[Redacted], Jaqueline L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionAug 3, 2021Appeal No. 2020002342 (E.E.O.C. Aug. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaqueline L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002342 Agency No. 200J04372019102212 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 31, 2019 Final Agency Decision (“FAD”) concerning an 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Clinical Dietetic Technician (“CDT”), GS-0640-07 (Probationary), in the Nutrition and Food Service ("NFS") Line for the Fargo VA Health Care System in Fargo, North Dakota. On May 14, 2019 Complainant filed a formal EEO complaint alleging that she had been subjected to a hostile work environment/harassment and discrimination by the Agency on the bases of physical disability (carpel tunnel syndrome), age (early 60s) and reprisal for prior protected activity 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. 2020002342 2 1. From October 14, 2018 to January 28, 2019, Complainant's first-level supervisor (Sla), Supervisory Clinical Dietician, delayed granting her request for a reasonable accommodation. 2. On January 28, 2019, she was subjected to disparate treatment in connection with the Agency terminating her employment during her probationary/trial period. 3. From October 14, 2018 to January 28, 2019, she was subjected to a hostile work environment as evidenced by the incidents in Claims 1 and 2, along with the following incidents: a. From October 14, 2018 to January 28, 2019, Sla increased Complainant's keyboarding duties and told Complainant that she needed to "work faster, it was taking her "too long to master the job," and "nobody likes" her. b. On December 19, 2018, Complainant was issued a written counseling.2 At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record provides the following relevant facts: Complainant’s first level supervisor was the Clinical Nutrition Manager, a position that was held by two individuals during the relevant time frame (“S1a” and “S1b”). From November 6, 2018 through January 28, 2019, Complainant reported to S1a (age 36). From October 15, 2018 through November 6, 2018, Complainant reported to S1b (age 32). Complainant’s second level supervisor (“S2”) (age 33) was the Chief, NFS. Based on the position description, a Clinical Dietetic Technician (“CDT”) has both administrative and clinical responsibilities. However, the assignments vary, as the Agency’s “[p]riorities are constantly shifting due to changes in program objectives… [and] resource availability.” The position requires strong customer service skills and “the ability to maintain good public relations” not only with respect to interactions while scheduling appointments but in the roles of nutrition counselor and educator both one on one and in group settings. For instance, the CDT must be able “to plan and implement training programs that target an audience composed of individuals with varying degrees of literacy and learning capabilities.” 2 The Agency’s May 23, 2019 Notice of Partial Acceptance properly dismissed Claim 2(b) as a disparate treatment claim pursuant to C.F.R. §1614.107(a)(2), untimely EEO contact. 2020002342 3 Significantly, the CDT “is responsible for scheduling all patient appointments” including reminder calls for patients, follow up calls for no-shows, managing a wait list, coordinating with other providers, and using the Agency’s extensive scheduling platform. The CDT serves as a Telehealth Provider, which also entails scheduling and confirming appointments, as well as scheduling the use of rooms and equipment. Under the supervision of a registered dietician, the CDT also “plans, schedules and presents individual and group instructions.” On September 11, 2018, Complainant underwent a New Applicant Provider Exam with Occupational Health (“OH”) and received a referral from physician stating that Complainant had “no limiting conditions” for the position of CDT but she may need a reasonable accommodation.” On an accompanying form, Complainant responded “no” as to whether she had concerns that she could perform the duties of the position, but requested the following reasonable accommodations: “scooter after surgery for 2 months, [and an] under tray keyboard.”3 On October 14, 2018, Complainant arrived for her first day of work and notified S1a that she required a reasonable accommodation. Within minutes, S1a contacted OH and requested an ergonomic evaluation of Complainant’s workstation as soon as possible. S1a provided Complainant with an ergonomic assessment questionnaire which employees had to submit to OH as a prerequisite for an ergonomic evaluation. On November 2, 2018, Complainant “took matters into her own hands” and visited OH and requested a reasonable accommodation. She was provided with the contact information of Reasonable Accommodations Coordinator (“RA”) and encouraged to contact him with her request. OH received Complainant’s completed questionnaire on November 9, 2018. On November 6, 2018, having taken no further action on Complainant’s request, S1a went on extended leave. It does not appear S1a briefed S1b on Complainant’s accommodation request, but Complainant testifies that she immediately notified S1b of her impairments. Complainant alleges that under S1b, her responsibilities became 90% scheduling. During her first few weeks on the job, Complainant performed minimal keyboard work because she was attending new employee orientation and she was not provided with the keys required to work on scheduling until early November. S1b assured Complainant that the time she spent on scheduling would decrease as she improved her efficiency. S1b provided Complainant with suggestions and names of colleagues who could offer advice, but Complainant did not pursue this. Her carpel tunnel syndrome flared up and she said working became painful. Complainant’s wrists swelled and she took medication and kept an ice pack at work to help alleviate the pain. On November 2 and 16, 2018, OH provided Complainant with a foot riser, lumbar support, an ergonomic keyboard, PIV reader, desk document holder, headset with cables, phone foam wedge, ergonomic mouse, and assistance adjusting her chair. 3 Complainant indicates in the record that she requested accommodations related to her short stature of 4’11,’’ because standard office furniture did not fit her, and to undergoing foot surgery in or about December 2018. 2020002342 4 Following a November 30, 2018 assessment of Complainant’s workspace, OH notified Complainant’s supervisors and RA and instructed them to be in touch with Complainant. It does not appear any additional changes were made or requested by Complainant. Meanwhile, on multiple occasions, including November 21 and December 3, 2018, Complainant was verbally counseled about incomplete assignments, deficiencies in her work, lack of progress in her position, continued failure to complete mandatory training, and her rude demeanor. S1b provides multiple examples of Complainant’s demeanor, including two complaints from veterans who spoke with her. Complainant told S1b that she felt “attacked” and challenged S1b’s assignment of 90% scheduling, suggesting they check with HR and S2 regarding her job duties. S1b felt Complainant’s tone was “threatening” and reported the counseling to S2, also noting that Complainant had not followed any of the suggestions she previously offered to help with accuracy and efficiency. On December 19, 2018, Complainant received a Letter of Counseling, detailing concerns about her conduct and performance. The letter concluded by reminding Complainant, “you are in the final phase of the selection process for your position…During the probationary period, you need to portray your very best skills and efforts.” The Letter further explained that the Agency can initiate an action to separate a probationary employee for demonstrating, among other things, performance deficiencies, a lack of cooperativeness, or “some other reasons deemed appropriate by the employer.” Complainant filed a work injury form with OH on December 21, 2018. On January 28, 2019, Complainant was “blindsided” when she received Notice of Termination During Probationary Period. The decision to terminate was “due to [Complainant’s] failure to progress in job training, failure to complete mandatory training on time, poor communication with management, rude demeanor and unreceptiveness to suggestion and direction.” The letter cited “numerous” emails and verbal counseling on these matters. It further revealed that even after Complainant’s December 19, 2018 written counseling, she “continued to demonstrate an inability to perform [her] job duties specifically related to scheduling and communication.” On appeal, Complainant argues that the Agency “would not have terminated her employment had it provided her requested accommodation.” She appears to allege that the Agency failed to engage in the interactive process, when it did not “interact with her in good faith.” She points out that a reasonable accommodation could have been fulfilled “nearly instantaneously,” and given her September 11, 2018 request, there is no justification for the Agency failing to provide accommodations the day she arrived at work, much less the nearly one month it took to provide the accommodations.4 Alternately, Complainant alleges that S1b erroneously interpreted her request for a reasonable accommodation as a request for an ergonomic evaluation of her workstation. 4 In making this argument, Complainant omits reference to her nearly one-month delay in submitting the ergonomic evaluation questionnaire. 2020002342 5 The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Reasonable Accommodation - Claim 1 Under the Rehabilitation Act and the Commission's regulations, an agency is required to make reasonable accommodation of the known physical and mental limitations of a qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §§ 1630.2(o), 1630.2(p). Complainant contends that she was unable to perform the duties of a CDT because of the limitations stemming from her carpal tunnel syndrome, which was exacerbated due to the delay in providing a reasonable accommodation. A reasonable accommodation is an adjustment or change at work for a reason related to a medical condition. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, No. 915.002, Question 1 (Oct. 17, 2002). When an individual's disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his or her disability and functional limitations. Id. at Question 6. The employer is entitled to know that the individual has a covered disability for which she needs a reasonable accommodation Id. Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has a disability within the meaning of the Rehabilitation Act and that the disability necessitates a reasonable accommodation. Id. If an individual's disability or need for accommodation is not obvious, and she refuses to provide the reasonable documentation requested by the employer, then she is not entitled to reasonable accommodation. Id. The Agency’s EEO Program Manager (“EEO”) (age 35) contends that S1a notified him that Complainant requested an ergonomic evaluation on or about October 15, 2018, and that Complainant stopped him in the hallway to discuss her request on an unspecified date. EEO said that the documentation from the September 11, 2018 exam was insufficient to trigger a request for a reasonable accommodation, and when he requested additional medical documents from Complainant, he received a doctor’s note requesting a standing adjustable desk. 2020002342 6 This was also insufficient because the note did not identify or explain Complainant’s limitations. However, Complainant was provided with the requested desk. The term “qualified” with respect to an individual with a disability means the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position. 29 C.F.R. § 1630.2(m). In the instant case, “essential functions” of Complainant’s position include scheduling and clerical work that require the use of a keyboard. Contrary to Complainant’s repeated assertions that scheduling is only supposed to comprise 50% of her workload, the CDT position description specifies that the proportion of administrative duties to clinical duties would vary unpredictably. Thus, the CDT must be capable of performing essential functions requiring keyboard use during the majority of the workday if needed. Although Complainant does not address this in her arguments, the “essential functions” of the CDT position include communication with patients and their families, one on one and group counseling and providing nutrition training a range of audiences, which all require strong customer service skills. To perform these “essential functions” it is also necessary for Complainant to communicate effectively with colleagues and complete mandatory training. After receiving a request for reasonable accommodation, the employer should engage in an informal process with the disabled individual to clarify what the individual needs and identify the appropriate reasonable accommodation. See EEOC Enforcement Guidance No. 915.002), see also, Abeijon v. Dep’t of Homeland Sec., EEOC Appeal No. 0120080156 (Aug. 8, 2012). Protected individuals are entitled to reasonable accommodation, but they are not necessarily entitled to their accommodation of choice. Castaneda v. United States Postal Serv., EEOC Appeal No. 01931005 (Feb. 17, 1994). The record testimony reflects that S1a responded quickly to Complainant’s October 14, 2018 request, providing her with the necessary documentation and notifying both OH and EEO. Complainant was provided an array of ergonomic equipment, including a desk she requested in November 2018. However, the accommodations do not appear to have been effective, as some of the equipment, including an ergonomic mouse, was never used, and Complainant continued to experience carpel tunnel syndrome flare ups. Complainant also delayed her ergonomic evaluation by failing to submit the ergonomic assessment questionnaire by November 9, 2018. It also appears that she did not provide specific information about her limitations. S2, S1b and S1a acknowledged that they observed Complainant wearing braces on her wrists, but claim that it was not obvious to them that she had an impairment requiring an accommodation. S1a testified that Complainant did not specify the type of accommodation she needed or nature of her limitations when she made her October 14, 2018 request. Similarly, EEO testified that Complainant provided inadequate supporting documentation in response to his request for more information. 2020002342 7 When Complainant’s symptoms worsened despite the reasonable accommodations, she did not ask to change her accommodation to make it more effective. According to S2, Complainant told S1b that she was doing better after she received an adjustable desk. Although the ergonomic evaluation addressed Complainant’s impairments, it is unclear whether S1a provided Complainant with EEO’s contact information. S1a departed for maternity leave on November 6, 2018. It is not clear whether S1a briefed S1b on Complainant’s accommodation request prior to going on leave. Complainant testified that she repeatedly told management that her carpel tunnel syndrome was exacerbated due to the amount of keyboard work she was assigned. Complainant also references times when S1b expressly told her that she “didn’t want to discuss [Complainant’s] medical issues with her.” However, these events would have occurred after Complainant received reasonable accommodations, as she had minimal to no keyboarding assignments prior to November 2, 2018. Even if an agency fails to engage in the interactive process with Complainant, Commission precedent establishes that an agency cannot be held liable solely for a failure to engage in the interactive process. Liability for a failure to engage occurs when it results in the agency's failure to provide reasonable accommodation. Broussard v. United States Postal Service, EEOC Appeal No. 01997106 (Sept. 13, 2002), req. to recon. den., EEOC Request No. 05A30114 (Jan. 9, 2003). See also Bryan R. v. United States Postal Serv., EEOC Appeal No. 0120130020 (Mar. 20, 2015) (finding the agency was not liable for failing to engage in the interactive process with the complainant where there is no reasonable accommodation which could have allowed him to perform the essential functions of his job). The sole purpose of the interactive process is to facilitate the identification of an appropriate reasonable accommodation, and an agency's failure to engage in this process does not give rise to a separate cause of action because the interactive process is not an end in itself. Broussard, EEOC Request No. 05A30114. Here, the record evidence supports that Complainant was not a “qualified individual” able to perform the essential functions of her position with or without accommodation. Furthermore, Complainant did not establish that there was an accommodation available which would have enabled her to perform the essential functions of her position. Although Complainant suggests that she could be assigned different tasks as an accommodation, scheduling is an essential function of her job. Many of Complainant’s other responsibilities also required keyboard usage. Complainant offers no viable reasonable accommodation that would allow her to accomplish the essential functions of her job. Assuming, arguendo, that Complainant identified an effective reasonable accommodation and established that she was a “qualified individual” with respect to the keyboard-related “essential functions” of her position, the Agency stated that Complainant’s termination was due to her “failure to progress in job training, failure to complete mandatory training on time, poor communication with management, rude demeanor and unreceptiveness to suggestion and direction.” Complainant has not shown how the delay in accommodation prevented her from completing her training, and caused her communication and conduct issues, none of which involve the use of her hands and wrists. 2020002342 8 As strong customer service and communication skills are required to perform the essential functions of Complainant’s position, she can arguably be deemed “unqualified” based on her conduct, regardless of performance. Disparate Treatment - Claim 2 A claim of disparate treatment based on indirect evidence 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 or she 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). A probationary employee may be terminated at any time based work performance or conduct during the probationary period under Office of Personnel Management (“OPM”) regulations. See 5 C.F.R. § 315.804, see also Harmon v. Dep’t of Commerce, EEOC Appeal No. 01A33155 (Sept. 11, 2003). Consistent with these regulations, the Commission has long held that probationary employees are “subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category.” Tristan W. v. United States Postal Serv., EEOC Appeal No. 0120152084 (Jul. 11, 2017) citing Complainant v. Dep't of the Treas., EEOC Appeal No. 0120132983 (Jun. 10, 2015), Coe v. Dep’t of Homeland Sec., EEOC Appeal No. 0120091442 (Oct. 7, 2011); Kaftanic v. United States Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988), see also Chadwick S. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120152446 (Dec. 8, 2017). 2020002342 9 It is undisputed that the alleged discriminatory events in the instant complaint occurred during Complainant’s probationary period. The Agency cites Complainant’s performance and conduct as its legitimate nondiscriminatory reasons for terminating her employment during her probationary period, which is consistent with 5 C.F.R. § 315.804 and EEOC case law. Complainant has not established that the Agency’s proffered reasons for terminating her employment during her probationary period were pretext for an underlying discriminatory or retaliatory motive. Rather, she attributes her performance deficiencies to the Agency’s failure to timely provide a reasonable accommodation and does not address the Agency’s rationale as it pertained to her conduct. The record supports that Complainant was unable to perform essential functions of her position with or without an accommodation. Even if this were not the case, the record contains documentation of multiple instances where Complainant was counseled about her performance and conduct yet did not show improvement. Also, Complainant never completed her mandatory training, despite reminders and an extension of two to three weeks. Given the low threshold required for terminating probationary employees, any of the conduct and performance issues cited in Complainant’s termination letter would be acceptable grounds for termination during an employee’s probationary period. Hostile Work Environment - Claims 1, 2 & 3 To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her disability, age, and/or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). Claim 1 will not be included in this analysis because, for reasons previously stated, the Agency is not liable for delaying Complainant’s reasonable accommodation. Claim 2 cannot be included in a harassment analysis because it concerns a personnel decision and because Complainant was unable to establish that the Agency’s legitimate nondiscriminatory reasons for its actions were pretext for discrimination. The allegations in Claim 3 involve routine work assignments, instructions, and admonishments, which are all “common workplace occurrences” that do not rise to the level of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. Likewise, it is well established that instances of a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). 2020002342 10 We emphasize to Complainant that while an employee may prefer to perform certain duties, among others within their work assignment, or may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved. Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency’s finding that Complainant has not established discrimination as alleged is AFFIRMED. 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. 2020002342 11 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 3, 2021 Date Copy with citationCopy as parenthetical citation