0120161760
07-10-2018
Josefina L.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Josefina L.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161760
Agency No. SF-15-0949-SSA
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 April 18, 2016, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUES PRESENTED
The issues presented are whether the Agency properly found that Complainant did not prove she was subjected to harassment and discrimination because of her disability and sex, and whether the Agency should be sanctioned because its Office of General Counsel (OGC) intruded into the EEO process during the investigation.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a District Manager (DM), Level 2, at the Agency's Susanville, California Field Office within the Feather River District. In this position, Complainant managed the Susanville Field Office and performed Operations Supervisory and Technical Expert (TE) duties. Complainant is directly supervised by a male who is the DM Level 1 for the Feather River District. Complainant's second level supervisor (S2) is female and is the Area Director (AD). Complainant's third-level supervisor (S3) is female and is the Deputy Area Director (DAD).
On September 29, 2015, Complainant filed an EEO complaint in which she alleged that S1 harassed and discriminated against her on the bases of sex (female) and disability through several actions from August 2014 until September 29, 2015.
In an investigative statement, Complainant stated that she was diagnosed with ovarian cancer in 2015 and Multiple Sclerosis in 2002, but she no longer has cancer. Complainant further stated that she had no work limitations or restrictions because of her medical conditions, but she provided medical documentation to S1 when she had surgery for cancer. Complainant also stated that she told S1 about her medical conditions, and she believed S2 was aware that she had cancer, but not aware she has Multiple Sclerosis.
Regarding the alleged harassment, Complainant stated that on August 21, 2014, S1 visited her office and tried to intimidate her by sitting at the side of her desk, listing her mistakes, and documenting the conversation on a note pad. She stated that she told S1 that her office did not perform walk-in services, but S1 told her to remove this information from a report that addresses customer services.
Complainant further stated that in October 2014, she received an appraisal rating of 3.0, although S1 previously gave her positive feedback in her mid-term performance appraisal.2 Complainant also stated that on or about April 15, 2015, she became aware that S1 disclosed her Performance Appraisal Communication System (PACS) rating to two employees.
Complainant further stated that on May 22, 2015, S1 blamed her and her office for delays in assisting the Chico Field Office and the Feather River District Office. Complainant stated that her office is the smallest office, lost many employees, and had been open to the public for a limited period of time. She stated that S1 contacted the union and told it that her office was available to assist other offices, but he never told her that the union was contacted.
Complainant further stated that her office was short-staffed on May 22, 2015, and therefore, she worked the front counter because they only had three employees working that day. She stated that a little after 9:00 a.m. that day, S1 messaged her to see if he was available for a telephone meeting, and she replied that her office was short-staffed, and she was working at the front counter. Complainant stated that when S1 asked if she needed help, she responded, "yes." She stated that S1 later informed her that he learned that other offices were also short-staffed after he checked with other offices. Complainant stated that S1 did not contact any other DMs to inquire if they could assist, but he began telling her what her employees were doing. She stated that she then messaged S1 and said: "Please don't tell me what I already know. I figured the other offices were short-staffed because of the three-day weekend. This is why I didn't ask for help thank you."
Complainant further stated that S1 then messaged her and said that he needed to speak with her before 1:00 p.m. because he would leave early. She stated that she was relieved from the front counter at about 1:15 p.m., and thereafter went to lunch.
Complainant stated that S1 subsequently called and asked to speak with her, but he was told she was not in the office. She stated that S1 then told her employee that her Instant Messenger was "on green," instructed the employee to remove her identification card from a computer, and left her a message to call him as soon as she returned. She stated that she called S1 after lunch, but he had already left for the day. Complainant stated that S1 was very upset and told her that leaving her identification in the computer was a security breach, but he never told her that he instructed one of her employees to remove her card.
Complainant stated that on May 29, 2015, she received multiple oral warnings for violating the contract by not locking her workstation when she went to lunch and not reporting her absence on May 27 and 28, 2015. She stated that on May 27, 2015, she told S1 she not available because of a doctor's appointment, and on May 28, 2015, she called into the office but did not call S1's office. She also stated that she received an oral warning for not making herself available to S1 on May 21, 2015 between 9:0 a.m. and 1:00 p.m., although she was working the front counter and assisting customers.
Complainant stated that on May 29, 2015, S1 told her that she should request a reasonable accommodation because it would not be seen as a conduct issue when she was absent. She further stated that on June 1, 2015, S1 asked her office to assist the Modesto Field Office with disability appointments, and requested that she reply by 9:00 a.m. the next day. Complainant stated that she responded to S1's request at 2:51 p.m. on June 1, 2015 with the response, "Not at this time." She further stated that on June 2, 2015, she sent S1 an email at 7:00 a.m., and the AD's Office later asked her to assist with disability claims for the Modesto. She stated that she believed that when she told S1 she could not assist with his request, he characterized her to the ADO as someone who did not want to cooperate.
Complainant further stated that on August 6, 2015, S1 verbally told her that she could come to work at 6:00 a.m. if she needed to do so, although operating office hours were generally from 7:00 a.m. until 5:30 p.m. She stated that this contradicted S1's written email that said that 6:30 a.m. was the earliest reporting time.
Additionally, Complainant stated that at a District telephone meeting, S1 asked attendees to explain professionalism. She stated that following the answers, S1 played a snippet from which he explained that the difference between a professional baseball player and an amateur baseball player is that a professional baseball player says yes, and an amateur baseball player says no. Complainant stated that she thought the snippet implied she was an amateur because she initially said no to assisting Modesto.
S1 stated that on July 24, 2015, he became aware that Complainant had cancer when her husband submitted a Certificate of Health Care Provider, but on September 1, 2015, Complainant informed him that she had been misdiagnosed and did not have ovarian cancer. He further stated that on September 1, 2015, Complainant told him that she has Multiple Sclerosis.
S1 stated that he rated Complainant 3.3 on her performance appraisal because she met five of the six performance elements on which managers are evaluated, and she received an outstanding rating in one element. Specifically, he stated that Complainant received a rating of "Successful Contribution," or 3 out of 5, in the elements of Interpersonal Skills, Demonstrates Job Knowledge, Achieves Business Results, and Manages Performance, and "Outstanding Contribution" or 5 out of 5, in the element of Participation. S1 further stated that on April 23, 2014, he gave Complainant positive mid-year feedback regarding her open level of communication, positive working relationship, resourcefulness to staff, successful learning and applying of new material, and completing her fair share of work. He also stated that he also told Complainant about a few instances in which she planned poorly. Additionally, he stated that he informed Complainant in August 2014 that some of her action items were past due, and she had exhibited a diminished level of responsiveness to routine inquiries.
S1 further stated that he did not recall the specific information released, but he inadvertently and mistakenly released Complainant's appraisal information. He stated that managers are required to share award information with other management personnel so that they can administer awards. S1 stated that he notified the AD's office of his mistake.
S1 stated that on May 22, 2015, he called Complainant's administrative line to speak with Complainant, and one of her employees told him that Complainant was out of the office. He stated that Complainant's computer was in "Green Lync status," which indicated it was active and unlocked, and therefore, he asked the employee to lock Complainant's computer because she was out of the office. S1 stated that he did not call this incident a "security breach," but the Information Systems Security Handbook requires employees to log off or lock workstations when leaving devices unattended. He further stated that about a week later, he told Complainant he instructed an employee to lock her computer. S1 also stated that he left his identification card in a computer while visiting Complainant's office in June 2015.
S1 stated that on May 22, 2015, he notified Complainant that he was trying to reach her to determine if her office could assist the Chico and Feather River offices. He also stated that he "placed [Complainant] on notice" about four items because she was absent from work on May 21, 2015 and failed to report her absence to him by the end of her flexband reporting time; she responded to him on May 22, 2015 in a rude and condescending manner during a time in which he was trying to assist her; on May 25, 2015, she blamed him for causing a security breach by telling him that her employee would not have known about her unlocked computer if it had not been for his actions; on May 22, 2015, Complainant did not follow his instruction to contact him by 1:00 p.m.; and on May 22, 2015, Complainant left her workstation unattended and unlocked.
S1 further stated that Complainant told him that she was dealing with medical issues and medical appointments, and therefore, he told her about the Employee Assistance Program (EAP) and the reasonable accommodation process that are available for employees dealing with medical and non-medical situations.
S1 stated that he used the discussion about baseball players as part of a professional development segment, but the segment was not directed in any way toward Complainant. S1 further stated that he did not believe he micromanaged Complainant as an individual, but he micromanaged office actions and workloads by periodically reviewing actions, workloads, and requesting status or follow-up on outstanding actions. He stated that Complainant daily made assignments without his approval or involvement. S1 also stated that he did not expect Complainant or anyone else to be 100 percent available upon demand, but he asked all his managers to respond to his inquiries within 24 hours.
S1 further stated that on August 6, 2015, he had a verbal discussion with Complainant regarding operating hours, and following the conversation, he emailed her a summary of the conversation and guidance from the Labor Relations Office that said that general operating hours were from 7:00 a.m. to 5:30 p.m. He further stated that he told Complainant that employees assigned opening and closing duties have the opportunity to report earlier or remain later to complete operating duties, and the Labor Relations Office said that opening officials should not need to report before 6:30 a.m. or remain after 6:00 p.m. S1 stated that this conversation occurred because Complainant reported to work outside her regular offices on several occasions, including on April 10, 2015, when she reported to work at 5:10 a.m. He stated that although it was acceptable for Complainant to report infrequently for duty at 6:00 a.m., her regular earliest reporting time is 6:30 a.m.
S1 stated that Complainant is not required to seek his permission to take leave up to 39 hours per week, but he asked her to notify him when she is absent so that he knew whom she delegated as the Officer-in-Charge. S1 stated that he did not instruct Complainant to remove any walk-in information from the report, and he asked her to consider including daily interviewer assignment information in the report, which included walk-in information. He stated that Complainant included this information in the final report she submitted to the AD's Office.
After 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 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). The decision concluded that Complainant failed to prove that the Agency subjected her to unlawful harassment or discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant mainly reiterates the allegations of harassment she raised during the investigation. Additionally, Complainant alleges that Agency counsel assisted S1 by preparing his EEO statement in this case. The Agency does not present any arguments on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Hostile Work Environment
In order to establish a claim of hostile environment 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 class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an environment, 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).
In this case, we find that Complainant did not show that any of the alleged actions occurred because of her sex or disability. In so finding, we note that Complainant acknowledged that S1 was not aware she had Multiple Sclerosis, and learned she had cancer after she was diagnosed with it in 2015. As such, the actions that occurred in 2014 could not have occurred because of Complainant's disability because S1 was not aware she had any disability until 2015. Further, S1 provided legitimate, nondiscriminatory reasons for each of the alleged actions, as recounted in detail above, and we find no evidence that these explanations are pretextual.
Complainant maintains that telling S1 not to tell her what she already knew was not rude and discourteous. However, we find it reasonable that a manager would find Complainant's curt response to management's inquiry about work matters to be inappropriately discourteous. In fact, there is ample evidence that Complainant often responded to disagreements with S1 in a rather caustic manner that escalated, rather diffused situations. See Myron S. v. General Services Administration, EEOC Appeal No. 0120140902 (Sept. 23, 2016). At any rate, Complainant was merely verbally warned about her actions, and there is no evidence these matters were documented in personnel files.
Additionally, we find that the alleged actions are not severe or pervasive enough to constitute a hostile work environment. In so finding, we note that the Commission repeatedly has held that anti-discrimination statutes are not civility codes, and isolated remarks, without more, do not create a discriminatorily hostile workplace. We have also held that not every unpleasant or undesirable incident or action which occurs in the workplace constitutes a Title VII or Rehabilitation Act violation. See Shealey v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120070356 (Apr. 18. 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19. 2009). Consequently, we concur with the Agency's finding that Complainant did not prove she was subjected to unlawful harassment.
Office of General Counsel's (OGC) involvement in the EEO Investigation
Complainant contends that she is "dismayed" to learn that that OGC assisted S1 in preparing his statement during the investigation. The record contains a copy of an email from the Agency's Assistant Regional Counsel within OGC (Counsel) to S1 dated January 4, 2016. In the email, Counsel told S1 it was great to have spoken with him that morning and requested that S1 provide a copy of his affidavit for review. In an email dated January 5, 2016, Counsel informed S1 that he was "the attorney assigned to assist" him with his affidavit for his EEO complaint, and he was working on revisions and should have them for S1 within the next few days. Counsel further directed S1 "not to discuss OGC's involvement in this case with the Investigator in any capacity," and to inform Counsel immediately if the investigator contacted him for other information. Additionally, in an email dated January 7, 2016 to S1, Counsel asked S1 to review OGC's proposed changes and comments about his draft affidavit statements. Counsel also directed S1 "not to cc [Counsel] on the correspondence to the investigator, or otherwise share [Counsel's] involvement in this matter," and to ensure that all his comments were deleted from the final version of his affidavit responses.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 1 � IV.D (Aug. 5, 2015) provides, in relevant part:
Heads of agencies must manage the dual obligations of carrying out fair and impartial investigations of complaints that result in final agency determinations as to whether discrimination has occurred and defending the agency against claims of employment discrimination. Only through the vigilant separation of the investigative and defensive functions can this inherent tension be managed.
Ensuring a clear separation between the agency's EEO complaint program and the agency's defensive function is thus the essential underpinning of a fair and impartial investigation, enhancing the credibility of the EEO office and the integrity of the EEO complaints process.
There must be a firewall between the EEO function and the agency's defensive function. The firewall will ensure that actions taken by the agency to protect itself from legal liability will not negatively influence or affect the agency's process for determining whether discrimination has occurred and, if such discrimination did occur, for remedying it at the earliest stage possible.
Accordingly, we have held that after the EEO process becomes adversarial, i.e., once a request for a hearing is submitted or an appeal is filed with the Commission, an agency's Office of General Counsel or other designated legal representative has a duty to represent the interests of the agency. Tammy S. v. Dep't of Defense, EEOC Appeal No. 0120084008 (June 6, 2014), request for reconsideration denied, EEOC Request No. 0520140438 (June 4, 2015). However, during the informal counseling stage and the investigation into the accepted issues of the complaint, the agency representative should not have a role in shaping the testimony of the witnesses or the evidence gathered by the EEO Investigator. Id.
We note that in Rucker v. Department of the Treasury, EEOC Appeal No. 0120082225 (February 4, 2011), request for reconsideration denied, EEOC Request No. 0520110343 (April 26, 2011), the complainant claimed that the agency's Office of General Counsel had improperly injected itself into the EEO investigation by reviewing and assisting in the development of management affidavits before submission to the EEO investigator. The Commission advised the agency that "it should be careful to avoid even the appearance that it is interfering with the EEO process."
In this case, Agency counsel clearly assisted S1 with his affidavit responses during the investigation by reviewing his draft affidavit responses and provided him with feedback about his responses before S1 submitted his responses to the investigator. Therefore, we find that Agency counsel impermissibly interfered with the investigation.
Sanction
In Royal v. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009), the Commission held that it "has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations." In appropriate circumstances, sanctions are used by the Commission to protect the EEO process.
We note that the Commission uses sanctions to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U. S. Postal Serv., EEOC 07A30133 (June 16, 2005). Moreover, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Roval v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) (the effect on the integrity of the EEO process, and protecting that process, is of "paramount" importance to the "Commission's ability to carry out its charge of eradicating discrimination in the federal sector").
In this case, we determine that OGC's actions undermined the integrity of the EEO process by eroding the necessary separation of the investigative process from the Agency's defensive functions. Further, the evidence indicates that the Agency has a practice of subjecting management witness statements to OGC review during the investigation. For example, in his January 5, 2016, email to S1, Counsel stated that he was assigned to assist him with his affidavit, which indicates that this was an ongoing practice, not merely something that only occurred in this case. Additionally, in Hortencia R. v. Social Security Administration, EEOC Appeal No. 0120150228 (May 3, 2017), the Commission warned the Agency about OGC's improper review and feedback of management officials' statements before submitting them to the investigator. OGC's actions here are clearly indicative of ongoing intrusion by OGC into the investigative stage. Additionally, we note that OGC asked S1 to not disclose its intrusive conduct to the investigator, which reflects an awareness that its actions were inappropriate. As such, we find that sanctions are appropriate in this case.
In Tammy S. v. Dep't of Defense, supra, we held that OGC's encroachment into the investigative stage warranted the sanction of ordering EEO managers and OGC personnel to undergo training on the proper role of OGC in the EEO process. We find that this sanction is also appropriate for this case. In so finding, we determine that OGC's actions did not impact the investigation or the ultimate determination of Complainant's case to such an extent that a more severe sanction is warranted.
CONCLUSION
Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. However, we find that Agency counsel impermissibly encroached upon the investigative stage of the EEO process. Therefore, we REMAND this matter to the Agency for actions consistent with this decision and the ORDER set forth below.
ORDER (C0618)
The Agency is ordered to take the following remedial action within 120 days of the date this decision is issued:
The Agency shall provide at least four (4) hours of in-person training to its EEO management officials and to personnel in its Office of General Counsel regarding their responsibilities concerning EEO case processing and the appropriate role of an Office of General Counsel in the EEO process.
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 supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSIONS DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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.
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 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
July 10, 2018__________________
Date
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.
2 In her rebuttal statement, Complainant clarified that she received a 3.3 rating on her 2014 appraisal.
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