[Redacted], Chara S., 1 Petitioner,v.Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency (FEMA)), Agency.

Equal Employment Opportunity Commission

Feb 17, 2021

Appeal No. 0120161925 (E.E.O.C. Feb. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chara S.,1 Petitioner, v. Alejandro Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency (FEMA)), Agency. Petition No. 2020003945 Request No. 0520180134 Appeal No. 0120161925 Agency No. HS11FEMA00055 DECISION ON A PETITION FOR ENFORCEMENT On June 26, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for enforcement to examine the enforcement of an Order set forth in EEOC Request No. 0520180134 (April 5, 2018). The Commission accepts this petition for enforcement pursuant to 29 C.F.R. § 1614.503. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an intermittent employee in the Iowa Closeout Center in West Des Moines, Iowa. Petitioner began working for the Agency in 2008 and worked intermittently from January 3, 2010 to November 19, 2010. Prior to November 19, 2010, Petitioner applied for the position of Cadre of On-Call Response to Recovery (CORE) Public Assistance Closeout Specialist, GS-11/12. There was more than one such position to be filled. In October 2010, Petitioner learned that she was not selected for a CORE Public Assistance Closeout Specialist position, although she was deemed qualified. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2020003945 2 On March 16, 2011, Petitioner filed an equal employment opportunity (EEO) complaint in which she alleged that the Agency discriminated against her on the bases of race (African-American) and color (Brown) in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. when it failed to select her for one of the CORE Public Assistance Closeout Specialist positions. Following investigation of her EEO complaint, Petitioner requested a hearing before an EEOC Administrative Judge (AJ). Following a hearing, on September 26, 2014, the assigned AJ issued a decision finding that evidence established the Agency discriminated against Petitioner when it did not select her for one of the vacant CORE Public Assistance Closeout Specialist positions. In finding discrimination, the AJ concluded that Petitioner was entitled to make whole relief pursuant to 29 C.F.R. § 1614.501. On October 29, 2014, the Agency issued a final decision adopting the AJ's finding of discriminatory non-selection, as well as the specific remedies ordered. Petitioner filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120161925. She argued, despite “multiple attempts” and “countless communications” and requests, the Agency failed to fully implement the ordered relief and has provided no meaningful response to Petitioner's request to address “deficiencies” in compliance. The Agency argued that Petitioner's appeal was improperly before the Commission and that it had complied with the AJ's orders to the extent it could and that its failure to comply was due to Petitioner's failure to provide the Agency with information. The decision for EEOC Appeal No. 0120161925 addressed the remedies awarded by the AJ and considered whether the Agency complied with the AJ's orders. As to the job offer, the appellate decision noted that the Agency closed down its Des Moines, Iowa facility in November 2013, before the AJ issued his decision on September 26, 2014. The AJ ordered the Agency to offer to promote Petitioner to the position of Public Assistance Closeout Specialist, GS-11, in West Des Moines, Iowa or some other mutually agreeable position/location. The appellate decision held that the Agency failed to provide evidence that it offered a “mutually agreeable” position. The decision then turned to the Agency's award of back pay. The decision noted that the record was not complete or clear in order to enable the Commission to properly determine back pay. The decision indicated that the record the Agency provided showed that Petitioner had already achieved the GS-11 level prior to the non-selection. As such, it stated that the record did not explain why Petitioner would not have received a higher level of pay. Similarly, the appellate decision noted with respect to the Thrift Savings Plan (TSP) that Petitioner had reached out to an Agency contact regarding TSP contributions but there was no information in the record concerning the result of Petitioner's contact. The appellate decision noted that Petitioner may be entitled to overtime and other benefits as well as adverse tax consequences compensation. Based on the Agency's failure to provide an adequately developed record, the decision in Appeal No. 0120161925 found that the matter should be remanded to the Agency for further clarification regarding its compliance with the AJ's orders. Subsequently, the Agency requested reconsideration, which was docketed as EEOC Request No. 0520180134, challenging the appellate decision's analysis. The Agency argued that Petitioner was not at the GS-11 level at the time of the non-selection. 2020003945 3 However, upon review of the record, the reconsideration decision noted that the Agency included a copy of Petitioner's Standard Form 50 indicating that Petitioner was paid at the GS-11, step 1 level by October 2010, at the time of the non-selections at issue. The Agency also argued that Petitioner would have been terminated by November 29, 2013, based on the closure of the Iowa facility. The reconsideration decision found that when the Agency had fully adopted AJ's decision including remedies and the Agency did not raise the November 2013 facility closure in response to Petitioner's appeal. As such, the reconsideration decision found the AJ's order providing for an “offer to promote Petitioner to the position of Public Assistance Closeout Specialist, GS-11, in West Des Moines, Iowa (or some other mutually agreeable position/location)” stands. The Agency also challenged the appellate decision's findings regarding benefits and overtime. The reconsideration decision found the decision in Appeal No. 0120161925 remains the Commission’s decision. In pertinent part, the April 5, 2018 decision in 0520180134 ordered the Agency: To the extent that it has not already done so, the Agency is ordered to take the following remedial actions within one hundred twenty (120) calendar days of the date of this decision: 1. The Agency shall offer to promote [Petitioner] to the position of Public Assistance Closeout Specialist GS-11 in West Des Moines, Iowa (or some other mutually agreeable position/location), within 30 days. [Petitioner] shall be given a minimum of 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless [Petitioner] can show that circumstances beyond her control prevented a response within the time limit. 2. The Agency shall determine and pay [Petitioner] back pay (with interest, if applicable) and other benefits due [Petitioner] pursuant to 29 C.FR. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The Agency's determination shall be based on the fact that, absent discrimination, [Petitioner] would have been selected for Public Assistance Closeout Specialist GS- 11 in October 2010, and subsequently would have received all career ladder promotions to which an employee who performed in a fully successful manner was entitled. If [Petitioner] declines to accept the promotion with the Agency, the back pay period for the Public Assistance Closeout Specialist GS-11 position shall end on the date she declines the offer of promotion. The Agency shall also pay compensation for the adverse tax consequences of receiving back pay as a lump sum. [Petitioner] has the burden of establishing the amount of increased tax liability, if any. Once the Agency has calculated the proper amount of back pay, [Petitioner] shall be given the opportunity to present the Agency with evidence regarding the adverse tax consequences, if any, for which [Petitioner] shall then be compensated. 2020003945 4 The Agency shall provide to [Petitioner] a clear and detailed plain language explanation of its back pay calculations, including the calculation of all benefits provided to [Petitioner]. The Agency shall also provide documentation supporting its calculations and information concerning who prepared the computations and any relevant Agency policy or Office of Personnel Management guidelines. The Agency shall provide [Petitioner] with a reasonable opportunity to respond to its back pay and other calculations. [Petitioner] must cooperate with the Agency in providing information requested by the Agency where the information is appropriate and relevant to calculating a back pay determination. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to [Petitioner] for the undisputed amount within thirty (30) calendar days of the date the Agency determines the amount it believes to be due. . . . 4. The Agency shall pay [Petitioner]- reasonable attorney fees and costs. Subsequently, Petitioner filed the instant petition for enforcement. Petitioner requested $4,025 in attorney’s fees, stating $1,925 was past due for 7.7 hours (at $250 per hour) between April 13, 2018 and January 29, 2019, and $2,100 was for 8.4 hours (at $250 per hour) between January 30, 2019 and July 14, 2020. Specifically, Petitioner stated the $2,100 was for additional efforts to obtain accurate backpay calculations and a qualifying job offer. Also, Petitioner requested $35,000 as an offer of settlement for backpay considering the Agency’s delay in compliance, and sanctions against the Agency for delaying compliance. Specifically, for sanctions, Petitioner requested $100 per day the Agency delayed in making the required job offer (122 days = $12,200) and $100 per day from June 6, 2018 until payment of the correct backpay award. The Agency stated that it has complied with the Commission’s orders. The Agency stated that it shut down operations in Iowa on November 29, 2013, so that is the end date it used for back pay, and that it offered Petitioner a position at its Kansas, Missouri location. (The Agency stated originally Petitioner was not interested in placement in a GS-11 position, stating she was making more at the outside position she held.) The Agency stated that it hired six selectees from the candidates for the Public Assistance Closeout Specialist position. It stated that it used the personnel actions of the comparator who worked the longest with the Agency (C1), from October 24, 2010 to November 29, 2013, and mimicked her personnel actions for Petitioner’s backpay calculations. The Agency stated that it deducted Petitioner’s annual outside earnings; mandatory employee contributions of Federal Employees’ Retirement System (FERS), Social Security, Medicare, and Federal Income Tax Withholdings; as well as State Income Tax Withholdings. The Agency stated that Petitioner did not respond to inquiries about whether she wanted to contribute to her Thrift Savings Plan. 2020003945 5 The Agency stated, following the reconsideration decision, it worked with Petitioner’s attorney and on December 3, 2018, made a second job offer for an IC-11/Step 7 Information Technology Project Manager in Winchester, Virginia.2 The Agency stated that Petitioner accepted the offer but then changed her mind. The Agency stated that it calculated 412 hours of annual leave (4 hours per pay period for October 24, 2010 through April 21, 2012 and six hours per pay period for April 22, 2012 through November 30, 2013). The Agency stated, on March 9, 2015, it paid Petitioner $21,062.62 in backpay, which included an annual leave lump sum payout. The Agency stated that it consistently communicated with Petitioner’s attorney and Petitioner used various “delay tactics,” such as abrupt inappropriate demands and failure to provide requested information. Further, the Agency noted that the backpay calculations were a collaboration between it and the National Finance Center and Petitioner cannot pinpoint a deficiency in calculations. In pertinent part, the record provides the information that follows. · Petitioner worked as a Disaster Assistance Employee Local (no indicated grade or step level on personnel action) at an annual salary of $56,349 for 1,684 hours in pay status between January 3, 2010 and November 19, 2010. The Agency terminated Petitioner’s intermittent appointment on November 19, 2010, citing “job completed.” · The Agency processed a Notification of Personnel Action (SF-50) for Petitioner effective October 24, 2010 converting her from Disaster Assistance Relief - Local (no grade or step level indicated - $56,349) to Grade 11/Step 1 ($57,408). · The Agency processed an SF-50 for Petitioner effective October 23, 2011 for a within- grade increase from Grade 11/Step 1 ($57,408) to Grade 11/Step 2 ($59,231). · The Agency processed an SF-50 for Petitioner effective October 12, 2012 for a within- range increase from Grade 11/Step 2 ($59,321) to Grade 11/Step 3 ($61,234). · The Agency processed an SF-50 for Petitioner effective February 10, 2013 for promotion from Grade 11/Step 3 ($61,234) to Grade 12/Step 1 ($68,809). · On January 6, 2015, the Agency provided Petitioner a tentative offer of employment for the position of Public Assistance Closeout Specialist, GS-0301-11, Step 1. The next day, on January 7, the Agency informed Petitioner that the position was located in Kansas City, Missouri and that no relocation expenses would be provided. The Agency informed Petitioner that she had until February 5, 2015 to accept the offer. 22 In July 15, 2020 correspondence, Petitioner acknowledged a second “qualified job offer” from the Agency. However, she cited December 2019. 2020003945 6 · On February 6, 2015, the Agency informed Petitioner that it rescinded the tentative offer of employment due to “a lack of response.” · On February 17, 2015, the Agency issued a “final attempt” to gather information on Petitioner’s outside earnings between October 24, 2010 (the effective date selected candidates were placed in position) and February 5, 2015 (the deadline date by which Petitioner did not accept offered position).3 · Petitioner provided the following documentation of outside earnings. W2 Wage and Tax Statement for 2010 for wages of $282. 1040 U.S. Individual Income Tax Return for 2010 for wages of $52,230. 1040 U.S. Individual Income Tax Return for 2011 for wages of $49,418. W2 Wage and Tax Statement for 2012 for wages of $70,217. W2 Wage and Tax Statement for 2013 for wages of $83,908. W2 Wage and Tax Statement for 2014 for wages of $82,798.89. W2 Wage and Tax Statement for 2015 for wages of $27,907.08 from the Department of Homeland Security. · Backpay Calculations Summary4 Backpay for pay period 22 through 25 of 2010, less mandatory employee contributions, outside earnings, and 2010 work as an intermittent local hire with Agency $ 4,745.91 Backpay for 2011, less mandatory employee contributions and outside earnings 6,342.87 Backpay for 2012, less equal outside earnings and retirement contributions ( 475.30) Backpay for pay period 1 through 23 of 2013, less equal outside earnings and retirement contributions ( 518.22) Lump sum annual leave as of October 24, 2010 (412 hours @ $32.97 per hour) less mandatory employee contributions 8,876.91 Interest for 2011 and 2012 back pay amount + 2,090.45 TOTAL BACKPAY AWARD issued by check December 2015 $21,062.62 3 On several occasions, Petitioner’s attorney stated that Petitioner was not comfortable submitting tax information documenting her outside earnings, and it took her some time to do so. 4 The Agency provided a narrative explanation of its compliance actions, as well as Special Payroll Processing System Reports and Detailed Reports for Back Pay Interest Computation. The Agency stated, for 2012 and 2013, it applied outside earnings equal to Petitioner’s gross backpay because Petitioner’s outside earnings exceeded what she would have earned in the Agency’s Specialist position for those years. The negative amounts for 2012 and 2013 reflect retirement contributions. 2020003945 7 ANALYSIS AND FINDINGS The Commission's regulations provide that an aggrieved person may petition for enforcement of a decision issued under its appellate jurisdiction. 29 C.F.R. 1614.503(a). In the instant case, the parties dispute the calculation of backpay, and Petitioner requests additional attorney’s fees and sanctions. Therefore, we shall limit our analysis solely to those matters. Backpay The purpose of a back-pay award is to restore a prevailing Petitioner to the position she would have occupied absent the discrimination. Albemarle Paper Co. v. Moody, 442 U.S. 405, 418-19 (1975); Davis v. U.S. Postal Service, EEOC Petition No. 04900010 (November 29, 1990). A back- pay claimant under Title VII generally has a duty to mitigate damages. See 29 C.F.R. § 1614.501(d). The agency is required to make certain deductions from back-pay awards to ensure that the employee does not receive more in total benefits than he would have received in the absence of the personnel action. The person who has been discriminated against must receive a sum of money equal to what would have been earned by that person in the employment lost through discrimination (gross back-pay) less what was actually earned from other employment during the period, after normal expenses incurred in seeking and holding the interim employment have been deducted (net interim earnings). The difference between gross back-pay and net interim earnings is net back-pay due. Net back-pay accrues from the date of discrimination, except where the statute limits recovery, until the discrimination against the individual has been remedied. Gross back-pay should include all forms of compensation and must reflect fluctuations in working time, overtime rates, penalty overtime, Sunday premium and night work, changing rate of pay, transfers, promotions, and privileges of employment to which the petitioner would have been entitled but for the discrimination. See Ulloa v. U.S. Postal Service, EEOC Petition No. 04A30025 (August 3, 2004)(citing Allen v. Dep’t of the Air Force, EEOC Petition No. 04940006 (May 31, 1996)); Perez v. U. S. Postal Service, EEOC Petition No. 04A40041 (March 3, 2005). The Commission recognizes that precise measurement cannot always be used to remedy the wrong inflicted, and therefore, the computation of back-pay awards inherently involves some speculation. Hanns v. U.S. Postal Service, EEOC Petition No. 04960030 (September 18, 1997). However, uncertainties involved in a back-pay determination should be resolved against the agency which has already been found to have committed the acts of discrimination. Id. The Commission finds that it is reasonable to require the agency to provide a clear and concise “plain language” statement of the formulas and methods it used to calculate petitioner's back-pay. See Vashi v. U.S. Postal Service, EEOC Petition No. 0420060009 (December 5, 2007) (noting that it is the agency's obligation to ensure that its back-pay calculations are clear, supported in the record and in accordance with 29 C.F.R. § 1614.501.) 2020003945 8 Here, the Agency stated that it processed Petitioner's back-pay through the close of operations at its Iowa facility - November 29, 2013. The Agency stated, consistent with federal caselaw, it does not have to process back-pay beyond that date. Most recently in provisions (1) and (2) of the Order in 0520180134, the Commission ordered back-pay through the date Petitioner failed to accept or declined the Agency’s offer of placement, which is February 5, 2015. Thus, consistent with the Agency's statement and the absence of documentation demonstrating otherwise, we cannot find the Agency complied with provisions (1) and (2) of the Order as to backpay and related calculations. Therefore, we GRANT the instant petition and REMAND this matter to the Agency to calculate additional backpay and benefits from November 30, 2013 through February 5, 2015, and corresponding interest amounts; to issue a detailed explanation of how the additional amounts were calculated; and to issue an award of additional backpay, restoration of benefits, and interest, if appropriate. See Goldberg v. Dep't of State, Petition No. 0420100006 (September 23, 2011). We note the record contains Petitioner’s 2013, 2014, and 2015 W2 Wage and Tax Statements for wages of $83,908, $82,798.89, and $27,907.08, respectively. The Agency is required to make certain deductions from back-pay awards to ensure that an employee does not receive more in total benefits than she would have received in the absence of the personnel action, hence, Petitioner may need to submit additional information regarding outside earnings, such as a 1040 U.S. Individual Income Tax Return, particularly for 2015. Neither party should prolong the calculations unnecessarily. Lastly, Petitioner’s request for $35,000 as settlement for backpay is outside the confines of this petition for enforcement. Attorney’s Fees In appropriate circumstances, this Commission may award a Petitioner reasonable attorney’s fees and other costs incurred in the processing of a complaint regarding allegations of discrimination in violation of Title VII. See 29 C.F.R. § 1614.501(e)(1). Indeed, a finding of discrimination raises a presumption of entitlement to an award of attorney's fees, and any such award of attorney's fees or costs must be paid by the agency that committed the unlawful discrimination in question. See 29 C.F.R. §§ 1614.501(e)(1)(i), (ii). The Commission, from the hearing stage through the reconsideration decision, ordered reasonable attorney’s fees for the processing of the instant complaint. Here, Petitioner requested $4,025 in attorney’s fees, stating $1,925 was past due for 7.7 hours (at $250 per hour) between April 13, 2018 and January 29, 2019 and $2,100 was for 8.4 hours (at $250 per hour) between January 30, 2019 and July 14, 2020. The former amount of $1,925 began for a period shortly after issuance of our reconsideration decision. Petitioner stated the latter amount of $2,100 was for additional efforts to obtain accurate backpay calculations and a qualifying job offer. To the extent that the Agency has not already paid the aforementioned amounts, we find $4,025 consistent with the Commission's prior order. See 29 C.F.R. § 1614.501(e)(2)(ii)(B); see also Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Also, we find attorney’s fees and costs in furtherance of this petition appropriate. 2020003945 9 Sanctions For sanctions, Petitioner requested $100 per day the Agency delayed in making the required job offer (122 days = $12,200) and $100 per day from June 6, 2018 until payment of the correct backpay award. Notwithstanding Petitioner’s contentions, we decline to sanction the Agency here. We do not find the record supports sanctions against the Agency at this time. We note that the record shows that the Agency consistently communicated with Petitioner, via her Attorney, and Petitioner was less than cooperative at times in providing documentation of outside earnings to calculate backpay and benefits. Further, the record suggests, for at least two years (2013 and 2014), Petitioner’s outside earnings exceeded backpay that would have been earned but for discrimination. Hence, any additional backpay will probably be limited. CONCLUSION We GRANT the petition for enforcement in part and REMAND the matters of (1) backpay and benefits from November 30, 2013 through February 5, 2015 and related calculations and (2) attorney’s fees for April 13, 2018 to January 29, 2019 and January 30, 2019 to July 14, 2020 to the Agency to comply with this decision and the Order below. ORDER Unless otherwise noted, within sixty (60) calendar days of the date this decision is issued, the Agency is ORDERED to take the remedial actions below. Within sixty (60) calendar days of the date this decision is issued; the Agency shall determine the appropriate amount of additional (November 30, 2013 to February 5, 2015) back pay plus interest and other benefits due Petitioner pursuant to 29 C.F.R. §1614.501 and 5 C.F.R. § 550.805. (The Agency shall use February 5, 2015 as the end date for backpay and benefits calculations.) Petitioner shall cooperate with the Agency's efforts to compute the amount of additional back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Petitioner for the undisputed amount within 30 calendar days of the date the backpay decision is issued. Petitioner may contest the Agency's back pay award in accordance with the appellate procedures outlined in the Notice of Rights that will accompany the Agency's final order. To the extent it has not already done so, the Agency shall issue a check representing payment of attorney’s fees and costs for April 13, 2018 to January 29, 2019 and January 30, 2019 to July 14, 2020 to the petitioner’s attorney in the amount of $4,025. 2020003945 10 The Agency shall calculate and pay attorney’s fees and cost for the instant petition for enforcement as directed in the “Attorney’s Fees” statement below. 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 implementation of the corrective actions ordered. ATTORNEY'S FEES (H1019) If Petitioner has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. 2020003945 11 PETITIONER’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 Petitioner’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 February 17, 2021 Date