainant was engaging in many time wasting practices
such as making excessive trips back and forth to unload her vehicle at cluster box stops,
switching sunglasses to eyeglasses at each curbside delivery spot and not wearing her scanner as
instructed. The Supervisor claimed that Complainant was also walking back and forth to her
vehicle to scan parcels and other items and was not following instructions. The Acting
Supervisor, Customer Service, cited the need for street observations in light of Complainant
continuously submitting 3996s estimating an unjustifiable amount of overtime for her route.

As for equipment being removed from Complainant’s case, the Postmaster asserted that the piece
of equipment that was removed was superfluous and class labels were reviewed, consolidated
and reinserted. The Postmaster explained that this was done to make Complainant more efficient
as she had failed to make her office time in office inspections. With respect to the change in
Complainant’s case, the Postmaster maintained that this was done because Complainant had
complained that she was violating her shoulder restrictions due to the amount of mail on her top
shelf. The Postmaster stated that he authorized a line of travel change that resulted in
Complainant having a low mail residential portion of her route as her last shelf.

With regard to claim (18), the Acting Supervisor, Customer Service, stated that a number of
carriers came to her with their concerns for the safety of the workplace when Complainant is on
the workroom floor. The Acting Supervisor asserted that she informed the employees they could
express their concerns in writing but that she did not request the employees provide or sign a
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statement. According to the Postmaster, he received a dozen or so statements from various
employees concerning Complainant, and that some employees believed Complainant posed some
sort of threat.

In terms of claim (19), the Supervisor, Customer Service, reiterated the reasons for conducting
street inspections of Complainant and added that all carriers have street observations conducted
on them at least two to three times per year to evaluate the base time of a route and to eliminate
any time wasting practices. The Supervisor asserted that employees are not entitled to a copy of
a supervisor’s personal notes as the findings are discussed with the carrier. The Acting
Supervisor, Customer Service, stated that she conducted three street observations of Complainant
within a three-week period and that she provided Complainant with a copy of her Observation of
Driving Practices. As for claim (20), the Acting Supervisor explained that she has frequently
pivoted portions of Complainant’s route based on the return time estimates that she submits.
With respect to claim (21), the Manager, Human Resources, stated that she prepared the findings
letter on Complainant’s claim of a hostile work environment. The Manager stated that the
inquiry determined that Complainant’s concerns were not work environment issues but rather
contractual matters for which she was seeking a remedy through the grievance procedure.

As for claim (22), the SCS2 stated that he recommended Complainant to DRAC because she
claimed that management cannot supervise her. According to the SCS2, Complainant mentioned
an inability on her part to work or take instruction. According to the Manager, Human
Resources, DRAC met with Complainant on February 20, 2014, but Complainant did not appear
at the meeting on March 6, 2014. The Manager stated that she called Complainant on April 1,
2014, about appearing at a meeting but Complainant told her she did not appreciate her
demanding that she meet with DRAC. The Manager stated that she told Complainant she was
only calling to see if she was available and that DRAC wanted to continue the interactive process
to see if there was an accommodation that could meet her restrictions. The Manager claimed that
Complainant hung up on her. According to the Manager, Complainant subsequently informed
DRAC in writing that she would not attend meetings that were scheduled in April and May 2014.
The Manager noted that although Complainant did not appear, her union representative did
attend a DRAC meeting on June 27, 2014.

With respect to claim (23), the Agency pointed out that the SCS2 stated that he submitted
Complainant to DRAC and the reasons why he did so. The Agency noted that Complainant
acknowledged that she was subsequently informed as to who submitted her name. In terms of
claim (24), Complainant’s claim that she was harassed by constant EAP referrals, the Supervisor,
Customer Service, stated that during investigations he always asks the employee if they would
like a referral to EAP. The Supervisor asserted that Complainant never reported to him that she
was being harassed by the EAP referrals. The Agency noted that the other management officials
were also named in this claim but that they stated they have no knowledge of this issue.

In addition to determining that Complainant failed to establish that management used slurs,
epithets or promoted stereotypes or engaged in any other discriminatory behavior based on
Complainant’s protected classes, the Agency determined that there is no evidence that the
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conduct at issue was sufficiently severe or pervasive to create a hostile, abusive, or offensive
work environment or unreasonably interfered with Complainant’s work performance.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s harassment has caused her to experience
increased anxiety. Complainant claims that she was exceeding the medical restrictions on her
shoulder, her case remained changed, her route order remained changed and she was also told to
eat lunch early in the day, thus throwing off her patterns and eating schedule. Complainant states
that her fitness-for-duty exam was in part based on remarks from coworkers. Complainant
argues that she has never been a threat or a dangerous employee but several of her coworkers are,
and they have not been sent for evaluation. Complainant maintains that the actions taken against
her in the instant complaint are in retaliation for her May 2012 request for reasonable
accommodation, the subsequent discrimination finding in the EEO complaint she filed,3 and the
settlement that was reached in another prior complaint.

ANALYSIS AND FINDINGS

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). She must generally establish a prima facie case by demonstrating that she 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) she
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists
between her 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, as here, 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

3 The Commission determined that Complainant had been discriminated against when her
request for reasonable accommodation was unnecessarily delayed, when management gave her
instructions not allowing her to engage in certain behaviors they regarded as “time wasting,”
when her Supervisor’s actions in changing Complainant’s routines and singling her out for
harsher treatment showed an insensitivity to her medical condition and caused her significant and
foreseeable anxiety sufficient to constitute a hostile work environment based on her disability
(obsessive compulsive disorder), and when she was subjected to disparate treatment and
retaliatory harassment. EEOC Appeal No. 0120140129 (March 25, 2014). The events in that
complaint occurred between April and December 2012.
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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).

Complainant claims that she was subjected to harassment by management officials. To establish
a claim of harassment Complainant must show that: (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).

Therefore, in order to establish her harassment claim, Complainant must show that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

As noted above, the Agency did not dispute that Complainant is considered a qualified individual
with a disability covered under the Rehabilitation Act. She also has engaged in prior EEO
activity on multiple occasions. We shall assume arguendo that Complainant has set forth a prima
facie case of reprisal. Complainant was 56 years old when the alleged discrimination
commenced and is thus covered under the ADEA. She is also a member of protected groups for
her sex and race. It is also evident that Complainant regarded the alleged actions as unwelcome.
We find that Complainant has established elements (1) and (2) of her claim of harassment.

We observe that the record contains a letter dated December 21, 2006, from Complainant’s
psychologist which states that Complainant has obsessive-compulsive disorder, and that as a
result she tends to get anxious when things are out of normal routine. In a letter dated August
22, 2012, the same therapist stated that Complainant’s disorder results in her continually
checking and rechecking if she completed tasks. The record also contains a Certification of
Health Care Provider For Employee’s Serious Health Condition (Family and Medical Leave Act)
dated December 10, 2012, wherein the therapist wrote that Complainant has functioned well for
over twenty years working for the Agency but she reports that she has been directed to make
changes with which she is struggling. The therapist stated that Complainant developed strategies
to successfully deliver the mail but that someone with obsessive compulsive disorder struggles
with change.

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We find that Complainant has not established a claim of harassment as to the incidents in claims
(1-6), (8-10), (12), (15), (17) and (19-24), as we find that those incidents were not based on any
of Complainant’s statutorily protected classes. We also find that the Agency presented
legitimate, nondiscriminatory reasons for its actions in each of those claims and Complainant
failed to produce evidence to establish that these reasons were pretext intended to hide
discriminatory motivation.

However, we find that as to claims (7), (11), (13), (14), (16), and (18), Complainant has
established that the Agency’s actions were based on her disabilities and that the actions were
severe or pervasive enough to create a hostile work environment.

With regard to claim (7), being told by the Supervisor, Customer Service, to use trays and that
she could only use two tubs, we find that Agency officials were aware of Complainant’s
disability and restrictions involving her shoulder. Complainant was not supposed to use trays
and she used several tubs to keep them from getting too heavy since she had undergone surgeries
on her shoulder. Complainant stated that using trays caused her shoulder to stretch out away
from her body instead of lifting a tub. The Agency explained that this instruction was intended
to correct a time wasting practice. However, we find that the Agency’s instruction to
Complainant to only use two tubs constituted harassment toward Complainant on the basis of her
disability.

With respect to claim (11), this claim involves Complainant receiving an instruction sheet and
being informed that she walked deliberately slow. We note that the Supervisor, Customer
Service, and the SCS2 stated that to their knowledge Complainant was not given an instruction
sheet about walking slowly. However, the record contains an instruction sheet dated January 10,
2014, from the Supervisor, Customer Service, to Complainant that includes remarks such as
Complainant displayed no sense of urgency and appeared to be pacing herself on the street.
Another comment was that Complainant is reminded of her responsibility to make one move into
a mailbox and is not to check her LLV and check and recheck doors and windows. An
additional remark was that Complainant goes in the case seven to eight times before she cases a
flat, that this was observed on several occasions, and that this is to cease immediately. Another
statement was that Complainant is allowed one minute and is instructed to take that one minute
daily to check to make sure she has all her DPS. Complainant is to check the first piece of each
tray and once somewhere in the middle of each tray to confirm she has all her DPS. Claim (13)
concerns Complainant being mocked about her switching from sunglasses to eyeglasses while
delivering her route and her being told by the Supervisor, Customer Service, and the SCS2 not to
wear her eyeglasses on the street. The Agency officials considered Complainant’s routine to be a
time wasting practice. We find that these claims reflect the Agency’s insensitivity toward her
obsessive compulsive disorder and the Agency’s actions constitute harassment against
Complainant based on her disability.

Claim (14) involves Complainant being sent to the carrier academy for new employee training.
This measure was undertaken despite the fact that Complainant had 26 years of experience with
the Agency. Claim (16) involves Complainant being subjected to excessive street scrutiny and
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management changing her case and route order. The record reveals that the Supervisor stated
that the street observations were undertaken because Complainant was engaging in many time
wasting practices such as making excessive trips back and forth to unload her vehicle at cluster
box stops, switching sunglasses to eyeglasses at each curbside delivery spot, and not wearing her
scanner as instructed. The Supervisor claimed that Complainant was also walking back and forth
to her vehicle to scan parcels and other items and was not following instructions. Complainant
claimed as to her case being changed that the piece of equipment that was taken affected her
shoulder level as she is working outside of her restrictions when the section becomes full. Claim
(18) concerns Complainant claiming that she was informed by a coworker that the Acting
Supervisor, Customer Service, had asked the coworker to write or sign a statement saying
Complainant was a threat. We observe that while the Agency interviewed various management
officials concerning this issue, it did not interview the coworker at issue. The record contains a
letter from Complainant’s psychologist dated February 25, 2013, wherein the therapist stated that
he has treated Complainant since 1999 and during that time he has never observed her to be a
danger to herself or others.

It is evident from the record that Agency officials were aware of and/or on notice of
Complainant’s medical conditions. The Agency noted that Complainant has been diagnosed
with obsessive compulsive disorder since at least November 1999. The Postmaster stated that
Complainant had informed her supervisors than she has an anxiety disorder and cannot be given
direction and cannot handle change. The Supervisor, Customer Service, and the SCS2 stated that
they were aware of Complainant’s restrictions concerning use of her shoulder. The Supervisor,
Customer Service, stated that he learned of her shoulder restrictions from the Postmaster when
he began supervising Complainant in September 2012. Agency officials were clearly aware that
changing Complainant’s routines caused her anxiety and exacerbated her obsessive compulsive
disorder. Nevertheless, the Agency micromanaged Complainant’s route and subjected her to
excessive street scrutiny by conducting three street observations within a three-week period and
four observations over a two-month period. Agency officials overwhelmed her with instructions
that were frequently petty, changed her case in a manner that could adversely impact her
shoulder, and unnecessarily humiliated her by sending her to the carrier academy for new
employee training. The Agency also failed to interview the coworker at issue in claim (18) and
thus did not present sufficient evidence to refute Complainant’s contention that the Acting
Supervisor, Customer Service, was seeking to have the coworker write or sign a statement that
Complainant was a threat.

The Agency overlooked the fact that what it considered to be time wasting practices were rather
strategic mechanisms utilized by Complainant to address her obsessive compulsive disorder
while still performing her job. The Agency’s disparagement of the symptoms of Complainant’s
obsessive compulsive disorder and the methods employed by Complainant to deal with her
condition reflect an insensitivity and hostility toward her based on her disability. We find that
Complainant has established in claims (14), (16) and (18) that she was subjected to unlawful
retaliatory harassment and harassment on the basis of disability.

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Finally, as to element (5) of her harassment claim, we find that Complainant has met her burden
of establishing that the Agency was liable for the harassment because the acts were committed
by various Supervisors. An employer is subject to vicarious liability for unlawful harassment if
the harassment was “created by a supervisor with immediate … authority over the
[complainant].” Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisor, EEOC Notice 915.002 (June 18, 1999) (“Vicarious Liability Guidance”), at 4 (citing
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 2270 (1998), and Faragher
v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998)). We do not discern
evidence of harassment based on Complainant’s age, race, or sex but we do find that
Complainant has established that she was subjected to harassment based on disability and
reprisal.

Fitness for Duty Exam

Complainant alleged in claim (25) that she was sent hostile letters scheduling her for a Fitness-
For-Duty Examination on July 31, 2014, and instructing her to stay off Agency premises until
informed otherwise. A fitness for duty examination may be ordered only if it is job-related and
consistent with business necessity. See 29 C.F.R. §§ 1630.13(b), 1630.14(c). This means that the
employer must have a reasonable belief based on objective evidence that an employee will be
unable to perform the essential functions of his or her job or pose a direct threat because of a
medical condition. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (Enforcement Guidance
on Disability-Related Inquiries), No. 915.002 at Q.5, (July 27, 2000). Objective evidence is
reliable information, either directly observed or provided by a credible third party, that an
employee may have or has a medical condition that will interfere with his ability to perform
essential job functions or will result in direct threat. Id. It is the burden of the employer to show
that its disability-related inquiries and requests for medical examination are job-related and
consistent with business necessity. See Cerge v. Dep't of Homeland Sec., EEOC Appeal No.
0120060363 (Oct. 9, 2007).

Here we find that the Agency sent Complainant for the fitness for duty exam based on advice
from the DRAC. The Postmaster stated that the recommendation was based on Complainant’s
decline in performance, her repeated objection to following management’s instructions, and her
statements that she suffers from disabilities that do not coincide with what was reviewed in the
2012 DRAC. Additionally, the Postmaster referenced Complainant’s refusal to provide medical
documentation from her physician about her work restrictions and refusal to attend DRAC after
the first meeting as reasons to keep her away from the workplace until receiving the results of the
fitness-for-duty examination. These reasons are job-related and consistent with business
necessity, and the Agency did not violate the Rehabilitation Act by sending Complainant or
keeping her out of the workplace until she had been to the examination.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM in part as
to the Agency’s final decision as to claims (1-6), (8-10), (12), (15), (17) and (19-25). In
addition, we REVERSE in part the Agency’s final decision and find that the Agency violated the
Rehabilitation Act with respect to incidents in claims (7), (11), (13-14), (16) and (18). This
matter is REMANDED for further processing in accordance with the Order below.

ORDER

The Agency is ordered to take the following remedial action:

1. Within ninety (90) days of the date this decision is issued, the Agency shall determine the
amount of compensatory damages to which Complainant is entitled. Within fifteen (15)
calendar days of the date this decision is issued, the Agency shall give Complainant a
notice of her right to submit objective evidence (pursuant to the guidance given in Carle
v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of
her claim for compensatory damages within forty-five calendar days of the date
Complainant receives the Agency’s notice. Thereafter, the Agency shall process the
claim in accordance with 29 C.F.R. § 1614.110.

2. Within ninety (90) days of the date this decision is issued, the Agency is directed to
conduct at least eight (8) hours of in-person or interactive EEO training for all personnel
currently within its employ who were management officials at its Bullhead City facility
during the period of the incidents encompassed within this complaint. The training shall
address their responsibilities under the Rehabilitation Act, with a special emphasis on
mental disabilities.

3. Within sixty (60) days of the date this decision is issued, the Agency shall also consider
taking disciplinary actions against the responsible management officials. The Agency
shall report its decision. If the Agency decides to take disciplinary action, it shall identify
the action taken. If the Agency decides not to take disciplinary action, it shall set forth
the reasons for its decision not to impose discipline.

The Agency is further directed to submit a report of compliance in digital format as provided in
the statement entitled "Implementation of the Commission's Decision." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)

The Agency is ordered to post at its Bullhead City Post Office copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
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places, including all places where notices to employees are customarily posted. The Agency
shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the Compliance Officer as
directed in the paragraph entitled "Implementation of the Commission's Decision," within 10
calendar days of the expiration of the posting period. The report must be in digital format, and
must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its
compliance report within thirty (30) calendar days of the completion of all ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
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at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

February 15, 2018
Date