Petitioner,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 13, 2013

0420120009 (E.E.O.C. Sep. 13, 2013)

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

,
Petitioner,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Petition No. 0420120009

Appeal No. 0120072120

Hearing Nos. 370-2000-02281X, 370-2000-02282X, 370-2002-02336X

Agency Nos. 4F-945-0038-98, 1F-846-0064-98, 1F-946-0048-01

DECISION ON A PETITION FOR ENFORCEMENT

The Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition
for enforcement to examine the enforcement of an Order set forth in v. U.S. Postal
Serv., EEOC Appeal No. 0120072120 (January 6, 2010). Petitioner alleged that the Agency
failed to fully comply with the Commission’s order regarding relief. For the following
reasons, the Commission VACATES the instant matter.

BACKGROUND

Complainant filed several complaints with the Agency regarding: (1) her non-selection for
promotion to the position of Labor Relations Specialist, EAS 17, at the Agency’s Oakland
Processing and Distribution Center, on October 6, 1997; (2) harassment and termination from
her limited duty assignment on June 18, 1998; and (3) harassment and elimination of her
permanent duty job offer on Tour 2 and Complainant was told to report to Mail Processing on
Tour 3. After a hearing, an EEOC Administrative Judge (AJ) issued a decision finding
discrimination on the bases of sex, race, disability, and reprisal and ordered the Agency to
provide Complainant with relief.

In , EEOC Appeal No. 0120072120, Complainant challenged the relief provided by
the Agency. The Commission found that the Agency failed to comply with certain provisions
and that the evidence submitted was inadequate to determine whether the Agency had complied
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with other provisions of its relief order. Accordingly, the Commission ordered the Agency to
take the following actions:

1. Within 60 days of the date this decision becomes final, the Agency shall recalculate and
award Complainant back pay (including base salary, merit increases, incentive pay,
higher level pay, EVA, holiday pay and other awards), consistent with our decision
herein. If there is a dispute regarding the exact amount of back pay the Agency shall
issue a check to Complainant for the undisputed amount within 60 calendar days of the
date the agency determines the amount it believes to be due. Complainant may petition
the Commission for enforcement or clarification of the amount in dispute. The petition
for clarification or enforcement must be filed with the Compliance Officer, at the
address referenced in the statement entitled "Implementation of the Commission's
Decision."

2. Within 60 days of the date this decision becomes final, the Agency shall provide
Complainant with a clear, detailed "plain language" explanation of its back pay
calculations, including the calculations of all benefits provided to complainant. The
Agency shall also provide evidence supporting its calculations, including relevant salary
and award information for El1

and Complainant.
3. Within 60 days of the date this decision becomes final, the Agency shall recalculate and
to the extent it has not already done so, the Agency shall pay Complainant interest on
the back pay award, in accordance with this decision.

4. Within 30 days of the date this decision becomes final, the Agency shall provide
Complainant a detailed explanation of the Form 1099 for tax year 2006.

5. Within 60 days of the date this decision becomes final, the Agency shall determine how
much EAS personal absence time El used during the relevant timeframe and provide a
clear explanation of the nature of the EAS personal absence time used by El. The
Agency shall then determine how much, if any, EAS personal absence time
Complainant is due for the same period. The Agency shall reimburse Complainant for
any EAS personal absence time she is due, to the extent it has not already done so.

6. Within 60 days of the date this decision becomes final, the Agency shall forward a
letter to OWCP [Office of Workers’ Compensation Programs] informing OWCP of
Complainant's EAS 19 salary from April 2004 through July 6, 2004, for purposes of
determining the OWCP benefits she is entitled to for the relevant timeframe.

7. After the Agency has calculated and paid Complainant’s back pay award, Complainant
shall have 60 days following the end of the tax year in which the final payment is

1 “E1” is the employee the Agency selected over Petitioner during the promotion action found
by the Agency to have been discriminatory.
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received to calculate the adverse tax consequences of any lump sum back pay awards, if
any, and notify the Agency. Following receipt of Complainant's calculations, the
Agency shall have 45 days to issue Complainant a check for any adverse tax
consequences established, with a written explanation for any amount claimed but not
paid.

Our prior decision also stated after the listing of the seven provisions in the Order:

Upon completion of the above requirements, the Agency shall submit a report of
compliance to the Compliance Officer, which shall include all the above calculations
and photocopies of any additional payments made to Complainant, and copy this report
to Complainant.

In its report of compliance dated August 23, 2011, the Agency determined that it had fully
complied with the Commission’s Order. By letter dated March 14, 2012, the Agency
submitted an additional report of compliance to the Commission, providing a summary of the
Agency’s payments to Complainant and reasserting that the Agency has fully complied with the
Commission’s Order. The Agency stated that Complainant had been paid the following sums:
$51,484.68 for compensatory damages and costs of suit; $155,725.65 in attorney’s fees;
$76,949.17 in back pay (salary); $10,121.51 in pay for performance; $22,835.90 for interest
on the back pay award; $1,365.00 in recalculated pay for performance; $47.29 for interest on
the recalculation; $37,691.00 for Complainant’s 2007 adverse tax consequences; $51,884.14
for attorney’s fees; $65,982.88 in back pay (salary, recalculated); $84,196.16 for back pay
(OWCP) corrected salary differences and other hours; $42,691.55 for interest on the back pay
(salary recalculation); $40,706.65 for interest on the back pay (OWCP corrections); and
$2,297.77 in interest on terminal leave and pay for performance (other hours). In support of
the Agency’s report of compliance, the Agency provided copies of the various checks (payroll
checks, typewriter check payments, and remittance advice memoranda) issued to Complainant.

Dissatisfied with the Agency’s compliance, on September 15, 2011, Petitioner submitted the
instant petition for enforcement.

PETITIONER’S CONTENTIONS

In her Petition, Petitioner recounts the lengthy exchange of correspondence, telephone calls,
and electronic mail messages, between the Agency and Petitioner, as well as with the
Commission’s compliance officer to obtain the Agency’s performance from February 2010
through August 23, 2011. By letter dated March 10, 2012, Petitioner summarized Agency’s
failures to comply with the Commission’s Order as follows:

1. The Agency failed to provide the required back pay calculations in plain language, and
failed to support its back pay calculations with full documentation regarding E1’s relevant
salary and award information.

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2. The Agency twice deducted Petitioner’s OWCP benefit payments (approximately
$8,000) from her back pay award.

3. The Agency’s back pay calculations are wrong and therefore, the interest payments and
calculations provided by the Agency are also wrong.

4. Petitioner has not had the opportunity to review and sign Office of Personnel
Management (OPM) SF 2801-110, and Petitioner is unaware of the high three years reported
to OPM by the Agency for retirement purposes.

5. The Agency has not provided any evidence that the interest Petitioner lost on her Thrift
Savings Plan (TSP) account has been paid.

6. The Agency’s method used to calculate the adverse tax consequence is wrong.

Petitioner further states that she is owed additional attorney’s fees based on the efforts of her
attorney, whose services were the necessary catalyst for the Agency’s compliance. Petitioner
also argues that much of the relief obtained was delayed beyond the timeframes set forth in the
Commission’s order and some relief, as Complainant has explained, remains outstanding.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.503(a) provides that a petitioner may petition the
Commission for enforcement of a decision issued under the Commission's appellate
jurisdiction.

As a preliminary matter, we find Petitioner does not challenge the Agency’s explanation of the
sums that appear on Form 1099 for tax year 2006, as ordered in provision (4) of the
Commission’s Order in EEOC Appeal No. 0120072120. We find the Agency has complied
with provision (4) of our prior Order.

Back Pay

A. Payments

After a careful review of the record, we find there is insufficient information in the record to
determine whether the Agency provided Petitioner with the appropriate back pay award. We
observe, as does Petitioner, that the Agency failed to provide source documents pertaining to
E1 (the comparator employee) demonstrating the paid leave, awards, and compensation paid to
E1 for time spent on higher level details. We find, for instance that the Agency submitted
copies of E1’s standard form 50 (SF 50) for the relevant years, providing information
regarding E1’s base salary and some incentive award information. However, these forms do
not provide adequate information regarding E1’s compensation, for example, his pay during
the time period he was assigned to higher level details. We note, nevertheless, that the Agency
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tendered an award of back pay to Complainant based upon higher level detail compensation,
without showing the origin of that pay information.

The record shows that the Agency submitted numerous personnel documents pertaining to
Petitioner’s salary history, but did not provide equivalent documentation for E1. For example,
the Agency supplies a “payroll journal” demonstrating how Complainant’s pay has been
adjusted, but the Agency does not provide a “payroll journal” showing E1’s bi-weekly salary
payments. Additionally, we find no records that show the complete history of E1’s pay for
performance and terminal leave. As an attachment to its letter of July 6, 2010, the Agency
supplies an “Employee History” detailing Complainant’s salary history. No similar history for
E1 appears to document that Complainant’s history as adjusted, now mirrors E1’s. Attachment
2 to this same letter is a 43-page exhibit detailing Complainant’s hours, gross salary, and
deductions. Again, no similar exhibit providing the same information for E1 appears in
support of the Agency’s back pay calculations. Thus Petitioner is denied a meaningful
opportunity to verify that the Agency has corrected her pay history to mirror E1’s pay history.2

We concur with Petitioner that the Agency has not provided a “plain language” explanation of
these portions of Petitioner’s back pay award and as Petitioner has claimed, the interest
calculations and payments are therefore impossible to reconcile since the back pay award must
be determined first. We shall remand this issue so that the Agency may supplement the record
with the appropriate documents regarding E1’s salary and related compensation, together with
a plain language explanation of Petitioner’s back pay award.

B. Notice to the Office of Personal Management (OPM)

Petitioner states that to date, she has not received a Standard Form (SF) 2806-1 to correct her
salary information submitted to OPM for purposes of adjusting her retirement benefits. We
are unable to find a response from the Agency to Petitioner’s concerns regarding the Agency’s
duty to inform OPM of the retroactive changes made to Complainant’s salary. Assuming
Petitioner is correct about the means required to inform OPM, we find no evidence the Agency
has provided this form to Petitioner, and inadequate evidence that the Agency has appropriately
informed OPM of the adjustments that have thus far occurred.

On remand, we will order the Agency to address Petitioner’s concerns regarding the notice to
OPM of the relevant adjustments to Petitioner’s compensation and benefits sufficient to enable
OPM to recalculate retirement benefits accurately.

2 Additionally, the Agency has supplied a “back pay report” as well as a “finance summary”
pertaining to Complainant’s compensation. The variety of payroll reports the Agency has been
able to generate regarding Complainant’s pay leads the Commission to believe the Agency has
the means to provide more than simply the base salary (SF 50) information and incentive
award information regarding E1’s hours, awards, and overall compensation.
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C. OWCP Deduction

Petitioner notes that the Agency appears to have deducted approximately $8,000 for payments
she received from OWCP in 2004 to 2005 twice from the gross amount of her back pay award.

The record reveals that Petitioner received a check in the amount of $56,714.80 dated August
4, 2010. This check is accompanied by a “payment summary” that shows the following
payment calculations: Gross pay $76,917.27, plus $8,711.76 (terminal leave), plus $6,734.87
(merit/PPP), minus $8,136.87 (OWCP payments), for a gross total of $84,196.16. Tax
withholdings at the rate of 25% were deducted along with Medicare withholding ($22,269.89);
also deducted from the gross back pay are voluntary deductions totaling $5,211.47 for a net
payment to Complainant of $56,714.80. The Agency then provided Petitioner with a
“Detailed Report – Back Pay Interest Computation” which purports to calculate the accrued
interest upon the back pay award by each pay period from January 1998 through August 2010.
This report yields a total interest payment of $40,706.65 on back payments totaling
$68,780.41.

The Agency has not directly responded to Petitioner’s assertions about the incorrect double
deduction of $8,000 in payments she received from OWCP in 2004 to 2005. There is no plain
language explanation in the record explaining why Complainant is wrong or right about the
double deduction. Therefore, we shall order the Agency to provide a clear, plain language
explanation addressing Petitioner’s argument regarding the purported incorrect double
deduction of $8,000 in payments she received from OWCP in 2004 to 2005.

D. Thrift Savings Plan

In her petition, Petitioner states that the Agency deducted Thrift Savings Plan (TSP)
contributions from her back pay award for specific years, but provided no documentation to
show that the Agency has paid the lost interest or earnings on the deduction. Petitioner adds
that because the Agency made back pay awards in 2007 and also in 2010, Petitioner incurred
two early withdrawal penalties as well as additional tax liability, when, had the Agency
complied with the AJ’s Order, she would only have incurred one withdrawal penalty.

Gross back pay includes all forms of compensation including fringe benefits such as pension.
Robinson v. Dep’t of the Treasury, EEOC Petition No. 04980006 (July 2, 1998). TSP is a
tax-deferred investment retirement plan for federal employees. The Commission has held that
‘make whole’ relief requires the agency to make retroactive tax-deferred contributions to
petitioner's TSP account during the back pay period. Howgate v. U.S. Postal Service, EEOC
Petition No. 04990031 (February 4, 2000) (citing Fiene v. U.S. Postal Service, EEOC Petition
No. 04920009 (September 3, 1992)). The Commission has also held that, to the extent a
complainant would have received government contributions to a retirement fund as a
component of his salary, he is entitled to have his retirement benefits adjusted as part of his
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back pay award, including receiving the earnings which the account would have accrued. Id.
(citing Robinson, supra; Lee v. Dep’t of the Army, EEOC Petition No. 04980020 (October 1,
1998); Korchnak v. U.S. Postal Service, EEOC Petition No. 04960028 (December 19,
1996)(petitioner who was terminated before becoming eligible for TSP entitled to enrollment in
the program); Wrigley v. U. S. Postal Service, EEOC Petition No. 04950005 (February 15,
1996)).

On remand, we will order the Agency to provide Petitioner with a clear, plain language
explanation of whether it has paid the earnings on Petitioner’s TSP contributions. Petitioner’s
claim for additional tax penalties caused by tendering back pay awards in multiple tax years,
rather than in a single tax year, will be considered herein under the section entitled “Adverse
tax consequences.”

Personal absence time

The Agency responded to Petitioner’s claim for E1’s personal absence time, reimbursement for
her leave without pay (LWOP), and restoration of sick, annual, and other leave Petitioner used
when she would also have had EAS personal absence time available to her (as E1 did). The
Agency submits evidence that it no longer has leave records for E1 or for Petitioner for the
time periods in question because such records are not retained after three years. Additionally,
the Agency supplies an affidavit of E1’s supervisor who does not recall E1’s use of personal
absence time.

Petitioner points out that on May 10, 2006, the Agency was initially notified by the AJ that the
Agency would be required to provide Petitioner with remedies including compensation to
mirror E1’s pay, benefits, and other awards, so that Petitioner would receive “make whole”
relief. The Agency never appealed the AJ’s decision or her order for relief. Petitioner states
that the Agency had a duty to maintain and preserve records in connection with E1’s leave and
pay, and to ask him about his use of personal absence time, which the Agency apparently
failed to do.

We find, as acknowledged by the parties, no evidence that E1’s use of personal absence time
would have been documented by traditional leave slips (known as form 3971’s). Petitioner
asserts that typically supervisors use 8 hours of personal absence time each week or more,
given that employee’s in E1’s position typically travel to other facilities to attend meetings,
arbitrations and hearings, and then return to their home at the conclusion of the activity, rather
than to their office for the balance of the work day.

Petitioner argues that the Agency failed to act with due diligence to discover the evidence of
E1’s use of personal absence time from the most likely source: E1. We find no evidence that
the Agency made any attempt to obtain the leave information, either from E1’s personal
records or by affidavit from E1; nor has the Agency indicated why it failed to do so. We find
the Agency has failed to provide evidence to support its determination of the leave to be
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restored to Petitioner to compensate her for the personal absence time she would have had
available to her, absent discrimination, as measured by the leave used by E1.

We remand the issue of EAS personal absence time to the Agency for a supplemental
investigation to determine the amount of personal absence time El used during the relevant
time. If E1 has separated from the Agency, then the Agency shall take reasonable steps to
contact E1 in an attempt to determine the amount of personal absence time El used during the
relevant time. The Agency shall then clearly document how much EAS personal absence time,
if any, Petitioner is entitled to and if appropriate, restore such leave to Petitioner.

Interest

We find that until the Agency has fully complied with the core back pay award, it will be
unable to correctly calculate the appropriate interest. Accordingly, the Agency must
recalculate its interest award following its full compliance with the Order herein.

Adverse tax consequences

Pursuant to the Commission’s Order, the Agency was required to pay Complainant an amount
to compensate her for the tax consequences of a lump-sum wage payment, according to proof
to be provided by Complainant. We note Complainant objected to the calculations by the
Agency which concluded that the adverse tax consequences associated with back pay payments
made to Complainant in tax years 2007 and 2010, totaled $23,508.00. The Agency claims that
Complainant has been overpaid for the tax consequences because the Agency paid Complainant
$37,691.00 in 2008, to compensate her for the lump sum consequences.

The Commission has held that, under both legal and equitable theories, an award to cover
additional tax liability from a lump sum payment of back pay is available to complainants.
Van Hoose v. Dep’t of the Navy, EEOC Appeal Nos. 01982628 and 01990455 (August 22,
2001); Goetze v. Dep’t of Navy EEOC Appeal No. 01991530 (August 22, 2001); Holler v.
Dep’t of the Navy, EEOC Appeal Nos. 01982627 and 01990407 (August 22, 2001). We note,
however, that the Commission has not recognized any entitlement to awards to cover tax
liability for interest, attorney’s fees, or compensatory damages. In the case of a lump sum
back pay award individuals are compensated for the extra tax they are required to pay as a
result of receiving a lump sum award, as opposed to the actual amount they would have to pay
if they had received the pay over a period of time, usually several years. It is the receipt of the
pay in one lump sum that causes the extra tax liability, not the back pay award itself. In the
case of compensatory damages, attorney’s fees, and interest, there is no option to receive
partial payments over time. Thus, there are no additional tax consequences to awards of
compensatory damages, attorney’s fees, and interest, and therefore, no entitlement to
compensation for such negative tax consequences.

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The Commission finds that we cannot provide a precise determination of the actual adverse tax
consequences until the Agency provides a clear explanation of its back pay and corrections
where appropriate.

Attorney’s Fees

Because we have not reached final calculations of monies due Petitioner from our prior Order,
we cannot be certain at this moment that Petitioner is a prevailing party for her attorney’s work
in pursuing the Petition for Enforcement. Therefore, find that an award of attorney’s fees and
costs is premature until the final calculations are made regarding back pay and benefits in
compliance with our prior Order. Once those calculations are made, Petitioner may submit a
request for attorney’s fees and costs to the Agency.

CONCLUSION

Based upon a review of the record, the Commission VACATES the instant matter and we
REMAND the matter to the Agency for a supplemental investigation.

ORDER

Within 90 days of the date this decision becomes final, the Agency shall:

1. Conduct a supplemental investigation regarding the employee salary history,
including, but not limited to the awards, pay for performance, terminal leave, and
EAS personal absence time used by or paid to the employee identified as E1 in this
decision.

2. Conduct a diligent search and contact E1 if necessary to obtain adequate
documentary and testimonial evidence regarding E1’s use of EAS personal absence
time used during the relevant back pay years. If such efforts fail, then the Agency
shall supplement the record with evidence demonstrating E1’s current use and E1’s
use during the preceding three calendar years of personal absence time.

3. Provide a clear, plain language explanation in writing addressing Petitioner’s
argument regarding the purported incorrect double deduction of $8,000 in payments
she received from OWCP in 2004 to 2005.

4. Provide Petitioner with a clear, plain language explanation of whether it has paid
the earnings on Petitioner’s TSP contributions.

5. Recalculate Petitioner’s back pay award (with interest, if applicable) pursuant to 29
C.F.R. §1614.501.

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6. Provide a detailed statement of all of its calculations, clarifying how Petitioner's
back pay award (including benefits) was reached to Petitioner and the Commission.
The statement shall consist of a clear and concise, “plain language” statement of the
methods of calculation used for the present matter and actual calculations specifying
the formulas and methods used.

7. Address in writing Petitioner’s concerns regarding the notice to OPM of the
relevant adjustments to Petitioner’s compensation and benefits sufficient to enable
OPM to recalculate retirement benefits accurately.

8. Compensate Petitioner for the increased tax liability, if any, that she stands to
sustain as a result of being paid a lump sum back pay award. This is an equitable
remedy. The burden of proof to establish the amount of additional tax liability is on
Petitioner. The calculation of additional tax liability must be based on the taxes
Petitioner would have paid had she received the back pay in the form of regular
salary during the back pay period, versus the additional taxes she will pay due to
receiving the back pay lump sum award. Petitioner must submit proof of this
amount to the Agency within 30 calendar days of her receipt of the Agency’s
calculations and/or payment of her back pay award (whichever Petitioner receives
first) pursuant to this decision. If the Agency timely receives this evidence, it must
issue a check for the increased tax liability within 60 calendar days of its receipt of
the evidence or issue a decision finding there were no increased tax consequences.
Petitioner must cooperate with requests by the Agency for assistance in making the
calculations.

9. Issue a new decision as to whether it was complied with corrective actions (1) – (8).

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation of the Agency's actions in accordance with this Order.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
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underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. If you file a civil action, you must name as the defendant in the
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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. Filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 13, 2013
Date