[Redacted], April T, 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022000498 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 April T,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022000498 Hearing No. 570-2018-00019X Agency No. HSCBP01024-2017 DECISION On November 4, 2021, 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 November 2, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. 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 Security Specialist (SS or Security Specialist Representative [SSR]), GS-0080-13, at the Agency’s Office of Intelligence in Washington, D.C. Complainant is a female. She stated that she has been diagnosed with adjustment disorder with anxiety since 2014. Complainant has engaged in prior EEO activity, having filed an informal complaint against the Deputy Director of the Security Division (the Deputy Director) that was later withdrawn. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2022000498 Complainant’s first-level supervisor was the Security Division’s Director (Supervisor 1A). He learned of Complainant’s disability and prior EEO activity in January or February 2017. Starting March 1, 2017, the Security Division’s Special Security Office (SSO), became Complainant’s first-level supervisor (Supervisor 1B). Report of Investigation (“ROI”) at 93-6, 259-60, 401-03, 558, and 569. Complainant’s duties included processing Requests for Access (“RFA”), conducting indoctrinations, and requesting indoctrination assists, including for the Agency’s Office of Field Operations (“OFO”) Tactical Terrorism Response Team (“TTRT”) and Joint Terrorism Task Force (“JTTF”). ROI at 20, 22, 97, and 115. Complainant’s duties did not involve working with or processing sensitive compartmented information (“SCI”). A RFA is a request for an individual with a security clearance to access SCI. Processing them entails forwarding the RFAs to the Agency’s Office of Professional Responsibility (“OPR”) in its Personnel Security Division (“PSD”) to adjudicate whether to grant the RFAs. ROI at 97. An indoctrination is an in-person briefing or swearing-in process that occurs after OPR, PSD has approved a RFA, and is the last stage in the process for the requesting individual to gain SCI clearance. An indoctrination assist is when an indoctrination is performed by an SSO that is geographically closer to the requesting employee. It requires the SSR to arrange for the employee to have access to that SSO, i.e., the SSO’s secure building, for the in-person indoctrination. Once an individual is indoctrinated, Complainant’s duties in January 2017 further included noting the person as having access to SCI in the Agency’s Integrated Security Management System (“ISMS”), which keeps track of the type of clearance every employee has at any particular time. The Security Division’s policy was that Agency employees must submit all inquiries, including RFAs and indoctrination requests to the Special Security Office (“SSO”) box. ROI at 278. On January 23, 2017, Supervisor 1A was advised that Complainant had indoctrinated a TTRT employee but had not input the information into ISMS. The Security Division performed an audit of Complainant’s prior TTRT RFAs, revealing 187 RFAs without the signature of then-OI Assistant Commissioner (Assistant Commissioner), and 36 RFAs from 2015 that were never processed. On January 24, 2017, Supervisor 1A held a meeting with the Security Division, including Complainant, instructing that he or the Deputy Director must approve all future indoctrinations and indoctrination assists. On January 27, 2017, a JTTF employee sent an email to Complainant and the SSO box advising he would be sending documents for an indoctrination assist. Complainant responded that he should not courtesy copy (cc) the SSO box and that she would provide a point of contact (POC) for him if she is away from the office. ROI at 279. On February 1, 2017, Supervisor 1 emailed the Security Division that he was implementing the upcoming CBP Directive regarding the Processing of SCI and that, in accordance with the Directive, all RFAs, except for Onboarding RFA, will be processed through OI (undefined acronym) Security POCs and the only authorized signature is the OI Deputy Assistant Commissioner (Deputy Assistant Commissioner). 3 2022000498 The OI Security POCs were identified as two of Complainant’s coworkers (Coworker 1 and Coworker 2); and the RFAs will be reviewed by Supervisor 1B or the Deputy Director. On February 2, 2017, Supervisor 1A reported a potential breach of integrity and violation of an order by Complainant. Specifically, Supervisor 1A stated that Complainant had unsuccessfully recalled an email dated January 28, 2017 in which Complainant directed an employee to “[not] cc’d the SSO box when requesting to send JTTF clearance certifications to Federal Bureau of Investigation (FBI).” Supervisor 1A stated this was important because of another issue that was brought to his attention on January 23, 2017, and he had made a directive that all requests for service would not be authorized without his knowledge or signature. Supervisor 1A’s email stated that Complainant’s email violated his order. On February 21, 2017, Supervisor 1A emailed the Security Division that Coworker 1 would be the first point of contact in the processing of Personnel Security Actions, including RFAs and PermCert (undefined) requests. The email also stated that all indoctrinations and debriefings were to be communicated to Supervisor 1B. Also on February 23, 2017, Complainant emailed the Executive Director (Executive Director) and cc’d OI Assistant Commissioner, Deputy Commissioner, and OI Chief of Staff (Chief) about Supervisor 1A’s treatment of her. ROI at 125 and 165. On February 28, 2017, Supervisor 1A learned that Complainant had arranged for an indoctrination assist in Miami without obtaining proper authorization. That same day, Supervisor 1B forwarded a memorandum of record to Complainant to cease sending emails to Executive Director, Assistant Commissioner, and Deputy Assistant Commissioner without discussing the issue with him first. ROI at 86. On Friday, March 3, 2017, Complainant emailed Supervisor 1B stating: “I will not be in today. I had to contact the VA crisis line, during the night, because of suicidal thoughts due to what happen[ed] at work. I have to contact VA this morning.” ROI at 127. On Saturday, March 4, 2017, Supervisor 1B contacted Complainant’s local police department to check on Complainant, and Complainant texted Supervisor 1B that she was “good” and to “please stop having the police come to my house.” Supervisor 1B forwarded Complainant’s email to OPR, PSD (undefined acronym). ROI at 344. On March 7, 2017, Complainant submitted a request for a reasonable accommodation to be temporarily removed from OI leadership on the 7th Floor to Tack Ops in OFO on the 5th Floor. ROI at 526 and 533-34. On Sunday, March 12, 2017, Supervisor 1B responded to her request and instructed Complainant to report to the Human Resources Management (HRM) area on the 7th floor. The HRM area was located away from the OI area and OI leadership. On Monday, March 13, 2017, Complainant resubmitted the same reasonable accommodation request, i.e., to be moved to the 5th floor. ROI at 542-43. Complainant did not report to the HRM area. ROI at 102-05. 4 2022000498 On March 15, 2017, Supervisor 1B conducted an interactive dialogue with Complainant regarding her request. ROI at 535. During the interactive dialogue discussion, Complainant explained that she was experiencing stress, frustration, and fear by management’s unwillingness to engage in collaboration with her when it came to changing work assignments, stating that the only answer she received was “I’m the director and it is not up for discussion.” ROI at 537-38. On March 21, 2017, Complainant received a reasonable accommodation letter, offering the following accommodations: (1) daily (as regularly as possible) meetings with her supervisor for collaboration and communication; (2) access to the fitness center; (3) written instructions related to work performance by email; (4) providing training on PTSD to her colleagues. ROI at 542-43. On March 24, 2017, in the same March 21st Letter, Complainant was instructed, effective March 27, 2017, to work in the HRM area and perform the above-cited list of non-classified duties. ROI at 183 and 316-17. The U.S. Department of State’s Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (“Adjudicative Guidelines”) advise temporarily suspending the security clearance of someone with access to classified information, if concerning security information about that person becomes known, until final adjudication of that information. Among the types of concerning security information that the Adjudicative Guidelines contemplates are psychological conditions and personal conduct. ROI at 347-48, 353-56, and 361-62. On Tuesday, March 7, 2017, OPR suspended Complainant’s security clearance pending a conclusion of an internal investigation. OI management was advised that Complainant could not have access to classified information systems until otherwise advised. ROI at 79-80. That same day, Supervisor 1A provided Complainant a memorandum of instruction, which informed her that she was the subject of an OPR investigation into an allegation of breach of integrity and unprofessional conduct and that, if true, she should cease from engaging in these activities. ROI at 327-28. The duties of an SS primarily involve handling classified information. ROI at 102-03, 316-17, and 530. The deciding official for the suspension of the security clearance was the Assistant Director of OPR, PSD’s Employee Operations Unit (Assistant Director). ROI at 337 and 339-40. At the time of her decision, Assistant Director was unaware of Complainant’s disability or her 2016 EEO complaint, though she did know Complainant’s sex. ROI at 339. Assistant Director did not communicate with Supervisor 1A or anyone else in the Security Division about Complainant’s security clearance and her decision to suspend it. Complainant was placed on administrative leave with pay from March 7-10, 2017. ROI at 269 and 397. While her security clearance was suspended (March 7 - May 8, 2017), Complainant could not handle any classified information. ROI at 79-80, 292-93, and 385-87. On March 20, 2017, Supervisor 1A instructed Coworker 1 to remove Complainant’s access to the Special Security Officer (SSO) folder on the computer system, i.e., the “S: drive.” 5 2022000498 Complainant admitted that her SSO folder access was removed due to her security clearance suspension and acknowledged that she regained access to the folder on May 24, 2017, shortly after her security clearance was reinstated on May 8, 2017. On March 24, 2017, Complainant had received a list of duties that did not require a security clearance in a letter, dated March 21, 2017 (“March 21st Letter”). Complainant could also perform work from the SSO box. ROI at 103, 183, and 316-17. Complainant did not perform those duties because that was not what she was hired to do. On March 28, 2017, Complainant presented herself in the Office of the CBP Commissioner and asked to speak with him. The Commissioner is the head of the Agency. She was told the Commissioner could not see her and she left the office. She subsequently returned and was upset and crying. An OPR Agent arrived at the Office of the Commissioner to escort her out. Supervisor 1B requested from OPR a Do Not Admit (“DNA”) for Complainant into the building without the Security Division’s approval, adding he understood she would be required to be escorted to enter the building. The DNA was approved and communicated to all building security personnel. Complainant returned to work on April 4, 2017, whereupon she had to be escorted back into the building by her supervisor, Supervisor 1B, and her personal identity verification (“PIV”) card had been deactivated. ROI at 107-08. Her PIV card was reactivated within one hour after her return. Id. at 108. On April 7, 2017, Complainant resubmitted her reasonable accommodation requests in March, along with a letter from her health care provider, dated April 5, 2017. ROI at 43, 130, and 544-45. Supervisor 1A advised Supervisor 1B that Supervisor 1A was addressing the request and to not respond to Complainant’s message. ROI at 265-66 and 318. On April 24, 2017, Supervisor 1A formally denied Complainant’s request to be relocated to Tack Ops in OFO. ROI at 74-5. Complainant returned to the building again on April 11, 2017, and had to be escorted back into the building by her supervisor, Supervisor 1B, and her PIV card had again been deactivated. ROI at 109-10. The DNA was rescinded on April 12, 2017. Complainant received a letter dated April 19, 2017 proposing to indefinitely suspend her because of her security clearance suspension. ROI 72-3. On April 27, 2017, OPR sent Complainant a letter of inquiry seeking mitigating information concerning her personal conduct, psychological state, and ability to safeguard national security information to determine whether to reinstate her security clearance. ROI at 82-4. Complainant provided the requested information, leading to reinstatement of her security clearance on May 8, 2017. ROI at 131. On May 9, 2017, the day after Complainant’s security clearance reinstatement, the indefinite suspension proposal was cancelled. Executive Director decided Complainant’s full TS/SCI security clearance access would be restricted and she would rather work on duties requiring a lesser security clearance pending resolution of the integrity investigation. ROI at 316 and 329. Complainant was not permitted to enter the Sensitive Compartmented Information Facility (SCIF), and her access to the S Drive was restricted, but she could access her computer, could perform work from the SSO Box, and was still assigned and able to perform the duties assigned to her in the March 21st Letter. ROI at 183. 6 2022000498 On December 14, 2017, OI management issued its finding that disciplinary action was not warranted. That same day, Complainant received full access. After Supervisor 1A’s retirement in December 2017, another employee was promoted to the Security Division Director position (the Director) in early 2018. Prior to his promotion, the Director had not been involved in Complainant’s management or prior EEO activity. In 2018, Complainant’s duties included providing SCI-refresher training to the Agency’s SCI-cleared employees to remind them of the rules of their clearance. The SCI-refresher training could be sent and completed online via PDF presentation. On September 6, 2018, the Director proposed that Complainant be suspended for 5 days based on charges of unprofessional conduct and failure to follow supervisory instructions. The unprofessional conduct charge was based on, from February 7, 2018 to July 17, 2018, multiple condescending, demanding, and disrespectful emails from Complainant, and instances of Complainant attempting to travel to provide SCI-refresher training in-person without the Director’s prior approval in violation of his previous instruction that all such requests require his approval, that SCI-cleared employees independently conduct SCI- refresher training via PDF presentation, and that Complainant may not travel to provide the training in-person. The failure to follow supervisory instructions charge was based on Complainant’s refusal to meet with the Director and Supervisor 1B when requested on August 2 and August 7, 2018, respectively. On October 18, 2018, Complainant received the decision letter, signed by the deciding official, Executive Director, sustaining the Notice of Proposed Suspension’s two charges and mitigating the proposed 5-day suspension to a 3-day suspension. Complainant served the 3-day suspension from Sunday, October 21, 2018 through Tuesday, October 23, 2018. On April 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), disability (mental), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On January 9, 2017, Supervisor 1A failed to meet with Complainant to discuss her duties and responsibilities, but met with her two coworkers; 2. On February 1, 2017, Supervisor 1A notified Complainant via email that she was no longer a point of contact or authorized to process RFA; 3. On February 6, 2017, Supervisor 1A instructed Complainant to submit all non- disclosure forms to him for review by the Security office; 4. On February 28, 2017, Supervisor 1B instructed Complainant not to communicate directly with upper management officials, and placed these instructions in a memorandum of record; 7 2022000498 5. On March 1, 2017, the Deputy Director verbally instructed Complainant not to touch SCI, per orders from Supervisor 1A; 6. On March 2, 2017, Supervisor 1B was assigned as Complainant’s first-level supervisor, but her two Coworkers still reported directly to Supervisor 1A; 7. On March 7, 2017, Supervisor 1B issued Complainant a memorandum stating she was under investigation for breach of integrity and unprofessional conduct; 8. From March 14-20, 2017, Supervisor 1A isolated Complainant at work on the 7th floor, in the HRM area, and did not provide her with any duties; and subsequently, on March 24, 2017, Supervisor 1B issued Complainant a letter dated March 21, 2017, stating she was being moved to the HRM office on the 7th floor, effective March 27, 2017; 9. On March 20, 2017, Coworker 1 sent an email to the CBP Technology Service Desk requesting to have Complainant’s access to the SSO folder on the S: drive removed; 10. On March 28, 2017, Supervisor 1A had security remove Complainant from the CBP Commissioner’s office and escorted out of the building; 11. On April 4, 2017, security informed Complainant that she had to be escorted back into the building by her supervisor, her PIV card was deactivated, and she had to sign in at the front desk; 12. On April 7, 2017, Complainant learned Supervisor 1A instructed Supervisor 1B not to respond to her April 5, 2017 doctor’s note pertaining to her reasonable accommodation request; 13. On April 10, 2017, Supervisor 1B would not provide Complainant with the status of her reasonable accommodation; 14. On April 11, 2017, three security guards informed Complainant that she had to be escorted back into the building, her PIV card was deactivated, and she had to sign in at the front desk; 15. On April 15, 2017, Supervisor 1A violated Complainant’s request that her reasonable accommodation related materials be sent to her via her Attorney; 16. On April 19, 2017, Supervisor 1B issued Complainant a letter proposing to indefinitely suspend her security clearance; 17. From May 10-23, 2017, Complainant was denied entrance to the SCIF, denied work assignments, and denied computer access; 8 2022000498 18. On February 15, 2017, Complainant’s TTRT, JTTF duties were reassigned to Coworker 1; 19. On March 7, 2017, Complainant’s Top Secret/SCI Security Clearance was suspended; 20. From March 7-10, 2017, Complainant was placed on administrative leave with pay; 21. On April 24, 2017, Complainant’s request for reassignment to the OFO as a reasonable accommodation was denied; and 22. On October 21, 2018, Complainant served a three-day suspension. The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties engaged in a protracted and extensive discovery during which the Agency produced over 4,000 pages of documents. On March 9, 2020, the Agency filed a motion for summary judgment (Agency’s Motion). Complainant filed an opposition. Having reviewed the Agency’s statement of undisputed facts, Complainant's opposition, and the record as a whole, the AJ assigned to the case determined that the Agency’s Motion clearly identified the issues, established that there were no genuine issues of material fact, outlined the factual background, and provided sound and persuasive analysis. The AJ also determined that summary judgment in favor of the Agency was appropriate and issued a decision without a hearing on October 1, 2021 in favor of the Agency. The AJ found that the Agency was correct in asserting that Complainant failed to offer evidence to support a prima facie case of discrimination as to any of her claims. According to the AJ, beyond Complainant’s bare assertions, the record was devoid of any indication that discriminatory motives influenced any of the Agency’s actions. To the extent Complainant challenged any of the Agency’s asserted undisputed facts, asserted the AJ, the discrepancies she asserted were immaterial, and made no difference to the analysis. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal (and in a Rebuttal Statement), among other things, Complainant reiterates her claims, contesting the AJ’s decision which she argues was a mistake. According to Complainant, during the extensive discovery search, both parties committed “spoliation” of evidence (intentional, reckless, negligent withholding, hidden) supportive email documentation. She argues that the only way to resolve this allegedly conflicting evidence and what happened is to hold a hearing. 9 2022000498 She identifies specific exhibits (Ex.) to support her allegations to include Ex. 5 at 3870-3871 - 2018 three-day suspension and retaliation. Complainant asks the Commission to reverse the AJ’s summary judgement decision and remand the matter for a hearing. On appeal, among other things, the Agency reiterates its stated reasons for the challenged actions, opposing Complainant’s appeal. The Agency also expresses agreement with the AJ’s decision, asserting that it was correct in law and fact. The Agency argues that Complainant’s claim of spoliation is without merit, asserting that it engaged in an extensive discovery process and turned over 4,000+ pages of materials to Complainant; and that her three exhibits were all documents that the Agency provided during discovery. Appellant's Exhibit 1 and 2 that she included with her Appeal Brief are both Bates Stamped from the Agency's production in this matter as "Agency Bates No. 002843" and as "Agency Bates No. 002844." The Agency adds that Complainant’s argument that her Exhibit 3 "was not include [sic] in the EEO case," is also without merit because the Agency produced it as "Agency Bates No. 004016." According to the Agency, this was a screenshot of an email from the Director dated October 16, 2018, which Complainant’s former counsel forwarded to an identified Labor and Employee Relations Specialist to include in her responsive materials for a written reply as part of a removal action. The Agency adds that it provided the October 16 email in its second document production as "Agency Bates No. 004016." ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 10 2022000498 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 11 2022000498 Any supporting documentation must be submitted together with the 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 October 17, 2022 Date