[Redacted], Felicia A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Aug 17, 2021

Appeal No. 2020002013 (E.E.O.C. Aug. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felicia A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020002013 Hearing No. 541-2014-00114X Agency No. DIA-2013-00097 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 December 3, 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 (EPA) of 1963, as amended, 29 U.S.C. § 206(d) 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 was employed at the United States Northern Command (NORTHCOM) in Colorado Springs, Colorado. She was hired on September 28, 2009 and assigned to the J24S Branch as a developmental employee at Pay Band 2/General Grade (GG)-10 and assigned to work on environmental/natural disasters for the Defense Support of Civil Authorities (DSCA) mission. Complainant was the Environment Team Lead for the J24S Branch. Complainant filed a complaint alleging discrimination and harassment based on sex (female) when: 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. 2020002013 2 1 (a). on September 1, 2010, S1, J23S Branch Chief and Complainant’s supervisor, did not assign any clear duties or responsibilities for nearly two months after Complainant’s assignment to J23S; (b). on one occasion sometime between November 3, 2010 to December 21, 2010, S2, J23S Deputy Branch Chief, joked within the office about why Complainant attended funded Spanish- language tutoring, stating “she would never be allowed to work on the Mexico initiative [on behalf of DIA].” The Mexico initiative would provide career enhancing benefits; (c). on April 15, 2011, S1 requested that Complainant treat S2 as her acting supervisor. S1 also relinquished his non-Mexico duties and assigned half of them to Complainant, which further excluded her from the Mexico initiative; (d). in April 2011, S1 advised Complainant that she would not be able to support the Mexico initiative and would give up her workspace to accommodate others who were assigned to support the Mexico initiative; (e). in July 2011, Complainant asked why she could not work the Mexico initiative and S1 told her that there was barely enough work to keep the remaining J23S officers employed; (f). from mid-April 2011 to August 2011, S1 advised all J23S officers assigned to support the Mexico initiative that they had to be scheduled for a six-month rotation to Mexico. However, Complainant was never scheduled for a rotational assignment. S2 explained that the Mexican host had no available billeting for females, which excluded Complainant from working the Mexico initiative; (g). from February 2011 to August 2011, S1 moved Complainant out of the J23S office and rotated her through a series of temporary desks, including no desk at all for a brief period, while her previous desk within J23S largely stood empty; (h). on or before September 25, 2011, Complainant transitioned from a Pay Band 3 (PB3) to a GG-11 grade level, while her male counterparts who were also PB3s were transitioned to GG- 13s; (i). in mid-2011, S1 discouraged Complainant from applying for an empty PB3 billet that was transferred from J24S to J23S, effective September 1, 2010; (j). in January 2012, on at least three occasions, S1 removed Complainant’s nameplate from her assigned workstation, during an office move from Building 920 to Building 2, but this did not prevent her workstation from being installed at the new location; (k). Between September 2011 and September 2012, Complainant, as the Operational Staff Officer (OPSO), sought to remove J23S from the tasking system to ensure J23 would meet their suspense dates. 2020002013 3 S1 complained to Complainant’s new supervisor, A1, that the previous OPSO never had this issue with the tasking system and suspense dates, which Complainant alleges is not a true statement; (1). from September 20, 2012, through mid-2013, P1, J25 Civilian Human Resources Representative, failed to provide Complainant with a noncompetitive promotion, even after one had been recommended by B1, Mission Manager, her rater during this time period; (m). in September 2013; S1 joked in the J23S workspaces about the likelihood of personnel being assigned to Complainant following a reorganization suggesting that it would be unlikely that Complainant would expect having personnel assigned to her as a supervisor; and (n). on January 21, 2014, S1 commented openly in the J2 workspaces that he did not want “another EEO complaint.” Complainant also alleged that she was not afforded equal pay based on sex beginning in September 2011 to the present, when: 2. the Agency paid her at the GG-11 grade level for performing substantially similar work, in comparison to her male counterparts, within the J23S Division, who were paid at the GG-13/14 grade level. This was based on the Agency’s transition, in September 2011, from Pay Band to GG, during which time Complainant was transitioned from PB3 to GG-11, while her male coworkers were transitioned from PB3 to GG-13. 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 requested a hearing. The Agency filed a motion for summary judgment, which was opposed by Complainant. The AJ granted the Agency’s motion and issued a decision without a hearing in favor of the Agency. This appeal followed. The AJ found the following facts: at the time of Complainant’s hire, the record indicates that it had been nine years since she had previously worked for the federal government. She worked for the Central Intelligence Agency from 1986 until 2000, the last four years at the GS-13 level. She was hired into the J24S Branch in September 2009 to work on the DSCA mission. The J24S Branch was later dissolved in August 2010, and the DSCA mission was absorbed into Branch J23S. Complainant was transferred to the J23S Branch on or about September 1, 2010, and S1 became her supervisor. On October 10, 2010, Complainant received a non-competitive promotion from Pay Band 2/GG- 10 to Pay Band 3/GG-1l and reached her position’s maximum grade equivalent of GG 11 as a result. Her SF-50 stated: “Increase is equivalent to a promotion to GG-11,” and stated that her Pay Band 3 position was equivalent to GG-11, Step 10. 2020002013 4 The SF-50 also stated that “you will only be eligible for a higher GGE if you meet the necessary qualifications and are competitively selected for a vacant position advertised at a higher GGE.” At J23S, Complainant continued working on the DSCA mission and S1 gave her an overall “Excellent” rating for the entire rating period of September 1, 2010 to August 31, 2011. Complainant’s coworkers in the J23S Branch were all male. S1 now oversaw two missions: the DSCA mission to which Complainant continued being assigned and the Mexico mission. Complainant, S1 stated, was transferred to J23S in order to continue her DSCA work dealing with events such as hurricanes and wildfires, intelligence preparation of the battlefield, and open source. She was not transferred to his branch to work on the Mexico mission, which involved operational and tactical military operations. Complainant wanted, however, to work on the Mexico mission. S1 stated that he did not personally assign employees to the Mexico mission; rather, those assignment decisions were directed from above him. Complainant and her male counterpart, C1, were both excluded from the Mexico mission and were tasked with working on the DSCA mission. According to Complainant, S1 split the DSCA mission duties between her and C1. Both Complainant and C1 worked on the DCSA mission until S1 was relieved of the DSCA mission, and it was transferred to the J23I Branch. Complainant and C1 were both transferred to branch J23I in September 2011 and continued their DSCA mission work. Regarding claim 1(a), Complainant maintained that she was not given clear duties by S1 for two months after she transferred to his branch. S1 stated that, during the time Complainant arrived at the J23S branch, he was trying to juggle two mission sets which were both new to him and he believed all five of his employees would have the same opinion regarding having no clear duties while the branch was in flux. With respect to claim 1(c), on April 15, 2011, S1 requested that Complainant treat S2 as her acting supervisor. S1 also asked S2 to supervise C1 as well. At this time, S1 relinquished his non-Mexico mission duties and assigned half of these duties to Complainant and half to C1. Regarding claim 1(d), Complainant alleged that from mid-April 2011 to August 2011, S1 advised all J23S officers assigned to the Mexico mission that they would be scheduled for a six- month rotation to Mexico. Complainant was not scheduled for a rotational assignment to Mexico because she was not working on the Mexico mission. Complainant maintained that S2 told her that the Mexican host did not have housing available for females. The record indicates that, initially, there were no female barracks to house females in Mexico. These accommodations were subsequently built three to six months later and female employees did go to Mexico. Females were not excluded from the Mexico mission. The AJ found that Complainant was not scheduled to go to Mexico because she was not working on the Mexico mission, not because of the housing situation or because she was female. Complainant acknowledged that none of the males in J23S ever served a six-month rotation in Mexico. 2020002013 5 C2, male, was hired on July 3, 2011 and joined J23S. C2 was already a federal employee in a Pay Band 4 position when he was hired, and he transferred without a break in federal service. C2 was hired into a Pay Band 3 position, the equivalent of GG-13. Also, in July 2011, A1 joined J23S and later became Complainant’s supervisor. A1 stated that he realigned the DSCA mission from J23S to J23I and, as a result, he transferred Complainant to J23I and gave her substantive roles. After her reassignment to J23I in September 2011, A1 appointed Complainant as an OPSO. S1 stated that A1 reassigned Complainant and C1 to another branch because he, S1, could no longer focus on two missions at once. Because Complainant and C1 were not working on the Mexico mission, S1 and his supervisor, S3, the Deputy Division Chief, decided to move Complainant’s and C1’s work areas so that their desks could be used by employees staffing the Mexico mission, i.e., claim 1(d). The original J23S room where Complainant and C1 sat was entirely dedicated to the Mexico mission. S3 stated that many individuals were moved during this time, not just Complainant. With respect to claims 1(g) and 1(j), the record indicates that S3 was responsible for the new seating arrangements. In January 2012, after Complainant and C1 had transferred out of the J23S branch and onto J23I, Complainant’s nameplate was moved out of the J23S Mexico mission room three times. C1’s nameplate was also moved. S1 stated that their nameplates were moved because of the seating map he received from S3, and that a total of three nameplates were moved due to this seating chart. Complainant complained to S3 about both her and C1’s nameplates being moved, and the nameplates were not moved again after she spoke with S3. Regarding claim 1(h), effective September 25, 2011, the entire Agency transitioned from the Pay Band system back to General Grade levels. All employees were transitioned to GG equivalent position or back to the grade they held prior to the transition to pay bands. The pay band system lasted only one year. No promotions were made as part of the transition from pay bands to grades. Although Pay Band 3 encompassed GGs 11 - 13, Complainant’s billet when she was hired was capped at GG-11 (Step 10). When she was promoted to Pay Band 3, her SF-50 stated that her position was a GG-11 equivalent position. Therefore, effective September 25, 2011, Complainant was transitioned from a Pay Band 3 to GG-11, Step 10, in accordance with her billet cap. As a result, Complainant reverted to a GG-11 with no change in pay. Complainant appealed her transition to a GG-11 to the transition appeal board on October 5, 2011, and requested to be transitioned to a GG-13 instead since she had been a GS-13 at the CIA ten years earlier. Complainant’s appeal was reviewed and denied on January 13, 2012, by the three-member appeal board which found that she had properly transitioned back to GG-11, with no change in her general grade level. Complainant requested a desk audit, but her request was denied at that time because she had filed an appeal of the transition decision. A1 later pushed for a desk audit in January 2013, but, on February 22, 2013, Complainant told her supervisor at that time, B1, to cancel her request for a desk audit because she wanted to transfer instead. As a result of the transition in September 2011, C1 reverted to GG-13 from being a Pay Band 4/GG-13, and C2 reverted to GG-13. Both C1 and C2 were GG-l3s when they went into the pay band series and they both came out as GG-13s. 2020002013 6 On September 9, 2012, A1, now the J2 Intelligence Deputy, arranged a detail for Complainant to serve as a J2 Deputy Mission Manager for Maritime and Arctic. B1 was her rater. This detail ended on April 20, 2013. On April 21, 2013, Complainant was permanently assigned to the position of Deputy Mission Manager with B1 as her permanent rater. B1 and A1 were both supportive of a desk audit for Complainant; however, on May 8, 2013, S4, the Rear Admiral, announced that there would be a moratorium on desk audits due to funding constraints. During another reorganization initiated by the newly arrived Brigadier General, all 12 Mission Manager positions were eliminated, and Complainant was transferred in October 2013, to another position. Regarding claim 1(l), Complainant alleged that she was denied a non-competitive promotion. B1 stated that he recommended a non-competitive promotion up his chain of command to the Chief of Staff. B1 did not have authority to approve a non-competitive promotion. Those determinations are made by the Director of Intelligence. On September 20, 2013, Complainant’s packet was submitted to the Chief of Staff, but on October 3, 2013, he denied the request because of funding issues. In January 2014, Complainant raised the issue of the non-competitive promotion with the Brigadier General who told her he was opposed to the concept of non- competitive promotions. The AJ also found that there was no evidence to suggest that S1 discouraged Complainant from applying for another position, i.e., claim 1(i) and was disrespectful of her in a staff meeting by rolling his eyes (after he was no longer her supervisor) because of her sex. Moreover, the AJ found that this was also true regarding the two “jokes” Complainant believed were made at her expense, i.e., claim 1(b), where Complainant alleged that S2 joked with another employee about why Complainant attended Spanish language classes since she would not be allowed to work in Mexico, and claim 1(m), where Complainant alleged that in September 2013, S1 joked about personnel being assigned to her. In both instances, the AJ found that Complainant was not present when these jokes were made, and that the record was devoid of any indication that the jokes were made because of Complainant’s sex. Finally, regarding claim 1(n), where S1 allegedly stated that he did not want another EEO complaint. The AJ noted that Complainant did not hear this comment herself and did not know to whom S1 was referring. The AJ found that even if referencing Complainant, there was no evidence this comment was made because of her sex. Regarding Complainant’s Equal Pay Act claim, the AJ found that Complainant could not establish a prima facie case under the Equal Pay Act because she did not demonstrate that she was performing duties that were substantially equal, with equal skill, effort and responsibility, to a higher paid male employee. The AJ’s determination was based on the fact that Complainant was hired in 2009 as a developmental employee (Pay Band 2, GG-10 equivalent). After one year, she was given a non-competitive promotion to Pay Band 3, GG-11 equivalent level. Her position’s maximum grade equivalent was GG-11, and her SF-50 specifically stated that she would only be eligible for a higher GG if she met the necessary qualifications and was competitively selected for a vacant position advertised at a higher GG. 2020002013 7 Although Complainant pointed to C1 and C2 as comparators, the AJ noted that, unlike Complainant, C2 was in a Pay Band 4 position at a different agency when he was hired by J23S and he transferred without a break in service. C2 accepted a downgrade to a Pay Band 3, GG-13 equivalent position when he was hired. Therefore, he was hired at a higher GG equivalent than Complainant. He worked on the Mexico initiative while Complainant had completely different duties. Complainant and C2 only worked in the same branch for a short period of time before Complainant was transferred. The AJ found that Complainant did not demonstrate that her duties were substantially equal to C2 or that they had the same level of responsibility or skill. C1 was hired by the Agency in 2007, two years before Complainant, as a GG-13 in a higher graded position than Complainant’s. C1 was a Pay Band 4. The AJ found that Complainant did not demonstrate that her duties were substantially equal to C1 or that they had the same level of responsibility or skill. Furthermore. Complainant’s duties and work environment changed in July 2011, when her new supervisor, A1, appointed her as an OPSO in a different branch. Complainant no longer had a male comparator at that point. Subsequently, she was detailed to the Maritime and Arctic Branch in September 2012, and again had no male comparators. The AJ found that the crux of Complainant’s Equal Pay Act argument was that she was transitioned back to a GG-11 when the Agency changed from pay bands to grade levels while C1 and C2 were transitioned to GG-13s. However, as noted above, the AJ found that when the Agency transitioned back to grade levels, both C1 and C2 reverted to their previous GG-13 equivalent levels while Complainant reverted to her previous GG-11 equivalent level. Complainant, the AJ found, provided no justification for why she should have been granted a noncompetitive promotion from a GG-11 position to a GG-13 position as part of the transition. ANALYSIS AND FINDINGS At the outset, we note that the AJ dismissed claim 1(h) on the grounds of untimely EEO Counselor contact. The record indicates that, on September 25, 2011, Complainant transitioned from a Pay Band 3 to GG-11 position. This was a discrete act. Complainant did not contact an EEO counselor until August 2013, almost two years later. We agree that this claim was properly dismissed pursuant to 29 C.F.R. §1614.107(a)(2). We shall, however, examine this claim as a timely raised Equal Pay Act claim (claim 2) herein. AJ’s Issuance of a Decision Without a Hearing We must determine whether the AJ appropriately issued the decision without a hearing. 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). 2020002013 8 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). We have carefully reviewed the record and find that it is adequately developed. 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. We find that the AJ correctly determined that there were no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). To meet her ultimate burden of proving that the Agency’s actions were discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established a prima facie case of discrimination based on her sex, we find that the Agency articulated, legitimate, nondiscriminatory reasons for its actions as were set forth in detail above with respect to the discrete claims. We find that Complainant simply has not provided any evidence that raises a genuine issue of material fact that her sex played any role in these matters. 2020002013 9 Harassment With respect to her hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with regard to 1(a), 1(c), 1(d), 1(f), 1(g), 1(j), and 1(l). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). We find that even when the facts are viewed in a light most favorable to the Complainant, Complainant has not demonstrated that the harassing incidents were sufficiently severe or pervasive to constitute a hostile work environment or were directed at her because of her sex.2 Equal Pay Act 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 reconsideration denied, 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. We find that Complainant has not provided any evidence that raises a genuine issue of material fact that she met her prima facie burden of demonstrating that her work as a GG-11 level employee had the same level of skill or responsibility as C1 and C2 (or any male employee), her higher grade level coworkers. Therefore, Complainant has failed to establish a violation of the EPA. 2 With regard to claim 1(n), Complainant’s allegation that S1 stated that he did not want another EEO complaint, although Complainant did not allege discrimination based on reprisal, we do not find that S1’s comment, assuming it was made as alleged, would have been reasonably likely to have deterred either Complainant or other employees from engaging in protected EEO activity. The alleged comment was overheard (not by Complainant) and not directed at any particular individual. 2020002013 10 CONCLUSION We AFFIRM the Agency’s final order. 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. 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). 2020002013 11 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 alterthe 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 August 17, 2021 Date