Kenneth H.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120160581 (E.E.O.C. Dec. 20, 2017)

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

Kenneth H.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120160581

Hearing No. 530-2014-00089X

Agency No. BOP-2013-0117

DECISION

On November 24, 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
October 26, 2015, final order concerning his 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 the Equal Pay Act of 1963, as amended,
29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Sex Offender
Management Program (SOMP) Coordinator, GS-0180-13, with the Agency’s Federal
Correctional Institution (FCI) in Elkton, Ohio.

Complainant began his employment with the Agency in 2005 when he was hired as a GS-0180-
12, step 1, Staff Psychologist. Complainant was promoted to the position of GS-13 Drug Abuse
Program Coordinator within the Psychology Department at FCI Elkton in February 2006. On

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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May 22, 2011, Complainant was transferred to the position of SOMP Coordinator, GS-13, step 6.
While Complainant was selected for this position in May 2011, he did not fully assume the
duties of the position until August 2011.

In April 2011, Complainant served on a selection panel to interview applicants for the position of
Drug Treatment Specialist. Applicant A, a Psychology Department Technician with the Agency,
was one of the applicants. Following the panel interview, Complainant rated Applicant A as
“unacceptable.” The Human Resources Manager (HRM) reviewed the panel interview
assessment with the Human Resources Specialist, who was present during the interview. The
HRM contacted Complainant to discuss the “unacceptable” rating of Applicant A and suggested
Complainant change the rating to “acceptable,” as such a rating would have been more consistent
with the guidelines. Complainant contacted the Associate Warden of Programs (AWP)
regarding this matter. Complainant also contacted the Regional Psychology Treatment Program
Coordinator for the Northeast Region for guidance on this matter. Complainant stated the AWP
contacted him to express his and the Warden’s disapproval of these actions. Complainant did not
change his rating. Applicant A was not selected for the position.

During the relevant time, the Agency also advertised for a SOMP Psychologist position. A
Certificate of Eligibles was issued on January 19, 2011 and Comparative 1 was the only
candidate listed. At the time, Comparative 1 possessed nearly 10 years of experience. Normally
an individual who receives an initial appointment to a position at the Agency is appointed at the
minimum step grade for which the position is classified. The Warden requested to the Chief of
the Staffing and Employment Relations (SERS) in the Bureau’s Central Office in Washington,
D.C. that Comparative 1 be appointed at a level which was above the minimum rate. Such
appointments above the minimum rate are available to superior applicants pursuant to Program
Statement 3000.03, Human Resources Management Manual, Section 338.5. That section states
that appointments above the minimum rate are available as a tool to attract top quality candidates
from outside the government. Under this Program and in order to qualify, an applicant must
have “superior qualifications and who would forfeit income that would justify a salary above the
base pay for the grade;” or would have to meet a special need, meaning they would “have a
unique combination of education and experience that meets a special need of the agency.” Such
an above-minimum pay rate is available only to individuals initially appointed into Federal
government service or upon a break in Federal government service of at least 90 days.

During the relevant time period, Clinical Psychologist positions had become difficult to staff at
the Agency; several positions had remained vacant since 2008. Comparative 1 had previously
worked at FCI Elkton as a Psychologist. She possessed relevant experience for the position at
issue, as she was a Clinical Psychologist and her experience rendered her an excellent candidate.
Comparative 1’s private sector salary at the time she was hired by the Agency was $135,488.04,
which was significantly higher than the minimum hiring rate of a GS-13, Step 1. Comparative 1
refused to accept the position without the salary increase.

In April 2011, a request was made to offer Comparative 1 the position in the SOMP at the GS-
13, step 10 level, at $106,369. The SERS staff approved this request for appointment above the
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minimum rate on April 6, 2011, and the Agency offered Comparative 1 the position at the GS-
13, step 10 level. Comparative 1 entered on duty on May 22, 2011. Comparative 1 resigned
from the Agency on August 8, 2012.

On January 18, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male) and in reprisal for prior protected EEO
activity when:

1. On May 23, 2011, he became aware of a pay disparity between himself and a female
Clinical Psychologist.
2. On September 11, 2011, his request for a retention bonus was not approved.
3. From February 8, 2012, through July 19, 2012, he was subjected to disparate
treatment and harassment in the form of being required to continue supervising a
subordinate that previously accused him of sexual harassment, not being permitted to
perform the duties of Acting Chief, being intimidated and harassed by his immediate
supervisor and the Associate Warden of Programs when he attempted to schedule
meetings with the Warden, being provided inadequate support to address concerns
within his department, being treated with deliberate indifference when he experienced
a family emergency which resulted in the loss of a family member, and the issuance
of a cease and desist letter; and
4. On July 19, 2012, he was issued a 14-day suspension decision letter following an
internal investigation.

On March 7, 2013, the Agency accepted claim (1) for further processing. The Agency dismissed
claims (2) – (4) for untimely EEO Counselor contact. The Agency noted claims (2) and (4) were
discrete acts with the latest incident of alleged discrimination occurring on July 19, 2012.
However, the Agency noted Complainant did not contact an EEO Counselor concerning those
claims until November 2, 2012, which was beyond the applicable time frame.

The Agency noted it afforded Complainant an opportunity to provide clarification as to why he
failed to timely contact an EEO Counselor. The Agency noted Complainant stated that he felt
the pay discrepancy was unfair and he attempted to address it; however, he was not aware that he
was subjected to an equal pay violation until October 25, 2012. Further, Complainant explained
that he attempted to address his concerns via internal Agency channels. Specifically, from June
15, 2012, through October 25, 2012, he utilized the Ombudsman Program to address claims (2) –
(4). However, the Agency noted he stated his concerns were not addressed to his satisfaction.
The Agency noted Complainant stated had he been aware of the outcome of his good faith
efforts, he would have filed an EEO complaint in June. The Agency found Complainant was
aware of the pay disparity as early as May 2011; was aware of the adverse decision concerning
his request for a retention bonus in September 2011; from February through July 2012, he was
aware that he was being subjected to disparate treatment and harassment; and on July 19, 2012,
he was notified of the decision to suspend him for 14 days. The Agency stated Complainant
elected to pursue the matters referenced through the Ombudsman. The Agency noted the record
reflected Complainant was aware of the time frame to initiate EEO contact. The Agency
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concluded that Complainant had not provided a reason sufficient to toll the time in this matter,
and claims (2) – (4) were dismissed for untimely contact with an EEO Counselor.

At the conclusion of the investigation on the accepted issue, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant
requested a hearing. Complainant filed two motions to amend his complaint to include the
following claims: (5) on August 23, 2013 and September 4, 2013, Agency officials failed to
provide a response to his written request for information/clarification to effectively supervise
subordinate staff and manage his department; (6) Agency staff continue to withhold pertinent
information from him and actively circumvent and undermine his supervisory duties, which
affect his ability to effectively manage his department; and (7) on September 2, 2013, he was
required to be on-call for the Labor Day holiday despite not being next in the rotation for holiday
coverage. Additionally, Complainant requested the AJ reinstate the claims previously dismissed
by the Agency (claims (2) – (4)). The Agency objected to Complainant’s motions to amend.

The AJ denied both motions to amend. The AJ found claims (2) – (4) untimely raised with an
EEO Counselor. In addition, the AJ found claims (5) – (7) were not like or related to the original
complaint. Thereafter, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing finding no discrimination.

The Agency subsequently issued a final order on October 26, 2015. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged. The Agency stated it also accepted the AJ’s decisions denying
Complainant’s two motions to amend his complaint. The Agency noted Complainant moved to
add to his complaint three incidents that happened in September 2011 and between February and
July 2012 (claims (2) – (4) above). The Agency noted that Complainant first contacted the EEO
Office in November 2012. Thus, the Agency argued that the AJ correctly denied the motion on
timeliness grounds, and it also noted that the EEO Office had already dismissed these three
claims (claims (2) – (4)) as untimely.

The Agency also argued that the AJ correctly denied Complainant’s request to add three new
claims that were not like or related to his original claim. The Agency noted the claims in
question involved management undermining Complainant’s ability to supervise by withholding
information and also included a claim involving Complainant having to be “on call” over Labor
Day. The Agency claims the AJ correctly decided that the new 2013 claims involving
supervisory authority and scheduling were not like or related to the original 2011 claim involving
disparate pay.

On appeal, Complainant states that his claims are part of a continuing violation and are thus,
timely. He argues that all of the actions share a common theme of discriminatory/retaliatory
animus towards him. Complainant states that all of the Agency’s actions were in retaliation for
his protected opposition to unlawful or discriminatory hiring practices in April 2011.
Complainant claims that his motion to amend contained new allegations that were like the ones
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he previously submitted and illustrated the continuing nature of the Agency’s actions.
Complainant also alleged that any delay in filing was related to the Agency’s actions and should
be tolled. Complainant alleges that the Agency misled him to believe that the reported issues
were being appropriately investigated and addressed. Moreover, Complainant claimed that he
did not suspect discrimination until he received the Regional Director’s letter on October 3,
2012, denying his grievance on the 14-day suspension. Complainant stated that prior to this date,
he believed the actions taken against him were in response to staff who were angry that he had
deviated from the chain of command and “went over their heads” by contacting the regional
office. He stated that after receiving the Regional Director’s response, he began to suspect some
of the difficulties he had been experiencing (i.e. pay disparity, unequal application of conduct
standards, reprisal) extended beyond the institution and were related to sex and in reprisal for his
protected activity.

Complainant argues he established a prima facie case under the Equal Pay Act. Complainant
states that the Agency’s affirmative defense was a pretext for discrimination. Complainant
claims that the Agency’s position that Comparative 1’s qualifications were superior to his is
pretext. Complainant notes that both he and Comparative 1 applied for and were found qualified
for the SOMP Coordinator position. However, he notes that the Agency determined that based
on his education and experience, he had superior qualifications and selected him, instead of
Comparative 1, to be the SOMP Coordinator. Complainant states it was only after not being
selected for the SOMP Coordinator position that Comparative 1 applied and was selected for the
SOMP Psychologist position.

Complainant states he satisfied all the elements of a prima facie case for disparate treatment
based on his sex. Complainant argues that he was similarly situated to Comparative 1.
Complainant states that he and Comparative 1’s positions were management level, non-
bargaining unit, psychology positions within the sex offender treatment program requiring nearly
identical qualifications and performing nearly identical duties. Complainant claims he was
compensated at a lower rate than Comparative 1 during the relevant time. Complainant contends
the Agency’s affirmative defense was pretext. Complainant claims his qualifications were equal
if not superior to Comparative 1. Also, he states there was no evidence that Comparative 1’s
position was hard to fill.

Complainant also alleges that he satisfied all the elements to establish a prima facie case of
reprisal discrimination. Complainant states he contacted the Agency’s Northeast Regional
Office (NERO) on April 12, 2011, and reported to the Psychology Treatment Programs
Coordinator for the NERO, that he was being pressured to rewrite his appraisal to allow for the
hiring of a preferred, but unqualified applicant. Complainant contends that his actions
constituted protected activity through “opposition” of perceived discrimination. Complainant
states the Agency’s actions affecting his pay caused a significant change in his working
conditions and would likely deter others from engaging in protected activity.

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ANALYSIS AND FINDINGS

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”).

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a
complaint or a portion of a complaint that fails to comply with the applicable time limits
contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits
in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the
Agency or the Commission to extend the time limit if the complainant can establish that
Complainant was not aware of the time limit, that Complainant did not know and reasonably
should not have known that the discriminatory matter or personnel action occurred, that despite
due diligence Complainant was prevented by circumstances beyond her control from contacting
the EEO Counselor within the time limit, or for other reasons considered sufficient by the
Agency or Commission.

At the outset, we find the AJ properly dismissed claims (2) – (4) for untimely EEO Counselor
contact. We are not persuaded by Complainant's argument that he did not reasonably suspect
discrimination until October 2012, when he received the Regional Director’s letter responding to
his grievance. We find that Complainant reasonably suspected discrimination or should have
reasonably suspected discrimination at the latest on July 19, 2012. The Agency noted that the
14-day suspension informed Complainant of the 45-day limitations period for initiating EEO
Counselor contact. Complainant does not dispute that he was informed of the relevant time
frame. Moreover, we note that pursuing matters via the Ombudsman and the grievance process
does not toll the time limit for initiating EEO Counselor contact. The Commission has
consistently held that the utilization of agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. U.S. Postal
Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). Further, Complainant has not provided any
evidence to support that the Agency intentionally misled him to miss the deadline for filing.
Therefore, upon review of the record, we find that the AJ's dismissal of the complaint pursuant to
29 C.F.R. §1614.107(a)(2) was appropriate.

Next, we address Complainant’s request to amend his complaint to include claims (5) – (7). We
note Complainant’s original claim involved an alleged pay disparity between Complainant and a
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staff psychologist in 2011. The requested amendments, however, all involve claims or activities
which took place in August and September, 2013. Furthermore, none of the amendments
involve similar claims of a pay disparity. As the new claims were not like or related to the
original claim, we find the AJ properly denied Complainant’s amendment.

Next, we address Complainant’s contention that the Agency violated the EPA. The United
States Supreme Court articulated the requirements for establishing a prima facie case of
discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To
establish a prima facie case of a violation under the EPA, a complainant must show that she or he
received less pay than an individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions within the same establishment.
Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003).

Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the EPA:
(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production of work (also referred to as an incentive or piecework system); or, (4) a
differential based on any factor other than sex. Id.

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir.
1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must
be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of
skill, effort, and responsibility used to measure the equality of jobs are not precisely definable.
Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R.
§1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the
performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of
accountability required in the performance of the job, with emphasis on the importance of the job
obligation.” 29 C.F.R. § 1620.17(a).

Upon review, we find that the difference in pay was justified by a factor other than sex.
Specifically, the Agency offered Comparative 1 an appointment above the minimum rate. This
appointment was based upon her superior qualification, which included years of experience
successfully practicing psychology outside of the Agency and also the fact that Comparative 1’s
private sector salary was significantly higher than the minimum hiring rate of a GS-13, Step 1
and she refused to accept the position minus the salary increase. We find Complainant’s
argument that his qualifications were superior to Comparative 1’s qualifications to be misplaced.
The fact that Complainant and Comparative 1 both applied for and were found qualified for the
SOMP Coordinator position and Complainant was selected does not diminish the Agency’s
determination that Comparative 1 had superior qualifications for the SOMP Psychologist
position at issue in the present complaint.

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Next, we address Complainant’s claims that he was subjected to disparate treatment based on his
sex and in retaliation for his protected EEO activity. Generally, claims of disparate treatment are
examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F.
Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 576 (1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant
retains the burden of persuasion, and it is his obligation to show by a preponderance of the
evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

Upon review, we find Complainant did not establish a prima facie case of retaliation.
Specifically, we find Complainant did not establish that he participated in any prior EEO activity
or engaged in opposition to discrimination. We note that Complainant did not produce any
evidence showing that his actions surrounding his “unacceptable” rating of Applicant A involved
complaining about discrimination. However, even if Complainant had established a prima facie
case of retaliation, we find the Agency articulated legitimate, nondiscriminatory reasons for its
actions.

Regarding Complainant’s claim of pay disparity, we note that at the time Complainant began his
employment with the Agency he was hired as a GS-0180,12, step 1, Staff Psychologist. At that
time, Complainant had recently earned his graduate degree and did not have superior
qualifications when he began working for the Agency. The record does not indicate that
Complainant qualified for the above minimum rate of pay at the time he began working for the
Agency.

Additionally, when Complainant was subsequently assigned in May 2011, to the position SOMP
Coordinator, GS-13, step 6 position, he could not have been considered for an appointment
above the minimum rate, because he was selected for this position as an internal reassignment
from the position of Drug Abuse Program Coordinator, not an initial appointment to government
service.

In lieu of such an appointment above the minimum rate, Complainant indicated in the alternative,
he should have been offered a retention incentive in order to match his salary with that of
Comparative 1. Although the Agency does offer retention incentives in certain limited
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circumstances, it stated Complainant would not have qualified for this additional pay rate.
Agency policy shows that retention incentives are available only, “if the employee’s unusually
high or unique qualifications or the Bureau’s special need for the employee’s service makes it
essential to retain the employee, and the agency determines that the employee would be likely to
leave absent a retention allowance.” The Agency stated the SOMP Coordinator is not typically
eligible for the incentive, because it is traditionally filled by applicants through career
progression, as the full performance level of these positions is GS-13. As such, the Agency
stated it is a sought after position, which typically attracts a broad internal pool of applicants.
The Agency noted that when Complainant applied for the position of SOMP Coordinator, there
were several other applicants on the certificate. Furthermore, the Agency stated in order to be
eligible for the retention incentive, the employee must be considered likely to leave the Agency
absent the pay incentive. The Agency states at no time did Complainant indicate he would leave
the agency if he was not provided the incentive.

Moreover, the Agency stated the only other time the supervisor’s salary is authorized to be
adjusted to match that of his subordinate employee is in the case of a Supervisory Pay
Differential, which is authorized by statute only when a general schedule employee is
supervising a higher paid wage grade employee. The Agency explained the Supervisory Pay
Differential does not apply to situations, such as this, in which both the supervisor and
subordinate employee are professional series general scheduled employees.

Upon review, we find Complainant did not present any evidence that the Agency’s articulated
reasons for its actions was a pretext for discrimination; nor does the record contain any other
persuasive evidence that discriminatory animus played any role in the Agency’s actions. We
find that the AJ’s issuance of a decision without a hearing was proper.

CONCLUSION

Accordingly, the Agency’s final order 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. A party
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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.

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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

December 20, 2017
Date