Judie D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2019002481 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judie D.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019002481 Hearing No. 480-2015-00502X Agency No. 200P-0377-2014103752 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated February 12, 2019, finding no discrimination regarding her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Assistant, GS-6, at the Agency’s San Diego, California Veterans Affairs Regional Office, Intake Processing Center. On September 23, 2014, Complainant filed her complaint, which was later amended, alleging harassment and discrimination based on age (over 40), disability (spinal injury), race (African- American), sex (female), and in reprisal for prior EEO activity when:2 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. 2019002481 2 1. In July 2012, her supervisor (S1) assigned her a “19-digit range” and collateral duties that included date-stamping documents from all power of attorneys, and denied her request to rotate assignments as a reasonable accommodation; 2. In late July or early August 2012, S1 denied her request for rotating days off; 3. In August 2012, S1 did not complete his portion of her application for a leadership program until after the deadline; 4. In September 2012, Agency managers told her that she should not bother applying for a Veterans Service Representative position; 5. In October 2012, S1 did not reassign her workload while she attended a hearing before the Veterans Benefits Administration, and was denied assistance upon her return; 6. In October 2012, Agency managers did not reassign her regular duties when she volunteered to assist the “Challenge Team,” resulting in her removal from the Team. She alleges Agency managers also laughed at her and described her as a “complete failure;” 7. In April 2013, S1 did not approve her request for leave to attend her university graduation until one day after the graduation; 8. On January 21, 2014, S1 refused to meet with her to discuss changes that had occurred during her extended leave and instructed her to complete her on-line training; 9. On January 21, 2014, she was assigned to the Non-Rating Team, and when she asked for a different assignment, the request was denied; 10. On May 30, 2014, her request to the Agency interview her coworkers, to validate S1’s intention to terminate her was denied; 11. On August 11, 2014, she was “scolded and accused” for sending a secured email that prevents forwarding, printing, and copying; 12. On August 12, 2014, the Human Resources Director (HRD) inadvertently sent an email to all employees at the facility containing confidential information regarding an EEO fact-finding inquiry; 13. On an unspecified date, S1 and the HRD advised her that if she could not perform her duties she would have to medically retire; 2 Complainant alleged that discrimination in reprisal for prior EEO activity, i.e., filing the instant complaint, concerned only claims 11, 12, and 16 through 19. 2019002481 3 14. On unspecified date(s), S1 did not recognize her accomplishments, despite her exceeding performance standards; 15. On an unspecified date, S1 told her, “We really don’t need you here. We really can do it without you;” 16. On November 25, 2014, she did not receive a monetary award for her annual performance review; 17. On December 12, 2014, “on the same day” that her EEO complaint was accepted for investigation, a fact-finding inquiry was initiated into her conduct; 18. On January 28, 2015, the Agency requested that she provide additional medical information to support her request for anti-glare screens as a reasonable accommodation; and 19. In January 2015, the Agency did not follow its own rules on granting her official time to prepare for her EEO investigation. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 6, 2019, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 2019002481 4 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). The Rehabilitation Act of 1973 prohibits discrimination against qualified disabled individuals. See 29 C.F.R. § 1630. In order to establish that complainant was denied a reasonable accommodation, complainant must show that: (1) he or she is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he or she is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a reasonable accommodation. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, EEOC No. 915.002 (Oct. 17, 2002) (“Enforcement Guidance”). 2019002481 5 Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Complainant indicated that she was diagnosed for anterior cervical spinal fusion in 2008 and underwent spinal fusion surgery in April 2009. This condition was permanent, and Complainant experienced chronic spinal pain. Complainant indicated that she treated her conditions with rest, over the counter pain reliever, stretching and compresses. As a Claims Assistant, Complainant’s essential functions of her job involved processing veterans’ compensation and pension claims by creating files, preparing file transfers, reviewing mail, reviewing documents, preparing letters, scheduling hearings and appointments, processing and inputting data, establishing files, and other administrative work. Regarding claim 1, Complainant claimed that in July 2012, she was assigned to claims of veterans with social security numbers whose last two digits fell between 1 and 19, as oppose to 1 and 10. S1 indicated that he supervised 28 Claims Assistants, including Complainant. He stated that Claims Assistants, including Complainant, handled roughly the same number of the workloads. Complainant acknowledged that the other five Claims Assistants were also assigned to the 19-digit range veterans claims as she was. Regarding claim 2, Complainant indicated that she requested rotating assignments in July or August 2012, but her request was denied because it was already filled, and only limited people could be on rotating days off on any given date. S1 indicated that Complainant never made a request for rotating assignments in July or August 2012. Regarding claim 3, S1 indicated that the leadership program did not solicit for participation during August 2012 time frame as Complainant indicated. Rather, stated S1, Complainant submitted her application for a leadership program on January 8, 2013 (the application due date) and he completed the supervisory evaluation portion on the same day. S1 indicated that he discussed his recommendation (not “highly recommend”) to Complainant and she told him that she would not apply for the program because she did not receive a high recommendation. Regarding claim 4, S1 denied the incident and making the alleged remark. S1 indicated that he had no record that Complainant asked him to review her resume and give her his feedback. Regarding claim 5, S1 denied Complainant’s request to reassign her workload because she was going to be gone for only two days. 2019002481 6 Regarding claim 6, S1 denied laughing at her or saying the alleged remark. Further, he stated that he did not reassign Complainant’s work because assisting the Challenge Team was not a full-time responsibility. It only required 1/4th of Complainant’s time and she could still finish her work assignments. S1 indicated that based on the Challenge Team Trainers recommendation, Complainant was later removed from assisting the Challenge Team because she was not completing her assignments in a timely manner and was not responsive to communicative attempts by members of the Team. Complainant acknowledged that she was removed from the team because three of her team trainers complained about her. The record reflects that on October 30, 2012, the Challenge Team Training Specialist notified Complainant’s management that he had a concern about Complainant’s performance supporting the Team. Specifically, the Specialist indicated that Complainant did not complete tasks assigned to her in a timely manner; she was difficult to reach by phone and unresponsive to emails or instant message communications; and even after notifying these concerns to her, her performance did not improve. Upon receipt of the foregoing notification, the Assistant Veterans Service Center Manager informed his Assistant Coach (AC) to issue a written counseling to Complainant concerning the foregoing performance issues. Accordingly, on November 8, 2012, the AC issued a written counseling to Complainant due to her poor performance while assigned to the Challenge Team, described above. Therein, the AC noted that Complainant needed improvement on one of her performance elements, i.e. Cooperation and Organizational Support. Regarding claim 7, Complainant claimed that S1 did not approve her requested leave for her May 30, 2013 graduation until one day after the graduation. However, the record clearly provides evidence that S1 approved that leave and notified Complainant of such on May 13, 2013. Complainant’s Leave Used Summary record reflects that she used 8 hours annual leave on May 30, 2013. Regarding claim 8, the record indicates that Complainant sustained on-the-job injury on June 19, 2013, and as a result, she was on extended leave under her workers’ compensation claim from June 19, 2013, to January 21, 2014. When she came back to work on January 21, 2014, claimed Complainant, she wanted to have a meeting with S1 to discuss any changes in the workplace during her absence but S1 denied the meeting. S1 indicated that nothing had changed during Complainant’s leave and thus a meeting was not needed. S1 stated that he did however ask her to complete the on-line Talent Management System training to maintain her computer access. Regarding claim 9, S1 indicated that Complainant did not make a request for a different assignment from her non-rating team on January 21, 2014. The record reflects that on January 23, 2014, S1 notified his four Claims Assistants non-rating team, including Complainant, about their non-rating assignments and training and their share of workloads. Complainant was assigned her primary role of “NonRate 50-74.” On the same day, Complainant responded to S1’s foregoing assignment stating that “Thank you for selecting me for this complex and very detailed oriented assignment.” There is no evidence that Complainant informed S1 that the foregoing assignment was beyond her physical restrictions and asked for reasonable accommodations. 2019002481 7 Complainant indicated that she requested accommodation because heavy data processing and data entry of paper files caused inflammation in her back and neck. Complainant acknowledged that as a result of her request, the Agency accommodated her work set up area with a special new chair and movable work station. Complainant did not indicate that the special chair and movable work station did not accommodate her disability effectively. Complainant claimed that another coworker, a younger female, Mexican with disability (unspecified), was allowed to fax and scan her data instead of manually entering it. Complainant indicated that this coworker, also assigned to the non-rating team (assigned to “NonRate 25-49”), was accommodated due to her disability. There is no evidence Complainant requested she be allowed to fax and scan her data to accommodate her disability but was denied. Furthermore, there is no evidence that her data entry by fax and scan would effectively accommodate her disability. Complainant also indicated that two younger, male coworkers were also accommodated. The record however reflects that the subject coworkers were not assigned to the non-rotating team as Complainant was. The record further reflects that on March 7, 2014, the HR Acting Director sent Complainant a letter indicating that the Department of Labor previously approved her workplace injury claim and she was offered a return to her Claims Assistant position. Therein, Complainant was notified that the work was mostly sedentary, not physically challenging; it involved some walking, standing, and carrying of light items such as papers, books, and files from one area to another or for returning claims folders and files to the file bank with the use of a rolling cart; and it included some repetitive activities such as keyboarding and reviewing records by hand, and the work was mostly sedentary. Complainant accepted the position on March 13, 2014. Regarding claim 10, the record indicates that on May 29, 2014, the Assistant Vocational Rehabilitation and Employment Director (AD) was instructed by her director to conduct a fact- finding investigation into Complainant’s alleged hostile work environment claim against S1. Complainant asked the AD that she interview all assigned employees including HR employees to ascertain whether S1 conspired to have Complainant fired. The AD indicated that she informed Complainant that it would be inappropriate to interview entire teams of employees. The AD indicated that she interviewed Complainant, S1, and four other witnesses. After the investigation, the AD submitted her fact-finding assessment concluding that there was no evidence to support Complainant’s allegation of hostile work environment against S1. Regarding claim 11, the AD indicated that she merely requested that Complainant send her emails in response to fact-finding inquiry “unlocked” so that the emails could be forwarded, printed or copied to be included in the official fact-finding file. Complainant acknowledged that she was unaware her emails were secured or locked when sent. 2019002481 8 Regarding claim 12, the HRD acknowledged that she, while assisting the AD for drafting for the fact-finding inquiry, above, inadvertently sent the email concerning the progress of the fact- finding inquiry to union bargaining members in the facility instead of union corporate members. She attempted to recall the message, but some recipients received the message due to the message delivery system. When she realized her mistake, she apologized to Complainant about that. The record reflects that the HRD sent out her August 11, 2014 email recalling her email she inadvertently sent out. Regarding claim 13, the HR Acting Director, in his March 7, 2014 letter, offered Complainant the Claims Assistant position, described in claim 9, above. In that return to work letter, the HR Acting Director merely included a standard language regarding requests for reasonable accommodations in that if Complainant was unable to return to work, she could choose to resign or file for disability retirement. Regarding claim 14, Complainant claimed that S1 did not recognize her accomplishments in her Fiscal Year (FY) 2013 performance appraisal for the period from October 1, 2012 to September 30, 2013. The record indicates that on November 22, 2013, Complainant was issued a Fully Successful overall rating (the ratings, highest to lowest, were Outstanding, Excellent, Fully Successful, Minimally Satisfactory, and Unacceptable) for her FY 2013 appraisal. The record reflects that for FY 2013 performance appraisal, employees were required to meet five critical elements and each element was rated Exceptional, Fully Successful, or Unacceptable. Complainant’s FY 2013 performance appraisal shows that she received Exceptional rating for three critical elements of her performance (quality of work, productivity, and customer service) and Fully Successful for two critical elements (timeliness and cooperation and organizational support). S1 indicated that Complainant’s performance during FY 2013 concerning timeliness and cooperation and organization support was not exceptional. The record shows that on November 8, 2012, Complainant was issued a written counseling concerning her poor performance while assigned to support the Challenge Team, described in claim 6. Regarding claim 15, S1 denied making the remark. In fact, stated S1, he was very happy when Complainant finally returned from her extended leave on January 21, 2014. Regarding claim 16, S1 indicated that monetary award was given to employees who received “Excellent” or “Outstanding” rating for FY 2014. Complainant acknowledged that on November 25, 2014, she received “Fully Successful” rating in her annual review. The record reflects that S1 rated 27 Claims Assistants for FY 2014 and 9 Claims received “Outstanding,” 3 “Excellent,” and 15, including Complainant, “Fully Successful.” We note that Complainant’s FY 2014 performance appraisal is not at issue. Regarding claim 17, the HRD indicated that the facility received three complaints from its employees who alleged that Complainant created a hostile work environment. The Agency thus initiated the fact-finding inquiry concerning the complaints. 2019002481 9 The Vocational Rehabilitation Counselor (VRC) indicated that she was assigned to the subject fact-finding inquiry on November 21, 2014, and at that time, she did not know Complainant or her EEO complaint. The VRC stated that on December 16, 2014, she conducted the fact-finding interview at which time Complainant mentioned about her EEO complaint and that was the first time she learned about Complainant’s EEO complaint. The VRC indicated that she interviewed a number of Claims Assistants and Coach and they described working with Complainant as “toxic, tiresome, relentless, bullying, and belittling/borderline threatening people.” They also indicated to her, stated the VRC, that Complainant placed herself physically in the way so that one “cannot pass her and has to go around her;” she provided them inaccurate work affecting efficiency and productivity of their performance; and she did not follow the chain of command. After the inquiries, the VRC stated that she did not make any specific recommendations for disciplinary or non-disciplinary action for Complainant or any employees rather she recommended management that they should conduct further exploration to determine the best method of resolving the conflict addressed above, including employees’ safety. Regarding claim 18, the record indicates that on January 22, 2015, Complainant requested two anti-glare screens for her computer to help with her headaches and sore eyes to the HRD (who was also assigned as one of the Agency Reasonable Accommodation Coordinators). The record reflects that on January 22, 2015, a HR Specialist/Reasonable Accommodation Coordinator (RAC) sent an email to Complainant acknowledging the receipt of her request. On January 26, 2015, the RAC sent Complainant an email indicating that her office was processing the request. On January 28, 2015, the RAC notified Complainant that since her identified disability was not obvious or otherwise already known to the Agency, the RAC requested her to provide supporting medical documentation for the request by April 28, 2015; and meanwhile, as an interim accommodation, she could come and pick up the requested anti-glare screens. Complainant indicated that “she told [the HRD] that the request for additional medical information was silly and she returned the anti-glare screens.” Regarding claim 19, Complainant claimed that she asked the HRD for 8 hours of authorized leave to prepare for testimony in her complaint but the HRD did not respond. The HRD indicated that on January 14, 2015, she was contacted by the Office of Resolution Management seeking information regarding the reasonable time allowed for an employee to participate in an EEO investigation. On January 16, 2015, the HRD stated that in response, she sent the email concerning the reasonable time information to Complainant, but Complainant could not open the email. She thus re-sent her email to Complainant on January 20, 2015, and also to Complainant’s then supervisor (a new supervisor). The HRD indicated that she did not approve or disapprove Complainant’s leave. The record reflects that on January 29, 2015, Complainant requested to her then supervisor for 8 hours official time/authorized absence and one-hour annual leave for February 5, 2015. The supervisor granted the request on the same day. Complainant acknowledged that she was granted the 8 hours official time she requested. 2019002481 10 Complainant’s Leave Used Summary record reflects that she actually used 8 hours official time/authorized absence (and one-hour annual leave) on February 3, 2015 (instead of February 5, 2015). The same leave record also reflects that Complainant used 3.5 hours of authorized absence on February 5, 2015, and 9 hours on February 13, 2015. The Agency indicated that Complainant’s all official time/authorized absence requests were approved. Based on the foregoing, we find that Complainant failed to show that she was denied a reasonable accommodation. Complainant acknowledged that she was provided with a special chair and movable work station for her disability (back and neck). Despite her claim, it is noted that Complainant was not entitled to an accommodation of her choice, i.e., utilizing fax and scan for her data entry. See 29 C.F.R. § 1630.9; Enforcement Guidance at 9; Lynette B. v. Dep’t. of Justice, EEOC Appeal No. 0720140010 (Dec. 3, 2015). Furthermore, there is no evidence that utilizing fax and scan would effectively accommodation Complainant’s disability nor is there any evidence she actually requested such as accommodation. Regarding Complainant’s request for anti-glare screens, the Agency properly requested supporting medical documentation since it did not have any record of her eye conditions. Complainant failed to provide the requested medical documentation. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant did not establish discriminatory animus or retaliatory intent. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2019002481 11 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2019002481 12 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 August 18, 2020 Date