0120160983
09-13-2018
Nathanial E.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathanial E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160983
Agency No. 4B006001115
DECISION
On January 5, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 11, 2015, final decision 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. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD).
ISSUE PRESENTED
Whether Complainant established that he was discriminated against based on retaliation (prior EEO activity) when he was allegedly subjected to a hostile work environment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales, Services/Distribution Associate, PS-D6 at the Agency's Punta Santiago Post Office facility in Punta Santiago, Puerto Rico. According to the record, there was a history of acrimony in the Post Office facility between Complainant and the Postmaster dating back to at least 1992. There have been eight (8) formal complaints filed by Complainant including the instant complaint. On March 4, 2015, Complainant filed the instant EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1) On August 4, 2014, he was suspended;
2) On August 25, 2014, his leave was deducted 429 hours;
3) On September 26, 2014, the Postmaster tried to hit him with her vehicle;
4) On October 13, 2014, he was not paid overtime for hours worked on a holiday;
5) On November 5, 2014, he was not paid for 9 units of overtime;
6) On December 24, 2014, he was subjected to a pre-disciplinary interview (PDI);
7) On January 8, 2015, he was not paid 3 hours of bereavement leave;
8) On February 10, 2015, he was not paid sick leave;
9) On various occasions such as on October 29, 2014, January 29, 2015, March 4, 2015, April 1, 2015 and April 4, 2015, the Postmaster pointed her finger at him, refused to let him speak to the Human Resource Manager, took pictures of him with her cell phone, called him names and was rude to his customers;
10) He was denied higher level pay on several occasions, for instance August 11, 2014 through September 17, 2014, and again on various dates in January, March and April of 2015;
11) On September 17, 2014, he was charged with sick leave even though he worked that day;
12) On January 30, 2015 mail from his personal Post Office Box was missing, it was later found in a bag to be returned to sender;
13) On February 10, 2015, he was given a PDI and denied a break;
14) On April 2, 2015, the Postmaster challenged him to a fist fight; and
15) On April 10, 2015, he was denied a reasonable accommodation when he was ordered to stop eating, as a result he had to use 16 hours of sick leave because his blood sugar was lowered.
1) Suspension of Complainant on August 4, 2014
The record indicates that the Postmaster gave Complainant an "Emergency Suspension Letter" on August 4, 2014, suspending him for 5 hours and 20 minutes and instructing him to return the following day with a medical certificate. Complainant stated that he asked why he needed a note when he was not sick, and the Postmaster replied, "because I want one." Complainant alleged that this request was made because he was about to engage in EEO activity by attending a prehearing teleconference. The Postmaster stated, however, that when she told Complainant that he needed to improve his job performance, he became insubordinate and disrespectful to her and his co-worker.
The record contains a letter, dated August 4, 2014, from the Postmaster to Complainant, placing him on Emergency Suspension for being disrespectful to her and his co-worker until the next day at 7:50 a.m., at which time he was to bring a medical certificate to the Postmaster medically clearing him to work.
Complainant states that he was out of work for two and a half days until he was called and told he could return to work without bringing a medical note. He states, however, that he was compensated for time missed. The record contains emails between the Postmaster and the Manager of Labor Relations dated August 4 - 6, 2014, discussing the off-duty placement of Complainant which included a draft of the letter that would be given to him. Complainant was paid eight hours of work for August 4, 2014, and was also paid for 40 hours of work that week rather than being charged LWOP.
2) On August 25, 2014, Complainant's leave was deducted 429 hours
Complainant stated that he "had money missing out of his paycheck every month ranging from a few dollars to almost $400, and the Postmaster would state that it was a glitch in the system or that he owed her time, but would never explain why." The record shows that 238.79 hours were lost sometime in 2013. The record showed that Complainant had a prior claim of Continuation of Pay (COP) denied; therefore, numerous hours of COP were converted to LWOP unless Complainant chose to convert the hours to some other type of leave.
3) On September 26, 2014, Complainant stated that the Postmaster tried to hit him with her vehicle
Complainant contended that the Postmaster attempted to hit him with her vehicle in the post office parking lot on the morning of September 26, 2014. He claimed that the Postmaster positioned her vehicle so it was in front of him and revved the engine four times and the vehicle lunged towards him stopping about a foot away from smashing his body against a co-worker's car.
The record contained a PS Form 1767, Report of Hazard, Unsafe Condition or Practice, dated December 1, 2014, which contained Complainant's handwritten account that the Postmaster attempted to hit him with her vehicle on September 26, 2014. The record also showed an email from the Post Office Facility Manager dated September 4, 2015, which stated that he spoke with the Manager, Safety who advised him that she had no record of any safety report pertaining to Complainant. The record also contained a report which revealed that Complainant started work at 7:30 a.m. and finished work at 8:37 a.m., after being granted annual leave the remainder of the day.
The Postmaster indicated that this was a false allegation against her and that on this date she parked her car as she normally did on the other side of the building then Complainant's car. A postal police official stated that she investigated the allegation and found conflicting stories and no evidence substantiating the allegation.
4) On October 13, 2014, Complainant was not paid overtime for hours worked on a holiday
Complainant stated that he was instructed to come in on Columbus Day, when the Post Office was closed, to pick up boxes off the floor because of a hurricane prediction, but the Postmaster refused to pay him stating that she did not authorize him to come in. He stated that he believed he was entitled to overtime pay for the hours worked because it was a Federal Holiday. Complainant stated that the Postmaster was ordered to pay him, but kept stating that the system would not allow her to process the pay.
The record contained an email dated October 22, 2014, which confirmed that the Postmaster asked Complainant to secure the Punta Santiago Post Office for an impending storm. The record also contained a report for October 13, 2014, which indicated that Complainant worked 30 minutes from 4:30 to 5:30 p.m. Evidence also showed an email from Payroll that the Postmaster had tried to adjust Complainant's time; however, it did not go through because Complainant had been paid for the hours worked on the holiday, plus he received holiday pay, and he could not receive overtime unless he worked for more than eight hours. Finally, the record contained a report which revealed that Complainant was paid for 30 minutes of work and received eight hours of holiday pay on October 13, 2014.
5) On November 5, 2014, Complainant was not paid for nine (9) units of overtime
Complainant stated that he worked 12 units of overtime, on November 5, 2014, but he clocked in three units late. Complainant stated that the Postmaster told him that she would deduct three units from the overtime, but instead deducted the full 12 units. Complainant claimed the Postmaster stated that it was her station and her rules and she could do what she wants. The record contained a report which revealed that Complainant was clocked-in and was given eight (8) hours of work by his own clock rings on November 5, 2014. The Postmaster indicated that this issue was never discussed with her because no overtime would have been authorized. She further stated that Complainant's prior EEO activity was not a factor in this decision.
6) On December 24, 2014, Complainant was subjected to a "PDI"
Complainant attested that he was given a PDI for "irregular" attendance on December 24, 2015, when he was on approved annual leave. He stated that the Postmaster issued this same PDI to him every time he takes approved leave, even though she approved the leave. Complainant stated that no discipline was issued because of the PDI.
The record contained a PS Form 3971, Request for or Notification of Absence, for December 24, 2014, where Complainant requested eight hours of annual leave. The document had a notation on it which stated that the Postmaster had received the request the same date it was requested. The record contained a report which revealed that Complainant was paid for eight hours of annual leave on December 24, 2014.
The Postmaster stated that Complainant was on unscheduled annual leave on this date, and she left a PS Form 3971 on his desk to be filled out upon his return. She maintained that there was no PDI conducted on this date.
7) On January 8, 2015, Complainant was not paid 3 hours of Bereavement Leave
Complainant stated that the Postmaster approved him for three hours of annual leave on January 8, 2015 to attend his uncle's funeral. However, when Complainant received his paycheck, it reflected three hours of LWOP. Complainant stated that when he questioned the Postmaster about the leave, she stated that the Manager, Post Office Operations, instructed her to enter it as LWOP.
The record showed a PS Form 3971, Request for or Notification of Absence for January 8, 2015, where Complainant requested three hours of Annual Leave on January 8, 2015, and had been approved by the Postmaster. The record also contained a PS Form 3971, Request for or Notification of Absence for January 13, 2015, where Complainant requested three hours of sick leave on January 12, 2015, and had been approved by the Postmaster. The record contained a report which showed that Complainant was charged three hours AWOL on January 8, 2015.
The Postmaster testified that Complainant was not entitled to bereavement leave as per Agency policy because it was only allowed for primary family members. Complainant requested and she approved annual leave; however, when she went to put the leave into the system, Complainant did not have enough annual leave to cover the time. The Postmaster stated that it was explained to Complainant and he did not complain.
8) On February 10, 2015, Complainant was not paid Sick Leave
Complainant claimed that on February 6, 2015, he called in because he was sick and requested sick leave, but the Postmaster put him in the system as AWOL because she was AWOL on the same day and got in trouble for being so. He also stated that he was forced to work alone on January 20, 2015, January 23, 2015, January 26 and 28, 2015; when the Postmaster did not show up for work. Complainant stated that on February 10, 2016, the Postmaster refused to give him a break.
The Postmaster stated that Complainant claimed an injury on duty on this date, but provided no paperwork and would not respond to calls concerning any injury. She stated that on February 10, 2015, she explained to Complainant that as he did not file any paperwork or provide documentation on injury, that this matter would be changed to LWOP.
The record showed email messages dated February 6, 2015, between the Postmaster and the Caribbean District, Health and Resource Management Specialist/eRMS coordinator, which indicated that Complainant had contacted eRMS and requested Injured on Duty (IOD) leave for February 6, 2015, but no notice had been received from Complainant of any injury or medical documentation showing such an injury.
Evidence showed a report which revealed that Complainant was charged with eight hours of LWOP on February 6, 2015. Record evidence also showed a Notice of PDI Meeting scheduled for February 12, 2015, for "Failure to Be Irregular [sic] in Attendance" on February 6, 2015.
9) On October 29, 2014, January 29, 2015, March 4, 2015, April 1, 2015 and April 4, 2015, the Postmaster had pointed her finger at him, refused to let him speak to the Human Resource Manager, took pictures of him with her cell phone, called him names and was rude to his customers.
Complainant stated that, on October 29, 2014, the Postmaster was in her vehicle and pointed and waived her finger at him before she squealed her tires and speed off. Complainant contended that on January 29, 2015, the Postmaster received a call from the EEO specialist in New York, came to Complainant and waved her finger in his face up and down stating "New York, New York, New York." Complainant further stated that on March 4, 2015, he again asked the Postmaster to make an appointment with one of the Managers, as he was instructed that she would need to do. Complainant stated that she responded by stating, "I don't have to do nothing."
Complainant also stated that on April 1, 2015, the Postmaster walked up to him made a hand gesture and called him "Peon, a worthless puny little clerk," and told him "You are nothing here, I am the Postmaster and you are just a puny little clerk."
According to Complainant, on April 2, 2015, as he was returning from his lunch break, a customer came to him and stated that she was turned away by the Postmaster and told to come back when Complainant was back from break. Complainant stated that, on April 6, 2015, numerous customers came in angry because two days earlier on Saturday when he was off, the Postmaster refused to serve them stating the system was down.
Complainant recounted different issues the Postmaster had with customers until April 15, 2015, when she gathered her things and as she was leaving stated, "See you in the next life."
Complainant stated that he believed the Agency violated their own rules and regulations regarding violence in the workplace. He also stated that the Zero Tolerance Policy and Anti-Retaliation laws were violated by allowing the Postmaster to victimize him. He averred that M-1, Manager, Human Resources, was the one to report retaliation too, but he required Complainant to ask the Postmaster if he could talk to him.
The Postmaster denied these allegations and stated that she does not behave in such a manner and that Complainant stated things for his own interests and bullies or lies about things. She maintained that she treats her employees with dignity and respect and Complainant's prior EEO activity was not a factor.
10) Complainant has been denied higher level pay on several occasions, for instance August 11, 2014 through September 17, 2014 and again on various dates in January, March and April of 2015
Complainant averred that he should have been paid as a Level 7 Clerk when he worked alone on: January 20, 2015; January 23, 2015; January 26-28, 2015; March 5, 2015; March 11, 2015; April 8, 2015; April 15, 2015 through May 26, 2015; May 29, 2015; June 2-5, 2015; June 10-11, 2015; and June 17, 2015. He stated that the Postmaster would not show up on days that his male co-worker was off, and he would be required to perform the work of two clerks and a postmaster.
Complainant attested that the other clerk at the Punta Santiago Post Office, was paid at a higher level when the Postmaster did not show up to work. He stated that when he spoke to the Postmaster about the higher-level pay, she responded that she did not think he wanted it.
The Postmaster stated that she did not recall denying any higher-level work and that employees are paid for the work level they perform. She maintained that she had been out of the office, but an Officer-In-Charge, who would be covering, would have decided what employee received higher level. The Postmaster stated that Complainant and his co-worker were treated the same. She also indicated that she was out of the office on some of the alleged dates, and on others she did not recall Complainant performing higher level work, nor did she recall Complainant complaining about higher level compensation.
The record contained a TACS report which revealed that Complainant was paid Level 7 wages on 21 intermittent occasions.
11) On September 17, 2014, he was charged with sick leave even though he worked that day
Complainant testified that, in February 2015, he found two copies of a piece of paper stating that the Postmaster charged him with eight hours of leave for September 17, 2014, when he worked. The record contained an unsigned PS Form 3971, Request for or Notification of Absence for September 17, 2015, where eight hours of sick leave was requested; however, the record also contained a report which revealed that Complainant was paid for eight hours of work for September 17, 2014.
12) On January 30, 2015 mail from his personal Post Office Box was missing, it was later found in a bag to be returned to sender
Complainant stated that on January 30, 2015, mail from his personal Post Office Box went missing. When he asked the Postmaster about the missing mail, he stated that she replied that she did not touch it and to look around, and that perhaps it fell out. He stated that he found the mail in a bag and alleged that the Postmaster moved it because the prior day she answered a call from his EEO Specialist. The Postmaster stated that she had no knowledge of this allegation and did not removed mail from Complainant's box.
13) On February 10, 2015, he was given a PDI and denied a break
Complainant contended that he called in sick on Friday, February 6, 2015, and on that Monday, the Postmaster yelled at him and stated she was putting him on AWOL for February 6, 2015. He stated that on February 10, 2015, the Postmaster refused to give him a break and gave him a PDI for smoking in a non-designated area. Complainant claimed that she would constantly change the smoking area because he was the only smoker. Complainant claimed that the following day he received three PDIs for smoking in a non-designated area, insubordination, and Failure to be in Regular Attendance. He testified that the PDIs did not result in any discipline, but alleges that they are consistent harassment requiring him to answer "bogus" charges.
Record evidence showed a Notice of PDI Meeting scheduled for February 12, 2015, for "Failure to Be Irregular [sic] in Attendance" on February 6, 2015. The record also showed a Notice of PDI Meeting scheduled for February 12, 2015, for "Smoking at the Entrance of PO-Non-Designated Smoking Area" on February 10, 2015, and a Notice of PDI Meeting scheduled for February 12, 2015, for "Smoking at the Entrance of PO-Non-Designated Smoking Area" on February 11, 2015.
Finally, the record showed a Notice of PDI Meeting scheduled for February 12, 2015, for "Insubordination at the workroom floor" on February 11, 2015, and a Notice of PDI Meeting scheduled for February 12, 2015, for "Failure to Be Irregular [sic] in Attendance" on February 11, 2015.
The Postmaster testified that it was not the first-time Complainant had received PDIs for these allegations. She stated that she treats both Complainant and his co-worker equally, but Complainant was consistently bullying the rest of the staff including her. She further stated that she could not recall denying Complainant a break, but that he abuses break periods by smoking 10 - 20 times per day often in non-approved areas.
14) On April 2, 2015, the Postmaster challenged him to a fist fight
Complainant stated that the Postmaster came up to him with her fists raised up boxing the air and kept repeating "Come on, Come on, Kung-Fu, Kung-Fu." Complainant stated that he felt the Postmaster was challenging him to a fist fight and that a customer observed this interaction. Complainant stated that his wife called several officials but nobody would take action because no altercation occurred, and he did not report it to the police as in the past no action was taken. He contended that a safety report was filed, but no investigation was conducted.
The record contained a PS Form 1767, Report of Hazard, Unsafe Condition or Practice, dated April 3, 2015, which stated that the Postmaster challenged Complainant to a fist fight on April 2, 2015. Further, evidence showed an email from M-1, dated September 4, 2015, which stated that he spoke with the Manager, Safety and she indicated that she had no record of any safety report pertaining to Complainant.
The Postmaster stated that she did not recall this event and was unaware of any safety report being filed concerning it. She maintained that this action would not have been based on Complainant's prior EEO activity.
15) On April 10, 2015, Complainant was denied a reasonable accommodation when he was ordered to stop eating.
As a result, he maintained that he had to use 16 hours of Sick Leave because his blood sugar was lowered. Complainant testified that the Postmaster knew he was a diabetic, and that he would occasionally need a snack if he felt his blood sugar was low. However, the day following receiving a call from the EEO specialist, she denied him a snack.
The record contained a report which revealed that Complainant worked eight hours on April 10, 2015, and used 16 hours of sick leave on April 13-14, 2015.
The Postmaster stated that there was no FMLA case or any other medical information given to her as far as she could recall concerning any medical condition. She maintained that Complainant has never notified her of a medical condition that required him to eat in order to control his blood sugar, nor had he ever requested any type of accommodations. She testified that Complainant could have requested a change of schedule or informed her about his medical condition, but instead ignored her when she asked if he had any medical condition that prevented him from working.
At the conclusion of the investigation, 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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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 him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requests a hearing before an Administrative Judge. Complainant contends, among other things, that the Agency's findings are based on "typographical errors and conflicting evidence." He asserts that the evidence in the Agency's FAD is based on incomplete and incorrect information. He also seeks to obtain the surveillance tapes at the Postal facility to demonstrate that the Postmaster tried to kill him, and maintains that he is owed additional payments.
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").
Although Complainant contends that he requested an EEOC Administrative Judge in this case, we find no persuasive evidence that such a request was ever made. Therefore, we will address the Agency's FAD.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, merely for the sake of discussion, that Complainant established a prima facie case of reprisal discrimination, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions with regard to claims 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13, and 15, and that there is no persuasive evidence of pretext.
Harassment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The 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).
With regard to claims 3, 9, and 14, we find that Complainant did not establish that he was subjected to harassment based on a hostile work environment. At the outset, we find no persuasive evidence that claim 3 took place, i.e., that the Postmaster intentionally tried to hit Complainant with her car. Moreover, we find that with respect to claims 9 and 14, even if they occurred as alleged by Complainant, we find no evidence that they were based on his having engaged in prior protected EEO activity.
Finally, regarding claims 1, 2, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 15, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
___9/13/18_______________
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.
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