[Redacted], Chanelle B., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020001056 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanelle B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2020001056 Hearing No. 410-2018-00213X Agency No. USM-2017-00369 DECISION 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 September 27, 2019 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 the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND The record reflects the following chronology of events. In 2010, Complainant was hired as a Deputy United States Marshall (DUSM). ROI 57. Prior to her employment with the Agency, Complainant was employed as a Police Officer with the United States Supreme Court. ROI at 57. Complainant’s initial salary as a DUSM was $60,505.00, GL-082-7, Step 10.2 ROI at 122. Complainant’s starting salary as a DUSM was a pay reduction from her salary with the U.S. 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 The record reflects that the reference to GL (rather than GS) refers to a special pay table for law enforcement officers employed in the federal government. 2020001056 2 Supreme Court. ROI 60, 121. The Agency asserts that this is consistent with applicable regulations that “a new DUSM with prior federal service outside the USMS may be paid at his or her highest previous rate up to GL-7, Step 10.” On March 10, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American) and sex (female). By letter dated May 15, 2017, the Agency accepted the formal complaint for investigation, and determined that it was comprised of the following claim: On January 13, 2017, Complainant learned that four white male deputies, who entered on duty with the [Agency] at the same time as she did, had their pay recalculated. In September 2017, Complainant requested a hearing before an EEOC AJ. At the time Complainant requested a hearing, she also filed a Motion for Default Judgment. Complainant asserted that the AJ should issue sanctions (default judgment) against the Agency for failure to timely complete an investigation. Complainant reasoned that it had been over 180 days from the filing of the formal complaint and the Agency had not transmitted the report of investigation (ROI). The Agency subsequently filed a Motion for Summary Judgment. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 9, 2019 motion for a decision without a hearing and issued a decision by summary judgment on August 2, 2019. In his decision, the AJ primarily addresses the issue of Complainant’s initial salary when she started her appointment with the Agency in 2010. Specifically, the AJ found that there is no evidence of discrimination regarding the rate Complainant’s pay was set forth in 2010. AJ Decision at 9. The AJ further finds that this claim is barred by the doctrine of laches. AJ Decision at 9. The AJ also discusses, in his decision, a federal court case involving a class action by DUSMs who were not given retained pay when initially hired. Specifically, the AJ sets forth that, “[t]he DUSMs who did not receive retained pay filed a class action suit stating that their starting pay had been calculated incorrectly… and should be changed to comport with the employees who were correctly,…in their view, granted retained pay.” Little v. United States, 124 Fed. Clms. 256 (2015) held that the Agency correctly placed a ceiling on the salary of DUSMs who were hired from outside the Agency at GL-7, Step 10. It found that the Agency’s error lay with the 24 DUSMs who were hired from outside the Agency who were allowed to retain their prior pay rate. It also held that the error committed in favor of those employees did not require the Agency to recalculate the salaries of those employees who were correctly hired at the maximum GL-7 grade, even though they had previously earned more.” AJ Decision at 7. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant, through her attorney, requests that the matter be remanded for a hearing. 2020001056 3 Complainants argues that the AJ erred in accepting the Agency’s rationale that it made administrative errors when Complainant’s comparators received an increase in pay. Specifically, Complainant asserts that while the Agency contends it was an error, it has not offered any evidence of the alleged error for three of Complainant’s comparators. Complainant asserts that there is conflicting evidence that the comparators increases were merely due to error. Complainant states that the increases were not due to administrative errors but rather intentional actions by employees in human resources. Complainant reasserts that her claim is not that she should have received pay retention when she was hired but that the Agency subsequently failed to recalculate her pay to a higher level as it did for white males. Moreover, Complainant, on appeal, reasserts that the AJ should have issued a default judgment for the Agency’s failure to complete an investigation in a timely manner. In response, the Agency asserts that the AJ’s decision was proper. The Agency reasserts that any pay disparity was due to the incorrect application of the relevant pay rules. Specifically, the Agency states, “[o]fficial pay records show what actually transpired regarding the pay of each of the [comparators]. Cross referencing the official pay records with the applicable pay regulations and statutes undisputedly demonstrates that pay errors were made regarding the comparators. Credibility determinations are of no relevance since the correct application of the governing pay statues provides no discretion.” Agency’s Opposition Brief at 12. The Agency also asserts that granting Complainant’s request for default judgment based on the Agency’s untimeliness in completing the investigation would be improper. The Agency reasons that it timely complied with the Order from the EEOC AJ to produce the report of investigation. ANALYSIS AND FINDINGS 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2020001056 4 The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that the record requires further development and possible credibility determinations. 2020001056 5 Complainant cites to four comparators (three white males and one biracial male) who had their salaries recalculated by the Agency, which resulted in them receiving higher salaries. While the Agency in its Motion for Summary Judgment and in its opposition brief asserts that there were administrative errors which resulted in the comparators receiving higher salaries, the record does not clearly support this assertion.3 The record contains affidavits from two of the comparators. They identify a named human resources official (HR1) who was responsible for the recalculations of their salaries. In addition, Complainant, in the EEO Counselor’s Report, asserts that the same human resources official, HR1, informed her that she would not fix her pay issue. ROI at 18. However, the record does not contain an affidavit from HR1. The record is devoid of evidence that the EEO Investigator attempted to obtain an affidavit from HR1. The record appears to reflect that HR1 is still a federal employee although for a different federal agency, and could be required to testify at a hearing before an EEOC AJ. ROI at 99. While the Agency states that no corroboration is needed for its assertion that the comparators’ salary recalculations were due to administrative errors, we disagree. It is possible, as Complainant suggests, that the recalculations for the salaries of these comparators were based on improper motives (i.e. decisions based on protected classes) from human resources’ officials. The record contains an affidavit from the Deputy Assistant Director of Human Resources (D1). While D1 states that she reviewed Complainant’s salary and found that her pay upon appointment was set correctly, D1 acknowledges that the pay for the four comparators were recalculated resulting in higher salaries. ROI at 82-83. D1 asserts that she herself recalculated one of the comparator’s salaries because he filed a grievance. However, she does not know why the salaries of the other three comparators were recalculated. ROI 82-83. The record also contains conflicting testimony as to a possible discriminatory motive. The record contains affidavits from two of the comparators. One of the comparators (C1) asserts that he did not believe the decision for the recalculation of certain employees was based on sex and race but rather “Human Resources just not wanting to do it for whatever reasons and doing it individually and trying to keep a lid on it.” ROI at 114-115. However, the other comparator (C2), who submitted an affidavit as part of the investigation, suggests that improper motives could have played a part in the recalculation decisions. When C2 was asked whether he thought these actions were based on race he stated, “I don’t know. That’s the thing I don’t know what these people think but I do know that some people they just immediately fixed and other people they did not. It just happened to be these White guys you know. Once they found out, their stuff was like getting fixed like immediately…there’s a White dude in here that’s getting stepped out all the way to a 12-10 and he’s only been here for three years. I mean it’s crazy stuff going on in the [human resources] department that nobody understands the logic.” ROI at 97, 100. In response to being asked if he thought the Agency’s actions were based on race, [C2] responded, in pertinent part: “I don’t know what they’re thinking over there, but I mean what’s sitting in front of us? If you look at it on paper, it looks that way.” ROI at 97. 3 The Agency in its Motion for a Decision without a Hearing and in opposition to Complainant’s appeal sets forth that it will take action to correct the errors in the comparators’ salaries. The record is devoid of evidence, however, that the Agency has initiated such corrective action. 2020001056 6 We further find that the AJ’s reliance on the Little case was misplaced. First, Complainant clarifies that her claim is not that she was not given retention pay when first hired (which was the issue in the Little case) but that subsequently around 2016 or 2017, she requested her salary be recalculated and her request was denied by human resources while other comparators who complained about their salaries had their salaries recalculated, which resulted in higher pay. In addition, the Agency acknowledges that Complainant was not a party to the litigation in Little. Agency’s Opposition Brief on Appeal fn.4. Moreover, the matter in Little did not involve a claim of discrimination. The Court in Little, as the Agency references below, set forth that: “[a] justification for the pay rate of [the DUSMs who received retention pay] would not necessarily result in an entitlement to relief for plaintiffs. Even if the [Agency] could not supply a justification for the 24 [DUSMs] that would withstand scrutiny, that would have no bearing on whether or not the law entitles plaintiffs…to relief.” Fed. Cl. 256, 275. (2015). However, the analysis for claims under Title VII differs. The analysis of Title VII disparate treatment claims involves, as set forth above, the Agency articulating a legitimate, nondiscriminatory reason for its actions and Complainant establishing, by a preponderance of the evidence, that the articulated reasons were pretext for discrimination.4 We do acknowledge that if Complainant on remand is successful in establishing a finding of discrimination, her remedies may be limited assuming arguendo that increasing her pay would violate a pay regulation. 4 While we discuss herein an analysis under Title VII, Complainant’s compensation claim may also be analyzed under the Equal Pay Act (EPA). The United States Supreme Court articulated the requirements for establishing a prima facie case of discrimination under the EPA in Corning Glass Works v. Brennan, 417 U.S. 188 (1974). To establish a prima facie case of a violation under the EPA, a complainant must show that she or he received less pay than an individual of the opposite sex for equal work, requiring equal skill, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for recons. den., EEOC Request No. 05A10076 (August 12, 2003). Once a complainant has met this burden, an employer may avoid liability only by showing that the difference in pay is justified under one of the four affirmative defenses set forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production of work (also referred to as an incentive or piecework system); or, (4) a differential based on any factor other than sex. Id. The EPA permits a compensation differential based on a factor other than sex. In order to establish this defense, an Agency must establish that a gender-neutral factor, applied consistently, in fact explains the compensation disparity. EEOC Compliance Manual, Chapter 10: Compensation Discrimination, No. 915.003, (EEOC Compliance Manual) at 10-IV (Dec. 5, 2000). The Agency must also show that the factor is related to job requirements or otherwise is beneficial to the Agency's business and used reasonably in light of the Agency's stated business purpose as well as its other practices. Id.; Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0720040139, req. for recons. den., 0520070616 (July 25, 2007). 2020001056 7 However, in such circumstances, Complainant may still qualify for remedies other than a change in her compensation such as attorney’s fees, compensatory damages, training for responsible officials and a posting order. Finally, to the extent the AJ found that Complainant’s claim was barred by the doctrine of laches, we disagree. The Lilly Ledbetter Fair Pay Act (Ledbetter Act), Pub. L. No. 111-12-123 Stat 5. The Ledbetter Act applies to all claims of compensation, pending on or after, May 28, 2007, under Title VII, the Rehabilitation Act and the Age Discrimination in Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that: An unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such a decision or other practice. Based on the foregoing, we find that Complainant’s compensation claim is not barred by the doctrine of laches. As discussed in detail above, we find that further development of the record and possible credibility determinations are needed. Thus, we remand this matter for a hearing. Complainant’s Request for Default Judgment The Commission has held repeatedly that sanctions must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission’s interest lies in deterring the underlying conduct of the non-complying party, protecting its administrative process from abuse by either party, and ensuring compliance with its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact, warranted, include the following: (1) the extent and nature of the non- compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process. Id.; see also Gray, EEOC Appeal No. 07A50030; Vovsest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). 2020001056 8 In the instant matter, we do not find that the AJ abused his discretion by not granting the Complainant’s request for sanctions. Complainant filed her formal EEO complaint on March 10, 2017. The record reflects that the investigation was conducted from July 14, 2017-October 20, 2017. ROI at 2. Complainant requested a hearing in September 2017. On February 6, 2018, the AJ issued an Order directing the Agency to submit the investigative file within 15 days from receipt of the Order. The Agency noted that it received the AJ’s Order on February 14, 2018. The record reflects that the Agency timely submitted the complaint file to the EEOC and transmitted an electronic copy to Complainant and her attorney on February 28, 2018 in accordance with the AJ’s Order. We do not find that Complainant was prejudiced by the Agency’s delay as she requested a hearing in September 2017. Based on the foregoing, we find that the AJ did not abuse his discretion by not granting the Complainant’s request for default judgment. Accordingly, the Agency’s final order implementing the AJ’s decision by summary judgment is VACATED and we REMAND this matter to the Agency in accordance with the ORDER below. ORDER The Agency is directed to submit a renewed hearing request on behalf of Complainant, as well the complaint file and a copy of this decision, to the EEOC Hearings Unit of the Atlanta District Office within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the AJ shall process the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. Thereafter, the Administrative Judge shall process the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020001056 9 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 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020001056 10 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. 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 (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 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408) You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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. 2020001056 11 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 June 2, 2021 Date