[Redacted], Jill M.,1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jul 15, 2021

Appeal No. 2021000550 (E.E.O.C. Jul. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jill M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2021000550 Hearing No. 570201601516X Agency No. EUFY14011 DECISION Following its October 27, 2020 Final Order, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) pursuant to 29 C.F.R. § 1614.403(a). The Agency requests that the Commission affirm its rejection of an EEOC Administrative Judge’s (“AJ”) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a Guidance Counselor, TP-1701-ED-11, for multiple schools in the Agency’s DoDEA-Europe East District, in Kaiserslautern, Germany. Complainant filed a formal EEO complaint alleging discrimination by the Agency on the basis of race (African American) and unlawful retaliation for prior protected EEO activity2 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. 2021000550 2 1. She was subjected to discriminatory/retaliatory harassment: a. From September 2007 through 2013, when the Agency hindered Complainant’s ability to participate in the EEO process; and, b. On August 22, 2013, the Agency issued Complainant a five-day suspension, which was upheld on October 25, 2013. 2. She was subjected to disparate impact when: From 2009 through 2013, she was disciplined by the Agency’s negotiated grievance system, which she alleges is operated, controlled, and structured in a racially biased manner and disproportionately impacts African American Agency employees as compared to similarly situated Caucasian Agency employees. Following 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 EEOC AJ. Complainant timely requested a hearing, an AJ was assigned, and the parties engaged in discovery. On July 18, 19 and 22, 2019, a hearing was held, and the AJ heard testimony from eight witnesses, including Complainant. The AJ issued a decision in favor of Complainant on September 30, 2020, finding that Complainant proved she was subjected to reprisal for prior protected EEO activity, as alleged in Claim 1. The decision also found that Complainant neither provided sufficient evidence of discrimination based on race, nor did she adequately support her claim of disparate impact allegation in Claim 2. The AJ ordered the Agency to pay Complainant $125,000 in non-pecuniary compensatory damages for harm she suffered as a result of the Agency’s retaliatory acts in Claim 1. 2007 - 2008 Ansbach Middle High School (AMHS) - High School Counselor In 2007, Complainant was assigned as the High School Counselor for AMHS, where she reported to Principal of AMHS (“P1”). A substantial portion of Complainant’s duties concerned student transcripts, so almost immediately, Complainant discovered irregularities, including duplicate credits and inflated grades. Notably, the irregularities Complainant identified did not include any reference to discriminatory practices. Complainant informed her immediate supervisor, along with P1, the AMHS Registrar, and AMHS Assistant Principal of her concerns regarding the transcript irregularities. On an unspecified date, a new Assistant Principal (“AP”) arrived to AMHS, and Complainant informed her about the transcript irregularities as well. 2 Nila S. v. Dep’t of Def., EEOC Appeal Nos. 0120142134 (Apr. 20, 2016), Nila S. v. Dep’t of Def., EEOC Appeal No. 0220140001 (Jun. 14, 2016) (Agency No. E140007) 2021000550 3 No action was taken, and P1 responded, “do as you’re told.” Complainant went on medical leave from December 2007 through February 2008. When she returned to work, she found that her transcript-related duties had been removed. In or about March 2008, Complainant contacted and spoke with the EEO Complaints Manager (“ECM”) for the Agency’s Europe District, alleging that P1 subjected her to discrimination based on race and reprisal for her whistleblower actions related to the transcript irregularities.3 An EEO case number was assigned (Agency No. EUFY08039) and ECM told Complainant that he would follow up with her. Fearing retaliation by P1 and other management if they learned of her EEO activity, Complainant provided ECM with alternate contact information and instructed him not to call her back at work. ECM called Complainant back at her work number. When P1 answered the phone instead of Complainant, ECM identified himself, explained that he was following up on a phone call from Complainant, and P1 transferred the call to Complainant. The AJ determined that ECM “deliberately exposed [Complainant’s] EEO activity when he called the school and spoke to the very individual Complainant was planning to file a claim against.” On April 3, 2008, Complainant notified ECM that she was withdrawing her EEO complaint in order to pursue the matter as a union grievance. The AJ found Complainant’s testimony that the withdrawal was involuntary to be credible, as ECM had been noncommunicative after the phone call to Complainant’s work. The AJ cited ECM’s testimony confirming that Complainant was never contacted for a counseling interview, even though her act of contacting him was sufficient to initiate the complaint process, and the matter was assigned a case number. The AJ determined that “a reasonable person would be deterred from taking further EEO/protected action” given ECM’s unresponsiveness combined with his call to Complainant’s workplace, and subsequent adverse employment actions (negative performance review and involuntary transfer). At the end of the school year, P1 issued Complainant a poor performance appraisal, which Complainant describes as the first negative evaluation she ever received. Complainant testified that she submitted a rebuttal, which “exposed what transpired during that school year, because I was not satisfied and [P1] knew I was not satisfied…I did not get the training…I felt that a lot of the things that were asked of me to do were not ethical and I felt that it needed to be exposed.” Complainant alleges that P1 used the appraisal as an excuse to involuntarily reassign her to the position of Middle School Counselor, which Complainant perceived as a demotion. 3 The AJ’s Decision placed initial EEO contact in September 2008, but Complainant withdrew her complaint in April 2008. As Complainant was on medical leave from December 2007 through February 2008, for purposes of this decision, Complainant’s initial contact was in February or March 2008. Complainant also testifies that she engaged in informal EEO activity in September 2007, but clarifies that her first EEO contact occurred in 2008. Complainant did not establish that the Agency was aware of the EEO activity, triggering liability, until 2008. 2021000550 4 2008 - 2010 Ansbach Middle High School (AMHS) - Middle School Counselor From 2008 through P1’s retirement in 2010, Complainant’s direct supervisor was P1, but she reported to AP instead. Complainant describes her two years as the AMHS Middle School Counselor as “good years. I got good performance appraisals, and I was optimistic… because I didn’t have to deal with the transcripts… I was away from that.” 2010 - 2012 Ansbach Middle High School (AMHS) - High School Counselor In 2010, Complainant returned to her position as High School Counselor at AMHS, where she reported to a new principal (“P2”). Again, Complainant found irregularities in student transcripts, so she met with AP and P2 to discuss her concerns. According to Complainant, P2’s immediate response was to scream at Complainant, pound his hands on the table, and make personal attacks on her intelligence and competence. P2 did not take further action. Then, an administrator at another school called P2 to confirm the accuracy of a former student’s transcript, notifying P2 that she believed it contained errors, given the contrast with their records for the student. P2 blamed Complainant for the discrepancy, and subjected her to disciplinary action, even when she explained that the errors were entered by her predecessor. Complainant alleges that P2 made her the “fall guy” as she later became aware of the extent of the transcript irregularities when they were reported by the media. She felt humiliated, and her professional reputation was damaged. 2012-2013 - Ramstein Intermediate School (“RMI”) - Elementary School Counselor In 2012, Complainant transferred to RMI, an elementary school for grades 3, 4, and 5, where she reported to another principal (“P3”). P3 had been assistant principal to P2, and they had a close working relationship. Complainant perceived that her reputation as a “troublemaker” preceded her. A few weeks after Complainant arrived, P3 threatened to write her up for insubordination for failing to write a class placement list Complainant had not been instructed to write. That day, P3 also counseled Complainant for submitting the list an hour late, when Complainant’s white coworker submitted her list five hours late without consequence. In October 2012, someone broke into Complainant’s car while she was at home and painted a swastika on it. The only items that were stolen from the car were two thumb drives containing work-related data. The AJ found the crime “highly suspect” given that the other valuables in Complainant’s car remained untouched. The AJ also found that Complainant’s mother credibly testified that her home was so out of the way that someone would need personal knowledge of Complainant’s address to find it. Complainant reported the incident to the authorities, but no arrests were made. Complainant also notified the District Superintendent (“DS”), and an investigation was initiated into whether any Personal Identifying Information (“PII”) was compromised. 2021000550 5 DS testified that Complainant violated the Agency’s PII policies when she took the thumb drives off school property. The AJ notes that DS’s account conflicts with “a plethora of witnesses,” including P3, who testified that Complainant had not violated Agency policy. The AJ also found that using thumb drives in order to access work at home was “a common practice at the Agency” and that the Agency provided thumb drives to its employees for this purpose. Additionally, there was no evidence that Complainant was negligent, as she was the victim of a theft. The Chief of Staff at DoDEA issued a final report that the information lost due to the theft was of low to moderate risk of exposing any PII, and Complainant was not subject to discipline for the loss of the thumb drives. However, on August 22, 2013, P3 issued a Notice of Proposed Suspension to Complainant, charging her with violating Agency policy when she sent work emails to a personal email account. Complainant appealed the Notice, but it was upheld by DS on September 27, 2013. On October 9, 2013, Complainant filed a Step III Grievance challenging the five-day suspension, and also alleging discrimination based on race. While the Step III Grievance was pending, Complainant served the suspension on October 22-25, 2013. On October 25, 2013 Complainant’s Step III Grievance was denied. Shortly afterward, Complainant appealed the Step III Grievance to the Commission, and the appeal was docketed as EEOC Appeal No. 0220140001.4 Ultimately, the matter resulted in Claim 1(b) of the instant complaint. The AJ found the Agency’s reason for the August 22, 2013 Notice of Proposed Suspension was pretext for retaliation. Among other things, the AJ determined that the Agency lacked a clear policy regarding work emails. The AJ also found that P3 and DS were using the suspension as a “loophole” allowing them to discipline Complainant for the alleged PII violation related to the thumb drive theft, despite the matter having been resolved by upper management. The AJ found that Complainant established reprisal, as “[a] reasonable person would observe the connection between Complainant continuously reporting the transcript irregularity and the adverse treatment by her employers.” Given “the entirety of the circumstances surrounding the transcript irregularities… it is highly suspect that Complainant’s continuous attempts to notify her supervisors of the irregularities would be ignored, and then the blame shifted to Complainant immediately after the irregularities were brought to light.” The Agency subsequently issued a Final Order rejecting the AJ’s finding that Complainant proved discrimination as alleged with respect to Claim 1, and award of $125,000 in nonpecuniary compensatory damages, then filed the instant appeal. 4 Complainant raised the same matter in EEOC Appeal Nos. 0120142134 and 0220140001and with the Merit Systems Protection Board. MSPB Docket No. DC7528140138I1 (Dec. 4, 2013) (dismissed for lack of jurisdiction). 2021000550 6 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Reprisal To establish a prima facie case of reprisal, Complainant must show that: (1) she engaged in protected activity, (2) the alleged discriminating official was aware of the protected activity, (3) she was adversely affected by an action of the agency contemporaneously with or subsequent to the protected activity, and (4) there is a causal connection between the protected activity and the adverse employment action. Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), see also Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Under the first prong of the prima facie analysis, “protected activity” refers to either participation in the EEO process or acting in a reasonable, good faith manner to oppose discriminatory practices in violation of EEO statutes. See EEOC Compliance Manual, Section 2, B.11, (May 12, 2000) (EEOC Directive No. 915.003), citing EEOC v. Romeo Community Sch., 976 F.2d 985, 989-990 (6th Cir. 1992), Contra Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994). Participation in the EEO process includes filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute, regardless of the validity or reasonableness of the original allegation of discrimination. Id. A fair reading of the record, including the AJ’s discussion of Complainant’s testimony, which he deemed credible, indicates that Complainant’s reprisal claim is based entirely on her whistleblowing activity. The Commission has previously held that whistleblower activities that do not involve allegations of discrimination are outside the purview of the EEO process. Giannu v. Dep’t of Housing & Urban Devel., EEOC Request No. 05880911 (Feb. 13, 1989) (holding that appellant failed to state a claim regarding allegations of retaliation for her whistleblower activities), Foley v. Dep’t of the Navy, EEOC Request No. 05860403 (July 2, 1987) (holding that whistleblowing is not within the confines of Title VII), see also, e.g., Complainant v. Dep’t of Justice, EEOC Appeal No. 0120120845 (Apr. 11, 2013) (allegation of reprisal for whistle- 2021000550 7 blowing activities regarding fraud, waste and abuse, including reporting misappropriation of congressionally mandated funds to the Inspector General, did not identify EEO activity protected under Title VI) and Phillips v. Dep’t of Homeland Sec., EEOC Appeal No. 0120071050 (Apr. 12, 2007) (reprisal claim based on complainant’s assertion that, "throughout the years, I have uncovered much fraud, but no recognition was given, and I was retaliated against, for forwarding proof of what I had found," properly dismissed as it did not identify protected activity). However, under some circumstances, the Commission has found that whistleblower activity constitutes “protected activity.” See, e.g. Hood v. Dep't of Agric., EEOC Appeal No. 0120111403 (Dec. 16, 2011) (complainant’s whistleblower activity of frequently and vocally opposing "illegal and discriminatory personnel management practices," and referring to his prior experience as an EEO Program Manager at another agency was sufficiently protected to state a claim of retaliation), see also, Hairston v. Dep't of Educ., EEOC Appeal No. 0120071308 (Apr. 15, 2010) (whistleblower report where complainant detailed his perception of the agency's non- compliance with Commission regulations constituted protected activity, and record evidence that agency management was aware of this protected activity, and management’s failure to support its proffered legitimate nondiscriminatory reason for subsequently lowering of the complainant’s performance rating, established that the complainant was subjected to retaliation). When assessing reprisal claims that allege retaliation for both EEO activity and whistleblower activity, the Commission has only accepted the reprisal claim to the extent that it was based on EEO activity, disregarding whistleblower actions that, on their own, would not constitute “protected” activity. See Jones v. Dep’t of Transportation, EEOC Appeal No. 01985898 (July 13, 1999). Protected Activity 2008 - 2010 Complainant’s whistleblower activity constitutes “protected activity” under the first prong of the analysis to the extent that she raised it with an EEO counselor of other official in February or March 2008. It is undisputed that Complainant discussed her whistleblower activity with ECM. The second prong is also satisfied because the evidence reflects that P1 became aware of Complainant’s protected activity in or around March 2008, when ECM called Complainant at work and P1 answered. However, Complainant has not demonstrated that any other responsible management official was aware of her EEO activity. The AJ’s assumption that there was “a strong possibility [P1] communicated this information to others within the Agency” is not supported with evidence or testimony based on direct knowledge. Complainant’s ongoing “unprotected” whistleblower activity, discussed extensively in the record, has a stronger temporal nexus with the alleged retaliatory actions. Therefore, we find the record does not support a prima facie case for retaliation with respect to Complainant’s whistleblower activity before P1 had knowledge of her EEO activity in March 2008 and after P1’s retirement in 2010. As for Prongs 3 and 4 of the prima facie analysis, Complainant experienced adverse treatment in the form of a poor performance appraisal and involuntary reassignment by P1. 2021000550 8 Complainant’s performance appraisal and involuntary transfer occurred shortly after P1 became aware of Complainant’s EEO activity, establishing a nexus between the protected activity and the adverse action. Additionally, Complainant’s transfer was reversed once P1 retired. The AJ identified an additional adverse action - P1’s removal of Complainant’s transcript responsibilities. However, this occurred immediately upon Complainant’s return to work, so it predates P1’s knowledge of Complainant’s protected EEO activity. Complainant established a prima facie case of reprisal for prior protected activity from March 2008 through September 2010. Protected Activity 2010 - 2013 We note that this time frame diverges from the AJ’s finding that even after P1’s retirement in 2010, “the continuous and sustained adverse action across schools and time, create a further deterrence [from engaging in EEO activity], given that Complainant would be unable to know who to trust.” While Complainant may have experienced adverse employment actions as reprisal, she did not establish that the responsible Agency official were aware of her prior EEO activity once P1 retired, and there is no nexus between the adverse actions that occurred after P1’s retirement and Complainant’s prior EEO activity. Rather, Complainant makes it clear that the adverse actions by P2, P3, and DS, were related to her whistleblower activity, by emphasizing its significance and relation to Management’s retaliatory response. For instance, Complainant’s affidavit testimony states: It took me a short while to learn the magnitude of my reporting the transcript alterations and the politics involved. I learned that there was involvement of one of the leaders at AMHS was involved because her daughter was one of those whose transcript bad been altered for her to be able to get into the best colleges and universities after high school graduation. I considered myself doing my job when I reported the alterations. I later learned I bad uncovered something that had been kept quiet and had in the past been allowed to happen. Likewise, the incident Complainant identifies as triggering ongoing alleged retaliatory acts by P2 does not reference EEO matters and was not raised with an EEO counselor. Rather, Complainant recounts how administrators from another school questioned P2 about the accuracy of a student’s transcript, and Complainant and AP responded to the school that they could not provide sufficient documentation to verify the transcript. Afterward, Complainant felt that she was “under the microscope from then on.” Although Complainant also states, “[t]he transcripts started a downward spiral and led to disparate treatment and discrimination,” she does not identify specific instances of discrimination by the Agency. The AJ repeatedly identifies Complainant’s whistleblowing activities related to transcript irregularities as the basis for the Agency’s alleged retaliatory actions between 2007 and 2013, but other than the claims in Complainant’s 2008 informal EEO complaint, there is no evidence that Complainant’s whistleblower activity is ”protected” within the meaning of our statutes. 2021000550 9 Complainant continued reporting transcript irregularities well after P1’s departure from the Agency, and the record reflects that that these new whistleblower incidents incited the alleged reprisal by P2, P3, and DS rather than Complainant’s informal EEO complaint years earlier. Complainant’s whistleblower activities from 2010 through 2013 do not constitute “protected activity” under EEO statutes. Discriminatory and/or Retaliatory Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, 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 Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race or activity protected under Title VII. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant failed to establish a prima facie case of discrimination based on race. The AJ acknowledged that the swastika on Complainant’s car in October 2012 indicated an attempt to intimidate Complainant based her race but found that “the record is devoid of concrete evidence proving Agency involvement.” Based on our de novo review, other than bald assertions, Complainant has not shown that the actions at issue were motivated by discrimination based on race. For reasons previously discussed, Complainant’s prima facie case for reprisal is limited to P1’s adverse treatment of Complainant following her protected EEO activity related to her Informal EEO complaint (Agency No. EUFY08039), namely, her poor performance appraisal and her reassignment to the position of Middle School Counselor for the 2008/2009 and 2009/2010 school years. 2021000550 10 Therefore, this analysis only addresses the portion of Claim 1(a) alleging that Complainant was subjected to reprisal when the Agency hindered her ability to participate in the EEO process from March 2008 through September 2010.5 The Agency contends that Complainant’s exercise of the EEO process was never “hindered” as alleged. Specifically, the Agency challenges Complainant’s credibility where she testifies that her withdrawal of her informal EEO complaint was “involuntary.” The Agency also disputes the AJ’s finding that ECM was unresponsive to Complainant’s calls and “deliberately” attempted to expose Complainant’s EEO activity to P1. According to the Agency, Complainant’s testimony that she “involuntarily” withdrew her informal EEO was simply evidence of “buyer’s remorse” for her decision to pursue a grievance instead. As support, the Agency cites Complainant’s April 3, 2008 withdrawal email to ECM, which made no reference to ECM’s unresponsiveness in order to “serve as a record” as the reason for her withdrawal. The withdrawal email also included the phrase, “I thank you for your assistance and time pertaining to this matter.” In addition, the Agency cites Complainant’s “inconsistent testimony” where she conceded that the she was aware she could contact Agency EEO office throughout the relevant time frame, and that her 2008 decision to withdraw her complaint to pursue a grievance was based on the advice of her union representative. The Agency’s argument that ECM was responsive to Complainant hinges on ECM’s quick response to Complainant’s withdrawal email and does not address the lack of EEO counseling and lack of communication following the phone call where he spoke with P1. Complaint did not deny that she withdrew her EEO complaint on April 3, 2008, but explained that the withdrawal “was involuntary only due to the fact that I could not get any assistance and I was told [by her union rep] that…I could not have an EEO [and] a grievance. I had to choose one or the other.” In light of the evidence of record, the April 3, 2008 email to ECM and the testimony the Agency cites are insufficient to undermine the AJ’s finding that Complainant’s testimony was credible. Complainant had no obligation to affirmatively identify ECM’s conduct as an underlying reason for the withdrawal in the April 3, 2008 email. Under the circumstances, the statement in the April 3, 2008 email thanking ECM indicates nothing more than professional courtesy. Contrary to the Agency’s assertions, Complainant’s decision to pursue a grievance does not necessarily conflict with her claim that the Agency hindered her exercise of the EEO process. The Agency never followed up to provide Complainant with EEO counseling, even after assigning a case number to her informal allegations, and ECM and P1’s actions deterred her from engaging in EEO activity. Regardless of his intent, it is undisputed that ECM called Complainant at work after she expressly instructed him not to in order to avoid alerting P1 to her protected EEO activity. 5 We again note that Complainant raised the issues of the performance appraisal and transfer as adverse actions designed to harass her in order to punish her for, and discourage her use of, the EEO complaint process. 2021000550 11 It is also undisputed that P1, who ECM knew was the responding management official for Complainant’s EEO action, answered the phone, spoke with ECM and personally transferred ECM’s call to Complainant. Afterward, Complainant attempted to follow up about her EEO complaint, and ECM failed to respond until he confirmed receipt of her April 3, 2008 email to him withdrawing her complaint. Soon after the call, P1 issued Complainant’s poor performance appraisal and informed her that she would be involuntarily reassigned to the position of Middle School Counselor, which she held until P1 retired. The AJ found, and we agree, that the record does not contain adequate support for a finding that there were legitimate reasons for P1’s actions. In sum, we conclude that the evidence of record supports the AJ’s finding that Complainant was subjected to unlawful retaliation between March 2008 and P1’s retirement in 2010. Disparate Impact To establish a prima facie case of disparate impact, Complainant must show that an agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. Huber v. Dep’t of Transportation, EEOC Appeal No. 0120070399 (July 9, 2009) referencing Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also, Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). This is demonstrated through the presentation of statistical evidence establishing a statistical disparity linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988). Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id. Once a prima facie case is established, the burden shifts to the Agency, which must demonstrate that the challenged practice is job-related and consistent with business necessity. Id. If the Agency satisfies this burden, Complainant may nevertheless prevail if she identifies an alternative employment practice that would accomplish the same goal with a less adverse impact on her protected class. Id. Simply claiming that Agency officials’ use of subjective criteria, without more specificity, causes a disparate impact does not meet Complainant’s prima facie burden.” Israel J. v. Dep’t of Justice, EEOC Appeal No. Appeal No. 0120160324 (Mar. 22, 2018) (complainant alleging that an agency’s promotion process disparately impacted black males failed to establish a prima facie case because, among other things, he did not “sufficiently identify the particular aspect(s) of the Agency’s selection process allegedly responsible for any observed statistical disparity”), see also Loren M. v. Dep’t of Def., EEOC Appeal No. 0120162323 (Dec. 7, 2018). Rather, statistical evidence presented by Complainant must allow for a “quantitative analysis which clearly establishes the alleged disparity” to establish a prima facie case. Torres v. Dep’t of the Treas., EEOC Appeal No. 01A51913 (Jun. 14, 2005). In this case, the record is devoid of specificity or evidence, even though Complainant was provided opportunities to develop the record during the discovery process. For instance, Complainant never explains how the Agency’s grievance procedure was “operated, controlled, and structured” so that it disproportionately impacted African American employees. 2021000550 12 Likewise, Complainant’s assertions that “African Americans are disciplined at a disproportionate rate,” that the Agency and Union fail to “monitor the impact of [the Agency’s] policies and procedures on African Americans” in accordance with Title VII, and that Agency “administrators have unbridled discretion to select educators for discipline in a racially biased manner” are unaccompanied by any substantive data or explanation, so they do not establish disparate impact. Compensatory Damages Absent an error of law, an AJ's award of compensatory damages is an issue of fact subject to the substantial evidence standard of review. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 (2001) (noting that “the measure of actual damages suffered … presents a question of historical or predictive fact”); Boehms v. Crowell, 139 F.3d 452, 459 (5th Cir. 1998) (noting that “[a]bsent an error of law, [the court's] award of compensatory damages presents an issue of fact”) (second alteration in original); 29 C.F.R. § 1614.405(a). Pecuniary Damages Damages for past pecuniary damages will not normally be awarded without documentation such as receipts, records, bills, cancelled checks, or confirmation by other individuals, or other proof of actual losses or expenses. Enforcement Guidance: Compensatory and Punitive Damages Available under § 102 of the Civil Rights Act of 1991 (EEOC Guidance on Damages), EEOC Notice No. 915.002 at 10 (Jul. 14, 1992). See Margaret L. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120150582 (Apr. 17, 2018) citations omitted. Complainant references recoverable expenses, that she attributes to the Agency’s retaliatory actions, including medication and medical appointments to treat her anxiety and physical ailments. However, the record lacks any evidence to verify payment of medical expenses or any other quantifiable loss experienced as a result of the Agency’s unlawful retaliation. Complainant is not entitled to non-pecuniary damages. Non-pecuniary Damages Non-pecuniary losses are losses that are not subject to precise quantification, including emotional pain and injury to character, professional standing, and reputation. See EEO MD-110 at Chapter 11, § VII.B (Aug. 5, 2015). There is no precise formula for determining the amount of damages for non-pecuniary losses except that the award should reflect the nature and severity of the harm and the duration or expected duration of the harm. See Loving v. Dep't of the Treas., EEOC Appeal No. 01955789 (Aug. 29, 1997). The Commission notes that non-pecuniary compensatory damages are designed to remedy the harm caused by the discriminatory event rather than to punish the agency for the discriminatory action. Furthermore, compensatory damages should not be motivated by passion or prejudice or be “monstrously excessive” standing alone but should be consistent with the amounts awarded in similar cases. See Ward- Jenkins v. Dep't of the Interior, EEOC Appeal No. 01961483 (Mar. 4, 1999). 2021000550 13 Complainant has the burden of proving the existence, nature and severity of the alleged emotional harm. Man H. v. Dept. of Homeland Sec., EEOC Appeal No. 0120161218 (May 2, 2017). Complainant must also establish a causal relationship between the alleged harm and the discrimination. Id. Absent such proof of harm and causation, a Complainant is not entitled to compensatory damages, even if there were a finding of unlawful discrimination. Id. See also e.g. Wilda M. v. U.S. Postal Serv., EEOC Appeal No. 0120141087 (Jan. 12, 2017) (Awards for emotional harm are warranted only if Complainant establishes a sufficient causal connection between the Agency's illegal actions and her injury). The Commission has held that evidence of emotional distress should include detailed information on physical or behavioral manifestations of the distress, if any, and any other information on the intensity of the distress, information on the duration of the distress, and examples of how the distress affected appellant both on and off the job. Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Documentation from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. United States Postal Serv., EEOC Appeal No. 01952288 (Apr 18, 1996) citing Carle v. Dep’t of the Navy). The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. Complainant was harmed when the Agency, through P1, subjected her to adverse employment actions in the form of a lowered performance appraisal and involuntary reassignment. The record is replete with evidence that Complainant considered her profession and work ethic integral to her identity, which, along with her whistleblower activity, supports that in particular, feelings of injustice related to these adverse actions would result in emotional distress. It is also consistent with Complainant’s testimony about emotional distress over concerns about the impact these actions would have on her career and professional reputation. Complainant conveys a sense of helplessness with respect to the negative performance review from P1, explaining that she was penalized for failing to adequately meet performance standards for a position she was never trained in. Complainant, whose background was in elementary school, argues that P1 set her up for failure by denying her requests for training, as P1 was aware that Complainant lacked experience as a high school counselor. Complainant was anxious that the negative performance appraisal and “demotion” would harm her professional reputation. She testified, “until this situation is made right, it follows me like a bad penny. Every administration that has ever come into our school is aware of the transcript and the [unprotected whistleblower and PII actions that occurred after 2010]. It plagues me.” Complainant testified that following P1’s adverse actions, she experienced “anxiety, depression, high-level distress. Restless, sleepless nights. I was broken severely [after] what happened [at both schools].” She feared retaliation, feeling like “a train was always coming and [she] just had to wait for it to mow [her] down.” The reprisal negatively impacted her self-confidence and ability to trust. 2021000550 14 The stress manifested in physical symptoms, including a tremor, which began on an unspecified date.6 Complainant’s mother credibly testified that to cope with her emotional distress, “food became [Complainant’s] friend” and she worried about the health impact of Complainant’s emotional eating. Complainant would call her late at night, crying, unable to sleep and tell her about, among other things, about P1’s retaliatory actions. The AJ awarded Complainant $125,000 in relief based on his erroneous finding that Complainant engaged in protected activity, and the Agency was aware of that activity, from 2007 through 2013. AJ likened this case to our decision in Anvari v. Department of Veterans Affairs, where a complainant who was subjected to two investigations resulting in emotional distress and long-term harm to his reputation was awarded $125,000 in non-pecuniary compensatory damages. EEOC Appeal No. 01996155 (Feb. 14, 2002). However, we conclude, based on our analysis of the evidence of the case which considerably shortened Complainant’s exposure to retaliatory harassment, that an award of $125,000 in nonpecuniary damages is excessive, and Anvari is not an appropriate comparison. In Anvari, the complainant established emotional distress with medical documentation and testimony by two treating psychiatrists who diagnosed him with major depression, which they attributed to the agency’s discriminatory acts. Here, Complainant did not testify or present evidence that she sought medical treatment for the harm she suffered between 2008 and 2010. A more accurate comparison for determining the appropriate amount of nonpecuniary compensatory damages would be to review cases with complainants that were subject to similar adverse actions resulting from reprisal for protected EEO activity, and where the complainants submitted similar evidence to support their emotional distress. It is well established that even if a transfer or reassignment results in a positive experience for a complainant, “because it was unwanted and involuntary… the reassignment adversely affects [the complainant’s] employment.” Taylor v. Dep’t of the Air Force, EEOC Appeal No. 05920194 (July 8, 1992), see, e.g. Reid v. Dep’t of Justice, EEOC Appeal No. 0720070003 (Jan. 25, 2008) ($2,000 in non-pecuniary compensatory damages where involuntary transfer caused emotional harm, as it disrupted the complainant’s life, caused her to feel sadness and apprehension, but soon after the transfer she determined that she did not to be transferred back to her old office). The complainant in Garland C. was awarded $20,000 in nonpecuniary damages after he was demoted and involuntarily reassigned as reprisal for engaging in EEO protected 6 Some of Complainant’s specific medical-related testimony referenced in the AJ’s decision, will not be considered in calculating damages because it does not appear that any treatment or diagnosis occurred prior to P1’s retirement. There is also no temporal nexus between the treatment and the 2008 incidents of reprisal, nor is there any documentation to support that these health issues arose between 2008 and 2010. “During the transcript situation” (in November 2010) she initiated treatment at a Behavioral and Mental Health Clinic and was prescribed medication for depression and anxiety through 2011. “After moving to Ramstein” (in 2012) Complainant underwent an emergency hysterectomy, which she attributed to work related stress, but did not show was the result of her 2008 EEO activity. 2021000550 15 whistleblower activity (reporting sexual harassment to a manager) and subjected to additional harassment upon reassignment by the supervisor in his new position, who was also the husband of the individual Complainant reported for harassment. See also Utt v. United States Postal Serv., EEOC Appeal No. 0720070001 (Mar. 26, 2009) ($25,000 in non-pecuniary damages awarded where complainant provided testimony that as a result of discrimination he suffered from stress, low self-esteem, difficulty sleeping and weight gain). As for Complainant’s negative performance review, we have considered the impact on her professional reputation when assessing the severity of the harm. In Carlson v. Department of Justice, the complainant was awarded $30,000 in nonpecuniary damages not only for emotional distress, but also alienation and loss of status. EEOC Appeal No. 01A51437 (Apr. 27, 2005). The Commission noted that the effects of the responding management official’s discriminatory actions “extended beyond her actual supervision of complainant and that she bore some responsibility for the change in his status within the agency and the change in his personality.” Id. Additionally, the supervisor’s actions “followed him” impacting his reputation even when he transferred facilities. Id. see also Complainant v. Dep’t of Justice, EEOC Appeal No. 0720150006 (Jun. 15, 2015) ($35,000 in non-pecuniary compensatory damages when, upon finding out about the complainant’s EEO complaint, her supervisor subjected her to a special inspection and issued an unacceptable performance appraisal without the option to appeal, which caused the complainant ongoing stress, humiliation, concern regarding her professional reputation, and emotional distress, causing mental and physical symptoms), Reid v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070077 (Nov. 13, 2009) ($20,000 in non- pecuniary damages awarded where complainant established that she suffered damage to her professional reputation and emotional distress). Complainant supports her assertion that she experienced emotional distress as a result of the Agency’s retaliatory actions with testimony from both her and her mother. Notably, Complainant also attributes her emotional distress to factors unrelated to protected EEO activity, such as her whistleblower activity in the fall of 2007 and from 2010 through 2013 and undergoing a mastectomy in late 2007. In Garland C. v. Department of Homeland Security, EEOC Appeal No. 0120182009 (Jan. 29, 2020), the complainant was awarded $20,000 in nonpecuniary damages after the AJ noted that in addition to the reprisal, the complainant’s emotional distress could be attributed to other life events and his prior diagnosis of PTSD. To the extent Complainant attributed his PTSD symptoms to the reprisal, the AJ declined to consider them because testimony offered by the complainant’s therapist was “conclusory and did not explain how the Agency's actions were the direct and proximate cause of the [PTSD] symptoms he presented.” See also, Maxine C. v. United States Postal Service, EEOC Appeal No. 2019001571 (Jul. 7, 2020) ($20,000 for nonpecuniary damages for emotional distress caused by reprisal, disregarding complainant’s additional contentions of harm (dissolution of marriage, weight gain, exacerbated medical condition) where the complainant failed to provide supporting evidence connecting the harm to the agency’s retaliatory actions), citing Ashlea P. v. United States Postal Serv., EEOC Appeal No. 0120141369 (Apr. 19, 2016) ($20,000 for non- pecuniary damages based on complainant and her daughter’s testimony (no medical evidence) that complainant experienced anxiety & gastrointestinal difficulties, complainant was reluctant to 2021000550 16 go to work, was sullen and despondent, and did not want to spend time with family), Yun C. v. United States Postal Serv., EEOC Appeal No. 0120141368 (Oct. 13, 2015) ($20,000 for non- pecuniary damages based on sworn statements of complainant and her mother (no medical evidence) attesting to her anxiety, mental anguish and feelings of unworthiness). Thompson v. United States Postal Serv., the. EEOC Appeal No. 01A02660 (Dec. 30, 2002), reconsideration denied, EEOC Request No. 05A30433 (Mar. 20, 2003) ($10,000 in non-pecuniary damages for reprisal including humiliation, headaches and difficulty sleeping, but finding statements from a psychologist and counselor were not sufficiently specific to show to what extent symptoms of psychological condition were caused by the retaliation). Complainant’s involuntary reassignment lasted 2 years, during which, her interactions with P1, the cause of much of her EEO-related anxiety, significantly decreased. Instead, Complainant reported to a middle school supervisor who she got along with. The record does not support Complainant’s interpretation of the involuntary reassignment as a “demotion.” The move was a lateral reassignment, and Complainant maintained the same grade and salary. Complainant’s daily commute also remained the same, as the middle school was in the same building as the high school. Complainant testified that she felt “optimistic” during this time, and glad her workload did not include student transcripts. Complainant’s negative performance review had minimal impact on her record and reputation, and it does not appear that P1’s negative review caused her to lose a monetary award or commendation. Complainant mitigated her anxiety about how the negative performance review would damage her reputation by immediately disclosing it, along with her whistleblower and protected activity to her middle school supervisor. Despite the disclosure, complainant did not report any retaliatory actions by management. Moreover, she appears to have thrived in this position, as she received positive performance reviews both years. Based on a thorough review of the record including evidence not specifically addressed herein, and considering comparable case law, we have determined that Complainant is entitled to $30,000 in nonpecuniary compensatory damages. Attorney Fees A prevailing complainant must be represented by an attorney for an attorney’s fee award, and the fee award may include compensation for the time spent by such non-attorneys as the legal assistants and law clerks who provided any legal assistance in the matter under the supervision of the attorney. See Dunn v. Dep’t of the Air Force, EEOC Appeal No. 0720110021 (Feb. 10, 2012). The Commission’s regulations allow the attorney’s fees award to include an award for services rendered by law clerks, paralegals, or law students if any such person provides professional services under the supervision of an attorney. See Kallauner v. Dep’t of Energy, EEOC Appeal No. (Oct. 19, 2005). Where, as here, a complainant is not represented by an licensed attorney, no such fee award can be made for the services of the non-attorney representative. Id. 2021000550 17 This applies even in instances where the non-attorney representative is a former attorney. See, e.g. Cortez J. v. Dep’t of Def., EEOC Appeal No. 0120182712 (Nov. 29, 2019) (complainant not eligible for attorney fees “at a reduced hourly rate” where he was represented by a disbarred attorney). Likewise, a complainant is not entitled to costs arising from any expenses, such as travel or lodging, paid to a non-attorney representative in the course of their representation. Id., Iesha P. v. Dep’t of Def., EEOC Appeal Nos. 0120181046 (June 6, 2019) other citations omitted. Complainant’s appellate submissions include a demand letter to the Agency for “taxable costs in the approximate amount of $25,000.00 in connection with her case against the agency” and a Petition for Award of Costs, requesting “$2,500.00 for Complainant’s Designated Representative for investigative and consultation work.” The letter and the petition are essentially a request for attorneys’ fees. Even if Complainant provided the required evidence to support payments in these amounts (e.g. detailed, dated billing statements to verify services), she would be ineligible to receive them because she was not represented by a licensed attorney. Complainant’s Petition for Costs in the amount of $2,500 is denied and the Agency is not liable for $25,000 in fees for services rendered by Complainant’s representative who was not a licensed attorney. CONCLUSION Accordingly, the Agency’s Final Order rejecting the AJ’s finding that Complainant established that she was subjected to unlawful reprisal with respect to the allegations in Claim 1 is MODIFIED. Complainant successfully established that she was subjected to reprisal for prior EEO activity by the Agency with respect to the allegations in Claim 1(a) from March 2008 through September 2010 only, and the remedies have been adjusted accordingly. We REMAND the matter so that the Agency may comply with the following Order. ORDER Within ninety (90) calendar days of the date this Decision is issued, the Agency shall: 1. Provide all current administrators/management level employees at Ansbach Middle/High School, along with the District Superintendent, with at least four (4) hours of training. The training shall address the current state of the law on employment discrimination, in particular retaliation and disability discrimination, and the goals behind requiring equal employment opportunity. 2. Provide all non-administrators/management level employees at Ansbach Middle/High School, with one (1) hour of training. The training shall explain the how to file an EEO complaint and what to expect during EEO processing, and 2021000550 18 address EEO rights related to reprisal including what constitutes protected EEO activity. 3. Pay Complainant nonpecuniary compensatory damages in the amount of $30,000. The payment shall be issued to a bank account in Complainant’s name or, if this is not possible, by check with Complainant as the only named recipient (as opposed to “in care of”). 4. Within thirty (30) calendar days of this Decision, the Agency shall comply with the Posting Order below. 5. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at Ansbach Middle/High School, East District, DoDEA Europe copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 2021000550 19 If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021000550 20 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). 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. 2021000550 21 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 July 15, 2021 Date