[Redacted], Joshua F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.Download PDFEqual Employment Opportunity CommissionAug 9, 2021Appeal No. 2020003378 (E.E.O.C. Aug. 9, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joshua F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2020003378 Agency No. 4C-170-0106-19 DECISION On May 11, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision, in part, and REMANDS the remaining matters for further processing. ISSUES PRESENTED The issues presented concern whether Complainant was subjected to discrimination based on sexual orientation, disability, and reprisal, when the Agency allegedly violated his medical restrictions and subsequently removed him from federal service. 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. 2020003378 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, Q7-02, at the Scranton Post Office in Scranton, Pennsylvania. He identifies as a member of the lesbian, gay, bisexual, and transgender (LGBT) community. See Report of Investigation (ROI) at 00073. Complainant alleged that management at the Scranton Post Office first learned about his sexual orientation sometime in 2013 or 2014, when the previous Postmaster of the Scranton Post Office told managers at the office that a “gay male was coming on the rolls to be a letter carrier.” Id. Around the same time, Complainant was allegedly diagnosed with depression. Id. at 00074. For much of his employment with the Agency, Complainant worked under the same first level supervisor (S1). Complainant claimed that S1 was biased against LGBT people because, on or around August 1, 2016, when he sought an “accommodation”2 for lifting two heavy oversized packages, S1 replied, “What’s your disability? That you don’t like vagina?” ROI at 00008 and 00085. Complainant maintained that he experienced “the total downfall of [his] mental health” after S1 made that comment. Id. at 00090. From 2016 to 2018, Complainant repeatedly took unscheduled leave, some of which was taken pursuant to the Family and Medical Leave Act (FMLA). ROI at 00157. In this regard, the record shows that Complainant took 35 days of unscheduled leave in 2016. Id. The following year, Complainant took 93 days of unscheduled leave. Id. Complainant’s use of unscheduled leave increased dramatically in 2018. That year, Complainant was absent for 174 days. Id. Due to Complainant’s extensive use of unscheduled leave, he eventually exhausted his leave balances and was also no longer entitled to FMLA as of April 25, 2018. ROI at 00220. Thereafter, Complainant received the following informal and formal disciplinary actions related to his attendance: 1) a letter of warning dated June 6, 2018 for unsatisfactory attendance; 2) a seven-day suspension dated August 6, 2018, for unsatisfactory attendance; and 3) a 14 day suspension dated January 2, 2019, for unsatisfactory attendance. Complainant grieved both suspensions. On August 23, 2018, the Customer Service Manager reduced the seven-day suspension to a letter of warning. Id. at 00236. S1 subsequently reduced the 14-day suspension to a seven-day suspension on March 29, 2019. Id. at 00232. While Complainant was in the process of grieving his 14-day suspension, he slipped and fell on ice on January 29, 2019, and sustained an on the job injury. ROI at 00074. He promptly reported the injury to S1 and was subsequently diagnosed with left hamstring strain on February 2, 2019. Id. at 00093. Due to this injury, Complainant’s private treating physician (P1) assessed Complainant with the following work-related medical restrictions: light duty, consisting of sedentary work of up to 10 hours of sitting and no more than 10 pounds of lifting, pushing, and 2 With regard to Complainant’s statement that he sought an accommodation for lifting two heavy, oversized packages, it is unclear to whether Complainant was seeking an accommodation in the colloquial sense (i.e., assistance) or seeking a reasonable accommodation under the Rehabilitation Act. 2020003378 3 pulling; and no standing, walking, and driving. P1 did not prohibit Complainant from engaging in simple grasping, fine manipulation, and repetitive motions. Id. Complainant also filed an application for benefits with the Department of Labor, Office of Workers’ Compensation Programs (OWCP). As part of the application process, Complainant underwent another examination on February 11, 2019 and obtained a duty status report. ROI at 00094. Much like P1, the private treating physician (P2) who examined Complainant on this occasion opined that Complainant could lift and carry up to 10 pounds intermittently. However, P2 differed with P1 slightly, in that P2 limited Complainant to no more than eight hours of sitting, grasping, engaging in fine manipulation, and reaching above the shoulder. Notably, P2 allowed Complainant to stand, walk, and drive for up two hours per day, whereas P1 completely prohibited Complainant from engaging in these activities.3 Id. at 00093-94. The following day, the Agency offered Complainant a modified assignment. ROI at 00281. Complainant’s modified assignment duties consisted of the following: up to two hours of casing mail on open office route; up to two hours of pivoting delivery/Express mail; up to two hours of driving carriers with revoked privileges; and up to six hours of miscellaneous office work. Id. These duties involved the following physical requirements: up to eight hours of sitting; up to two hours of standing and walking; up to eight hours of reaching above shoulder and simple grasping; and up to two hours of driving. Id. On March 8, 2019, Complainant underwent another examination with a third private treating physician (P3). ROI at 00095. P3’s examination of Complainant revealed that Complainant’s limitations had moderately subsided. Though Complainant still had limitations, he could now perform the following: lift, push, pull up to 20 pounds; and stand, drive, and sit for up to eight hours. Id. Complainant also could now walk for up to four hours a day; however, P3 clarified that Complainant could only walk for up to three hours per day if the walking involved delivering mail on foot and climbing up to one step. Id. There were no limitations on Complainant’s ability to engage in grasping and fine manipulation. Id. Complainant received a new modified assignment offer on March 9, 2019. ROI at 00282. Reflecting P3’s less restrictive limitations, the new modified assignment required Complainant to perform the following duties: up to two hours casing on open office route and pivoting delivery/Express mail; up to three hours street delivery route; and up to six hours of miscellaneous office work. Id. The physical requirements for the modified assignment mostly complied with P3’s restrictions and included the following: up to eight hours of sitting, reaching above shoulder/simple grasping; and up to three hours of driving. Id. However, the modified assignment required Complainant to walk up to five hours per day, which exceeded P3’s directive to limit walking to no more than four hours. Id. 3 P2 reexamined Complainant on February 25, 2019, and assessed the same limitations listed on the February 11, 2019, Duty Status Report. ROI at 00280. 2020003378 4 P3 reexamined Complainant on April 26, 2019. ROI at 00096. She also reexamined Complainant on May 30, 2019. Id. at 00097. As reflected in the examination reports, Complainant’s condition remained the same since his examination on March 8, 2019. He still had the same work-related limitations. Although the Agency provided Complainant with modified assignments, Complainant could not perform his duties. Due to his repeated absences, S1 sought to remove Complainant from federal service. ROI at 00219-20. Complainant was afforded a pre-disciplinary interview with S1 on May 14, 2019. When S1 asked Complainant why he had been absent for approximately 38 days since January 11, 2019, Complainant primarily maintained that his absences were due to his on the job injury. Id. at 00221-23. The Agency subsequently issued Complainant a Notice of Removal on June 5, 2019. ROI at 00103-5. The removal letter was issued by the Customer Service Supervisor, not S1, because S1 was on leave as of May 17, 2019, due to medical issues. The Customer Service Manager served as the concurring official in the removal action. As before, Complainant filed a grievance challenging the Agency’s decision to remove him. Management opposed Complainant’s grievance and argued that the removal action was warranted given Complainant’s 46% absentee rate in 2019. Id. at 00157. His grievance proceeded all the way to the Step B level, where the Step B Team ultimately upheld the Agency’s removal action on July 25, 2019. Id. at 000164. The removal action was held in abeyance until August 30, 2019, to allow Complainant to resign. Id. On October 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation),4 disability (leg/depression), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, and Section 501 of the Rehabilitation Act of 1973 when: 1. On or around January 29, 2019, management did not properly process his OWCP complaint, and subsequently, on dates not specified, management made fraudulent statements to OWCP; 2. On or around February 5, 2019, management gave him a job offer that violated his medical restrictions;5 and 4 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 5 It appears that the Agency inadvertently mischaracterized this claim to state that Complainant was challenging a modified assignment offer that was given to him on February 5, 2019. Our review of Complainant’s informal complaint shows that he alleged the following: on approximately February 5, 2019, management tried to work Complainant out of his restrictions. 2020003378 5 3. On June 5, 2019, he was issued a Notice of Removal. The Agency subsequently notified Complainant that it would only accept claim 3 for investigation. In this regard, the Agency dismissed claims 1 and 2 due to Complainant’s failure to timely raise these claims. The Agency also found that claim 1 was a collateral attack on the proceedings of another forum. Thus, the Agency proceeded to investigate only claim 3. During the EEO investigation, the EEO investigator unsuccessfully attempted to contact S1 by email on May 16, 2019, to obtain an affidavit from her. ROI at 00392. Due to S1’s failure to respond, the EEO investigator physically mailed the affidavit to S1’s home address. Id. When S1 again failed to respond, the EEO investigator contacted the Postmaster of the Scranton Post Office on January 23, 2020, to request his assistance. Id. S1 eventually responded to the EEO investigator on January 30, 2020, to ask that the affidavit be sent to her personal email address. Id. at 00059. S1 then retired the next day without providing an affidavit. Id. The EEO investigator also did not obtain an affidavit from the Customer Service Supervisor because the EEO investigator determined that the Customer Service Supervisor, as the proposing official, did not have any material information to provide. Id. at 00062. Thus, the EEO investigator only obtained affidavits from Complainant and the Customer Service Manager. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In issuing the decision, the Agency initially determined that Complainant was an individual with a disability for the purposes of the Rehabilitation Act. However, the Agency found that the Agency had legitimate, nondiscriminatory reasons for removing Complainant from federal service, namely his extremely poor attendance record. While the Agency considered Complainant’s offer of pretext, the Agency determined that Complainant could not persuasively demonstrate that the Agency’s articulated reason was pretext for discrimination. CONTENTIONS ON APPEAL We shall address Complainant’s contentions on appeal, infra.6 The Agency did not file any contentions in response to Complainant’s appeal. ROI at 00012. We note that the Agency offered Complainant a modified assignment on February 12, 2019, following his February 11, 2019, examination with P2. 6 Along with his appellate brief, Complainant submits for the first time on appeal, two unsworn witness statements from his union steward and union president. While we acknowledge these statements, we note that the Commission does not generally consider newly submitted evidence, absent a showing that the evidence was not reasonably available prior to or during the investigation. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chapter 9, § VI.A.3 (Aug. 5, 2015). Because Complainant has not 2020003378 6 STANDARD OF REVIEW 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 (EEO MD-110), 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”). ANALYSIS AND FINDINGS Preliminary Matters We will first address the propriety of the Agency’s decision to dismiss claim 1 concerning Complainant’s allegation that the Agency subjected him to discrimination when on January 29, 2019, and other unspecified dates, management failed properly process his OWCP complaint and made false statements to OWCP. As the record clearly shows that Complainant first initiated contact with the EEO Office on July 12, 2019, more than 45 days after the date of the underlying incident, we find that the Agency properly found this claim to be untimely. ROI at 00012. However, even assuming arguendo that Complainant had timely raised claim 1, we find that the underlying allegation stills fail to state a claim, as the Commission has long held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Smith v. U.S. Postal Serv., EEOC Appeal No. 0120083233 (Sept. 24, 2008), citing Pirozzi v. Dep’t of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998) (alleged false statements made by agency to OWCP during OWCP’s processing of a workers’ compensation claim goes to merits of compensation claim); and Hogan v. Dep’t of the Army, EEOC Request No. 05940407 (Sept. 29, 1994) (reviewing an allegation that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers’ compensation benefits the complainant would likely have received) However, with regard to claim 2, we find that the Agency improperly dismissed the claim for failure to state a claim. Although Complainant indicated that claim 2 occurred on February 5, 2019, we note that the Commission has long held that a failure to accommodate may constitute a recurring violation that recurs anew each day that an employer fails to provide an accommodation. See Ludie M. v. Dep’t of Agric., EEOC Appeal No. 0120182812 (Nov. 2, 2018), citing Harmon v. Office of Pers. Mgmt., EEOC Request No. 05980365 (Nov. 4, 1999). provided an explanation as to why his newly submitted evidence was not reasonably available prior to appeal, we decline to consider this evidence. 2020003378 7 Our review of the record here shows that Complainant alleged that management regularly pushed him past his restrictions. ROI at 00085. Though Complainant filed several requests for reasonable accommodation, including one as recently as May 30, 2019,7 he was unable to perform the duties of the provided modified assignments and was ultimately taken off the clock on July 25, 2019, following the Step B decision. Given the circumstances in this case, we disagree with the Agency’s decision to dismiss the claim, as the allegations raised by Complainant appear to be recurring in nature. Therefore, we find that claim 2 should be remanded to the Agency for investigation, to include obtaining further clarification from Complainant as to how the Agency “worked [him] out of his restrictions” on February 5, 2019, and whether the Agency did indeed violate his medical restrictions. Claim 3 We turn now to claim 3, concerning Complainant’s removal. While we are certainly mindful that the Agency has cited Complainant’s excessive absences as the reason for removing him from federal service, we note that Complainant has repeatedly alleged that the reason for his excessive absences was due to the Agency’s failure to accommodate him. Having reviewed the record, we find that the record is inadequately developed for us to render a decision as to whether Complainant’s excessive absences were indeed the result of the Agency’s failure to effectively accommodate his disabilities. Here, our review of the record shows that Complainant has a long history of depression, which he attributed to the repeated unwanted comments that management allegedly made about his sexual orientation. The record further shows that from 2016 to 2018, Complainant took extensive amounts of FMLA and sick leave. Complainant’s leave usage increased significantly in 2019, following his on the job injury. Though Complainant claimed during the EEO investigation that management was aware about his mental disability, there is no indication in the record as to whether Complainant ever requested a reasonable accommodation for his mental disability,8 and if so, whether the provided accommodations were effective. Given the absence of such information, as well as the seriousness of the underlying allegations, we find that further development is warranted. 7 See Urgent Care Work Assessment Form, dated May 30, 2019, contained in ROI at 00097. 8 On appeal, Complainant provides, for the first time, copies of medical documentation that he allegedly gave to management on or around May 1, 2019 and June 5, 2019, to prove that the 14 days he was absent from work was due to his anxiety and depressive disorder. Complainant asserts that even after he submitted this medical information to his managers, “they still took no regard to [his] medical disability and/or [his] medical documentation and still used these dates against [him].” He asserts that the rest of dates listed on the Notice of Removal were related to the on-the-job injury that he sustained on January 29, 2019. While the Commission does not generally consider evidence that is submitted for the first time on appeal, Complainant will have the opportunity to submit these records during the supplemental investigation. 2020003378 8 As for Complainant’s physical disability, concerning his on the job leg injury, we find that the record is also unclear as to Complainant’s restrictions. In this regard, we note that on March 8, 2019, P3 opined that Complainant could walk for no more than four hours per day; however, P3 expressly limited Complainant to no more than three hours of walking per day, if the walking involved delivering mail on foot and climbing up to one step. ROI at 00095. We note that despite this clear limitation, the Agency gave Complainant a modified assignment on March 9, 2019, that required Complainant to walk up to five hours per day. Id. at 00283. Because Complainant alleged during the EEO investigation that he encountered difficulty “climbing steps, running, and walking inclines/declines for extended periods,” we find that further development is necessary to determine whether the Agency’s modified assignment violated Complainant’s restrictions, and if so, whether the violation contributed to Complainant’s excessive absences.9 In remanding the complaint, we direct the Agency to obtain affidavits from both the Customer Service Supervisor and Customer Service Manager, unless they have left the Agency’s employ.10 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision on claim 1. However, we REVERSE AND REMAND claims 2 and 3 to the Agency for further processing. ORDER The Agency shall take the following actions: 1. Within thirty (30) calendar days of the date this decision is issued, the Agency shall accept claim 2 for investigation and commence an investigation into claims 2 and 3. As part of the investigation, the Agency shall obtain a supplemental affidavit from Complainant. The Agency shall afford Complainant thirty (30) calendar days to respond to the request. The supplemental affidavit for Complainant shall consist of 9 Given that Complainant averred during the EEO investigation that the Agency required him to walk “up to 3 hours with delivery,” it appears that the Agency, in practice, did not violate Complainant’s restrictions as of the March 2019, modified assignment offer. ROI at 00075. However, we still find the need for further development to ascertain whether the Agency ever required Complainant to deliver mail for more than three hours per day. 10 The Commission reminds the Agency that failure to provide the requested information can result in sanctions; including the taking of an adverse inference against the Agency, and up to and including a finding of discrimination. “The federal agencies are mandated to submit to the rules, regulations, orders, and instructions as promulgated by the Commission, but in instances of non-cooperation by agencies, the Commission has determined that, given its inability to issue subpoenas to other federal agencies, the use of sanctions is a necessary component of the regulatory scheme in order to ensure that compliance.” See Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). 2020003378 9 the following questions, in addition to any questions that either the Agency or the EEO investigator deems to be relevant: a. Did you ever request a reasonable accommodation for your mental disability (e.g., depression), and if so, when did you request the accommodation(s)? Furthermore, explain in detail the nature and extent of your reasonable accommodation request(s), if any (e.g., the restrictions that you sought), and whom you made the request(s) to. b. You stated in your affidavit that the Agency required you stand, walk, drive, sit, bend, squat, climb, lift, push/pull, but you were unable to perform any of these tasks. ROI at 00075. Did any medical provider or OWCP medical examiner completely forbid you from engaging in these tasks, and if so, please identify the individual who imposed these medical restrictions? Were you unable to perform these tasks, in part or in full, at any time during the period between your injury in 2019 and your removal, and if so, please provide the dates when were you unable to perform these tasks and the extent of your restrictions. Did you regain your ability to perform any of these tasks, in part or in full, at any time up until your removal? c. You stated in your affidavit that you experienced difficulty climbing steps, running, and walking inclines/downward slopes for extended periods. ROI at 00076. You further stated that management required you to deliver mail on foot up to three hours per day. Id. at 00075. Were you required to deliver mail on foot for up to three hours per day for the entire period following your injury or only after March 2019? Were you at any time during the period between your injury in January 2019 until your removal, required to deliver mail on foot for more than three hours at a time, to include climbing steps and walking inclines/downward slopes? If so, please provide the dates when you were required to deliver mail on foot more than three hours per day. d. In your response to the proposed removal in 2019, you claimed that your absences were due to your injury-on-duty. ROI at 00221. Please explain in detail how your injury-on-duty prevented you from performing your duties. Were there any accommodations that the Agency could have provided that would have allowed you to perform the essential functions of your position? 2. Within thirty (30) calendar days of receipt of Complainant’s supplemental affidavit or after the expiration of the thirty (30) calendar day period, the Agency shall obtain an affidavit from the Customer Service Supervisor and a supplemental affidavit from the Customer Service Manager concerning Complainant’s mental and physical disabilities, requests for reasonable accommodation, and the reasons for his removal. 2020003378 10 3. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall issue a new final agency decision on claims 2 and 3 with appeal rights to the Commission. 4. 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). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003378 11 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020003378 12 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 9, 2021 Date Copy with citationCopy as parenthetical citation