[Redacted], Leon B., 1 Complainant,v.Antony Blinken, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Aug 12, 2021

Appeal No. 2020002697 (E.E.O.C. Aug. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Complainant, v. Antony Blinken, Secretary, Department of State, Agency. Appeal No. 2020002697 Agency No. DOS-0307-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 31, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether the Agency properly awarded Complainant no pecuniary compensatory damages and $15,000.00 in non-pecuniary compensatory damages. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a position with the Agency’s Diplomatic Security Service. On August 22, 2017, Complainant filed an EEO 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. 2020002697 2 complaint alleging that the Agency discriminated against him based on race (Hispanic),2 color (brown), age (46), and disability (physical) when his candidacy for a Diplomatic Security Foreign Service Special Agent position was terminated on July 12, 2017. On May 4, 2018, the Agency issued a final decision finding that Complainant did not prove that the Agency subjected him to discrimination as alleged, which Complainant appealed. The Commission reversed the Agency’s final decision. The Commission found that Complainant established a prima facie case of discrimination based on the Agency’s broad statement that the candidates who passed the assessment “range from all ages, races and gender[s].” The Commission then found that the Agency officials’ vague, conclusory statements about the assessment process did not explain why the Agency terminated Complainant’s candidacy. The Commission concluded that the Agency failed to overcome Complainant’s prima facie cases of discrimination based on race/national origin and age, and that Complainant prevailed without having to prove pretext. As part of the remedies, the Commission ordered the Agency to conduct a supplemental investigation on Complainant’s entitlement to compensatory damages.3 Leon B. v. Dep’t of State, EEOC Appeal No. 0120182144 (Nov. 5, 2019). On January 31, 2020, the Agency issued a decision on Complainant’s claim for compensatory damages. The Agency noted that Complainant submitted his own statement; statements from his ex-wife, sister, and a neurologist; and various medical records. The Agency found that the evidence from Complainant’s medical providers did not support his claim that the Agency’s action caused or exacerbated any of his medical conditions. Accordingly, the Agency did not award Complainant’s request for $2,017.17 in pecuniary compensatory damages for copayments, mileage, and medication. Regarding Complainant’s claim for non-pecuniary compensatory damages, the Agency found that Complainant’s conditions pre-existed the discrimination, such as his migraine headaches, irritable bowel syndrome (IBS), gastroesophageal reflex disease (GERD), and sleep apnea, but that Complainant did not provide documentation to prove, to what extent, they were aggravated. The Agency also noted that, while Complainant’s ex-wife and sister stated that changes in Complainant’s health and demeanor were due to the termination of his candidacy, the medical evidence did not support their conclusions. For example, the Agency stated that Complainant did not begin to see a psychiatrist until November 2018, long after the discriminatory event, and that Complainant informed his psychiatrist that he was frustrated in his attempts to communicate with his former spouse, and that he was working on his tolerance for others and communication skills. However, the Agency determined that the evidence supported a moderate award for non- pecuniary compensatory damages in the amount of $15,000.00. 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. 3 Complainant filed a petition for enforcement on his other remedies, which were addressed in Leon B. v. Dep’t of State, EEOC Petition No. 2020004262 (April 28, 2021). 2020002697 3 Complainant filed the instant appeal and submitted a brief and exhibits in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions Through his attorney, Complainant argues that the Agency improperly weighed evidence, failed to consider evidence, and selectively ignored evidence to reduce the compensatory damage award below what is appropriate. Complainant asserts that he presented sufficient evidence for $80,000.00 in non-pecuniary compensatory damages. Specifically, Complainant states that he submitted a large number of medical documents, which chronicled his IBS/GERD symptoms, including how they got worse after the Agency’s discriminatory non-selection, and how stress and emotional problems compounded the problems. Complainant also states that his medical evidence shows that he suffered an exacerbation of migraines “by the fall of 2017, noting Complainant’s exit from the federal government.”4 Complainant argues that while the Agency found that few of Complainant’s medical providers affirmatively stated that his conditions were exacerbated by the Agency’s discriminatory treatment, it did not provide alternative explanations or evidence contrary to the sworn testimonies from Complainant, his sister, or his ex-wife. Complainant states that the medical information repeatedly noted that “emotional factors” and “stress” were major contributing factors to Complainant’s conditions deteriorating. Complainant states that the Agency’s award is not in line with comparable cases. For example, in Herta R. v. U.S. Postal Serv., EEOC Appeal No. 0720150020 (May 6, 2016), the complainant was awarded $70,000.00 for headaches, insomnia, light-headedness, social impairment, difficulty communicating with her spouse, increased agitation, shortness of temper, decreased professional standing, and problems thinking and performing tasks; and in Emiko S. v. Dep’t of Transp., EEOC Appeal No. 0120120933 (Feb. 20, 2015), the Commission awarded $60,000.00 for exacerbation of depression and anxiety, hair loss, weight gain, sleeplessness, and migraines. Complainant argues that the Agency’s supporting cases involved allegations of harm and emotional distress that were substantially different than Complainant’s, and that the cases were more than seven years old. Complainant asserts that his pre-existing conditions of IBS/GERD and migraine headaches were exacerbated, and that his anxiety and depression are attributable, at least in part, to the Agency’s discriminatory conduct. Complainant requests a substantially increased award of non-pecuniary compensatory damages, as well as pecuniary compensatory damages. 4 The record shows that Complainant previously held a position with the U.S. Census Bureau; however, the timing of his employment is not noted. Report of Investigation at 105. 2020002697 4 Agency’s Contentions The Agency argues that Complainant’s submission on compensatory damages appeared to rest on the misconception that a finding of discrimination concerning his non-selection for a position with the Agency in July 2017 makes the Agency responsible for all of his medical expenses. However, an employer is only liable for the additional harm or aggravation of a pre-existing condition caused by its discrimination, and if the pre-existing condition would inevitably have worsened, the agency would be entitled to a reduction in the damages otherwise due. The Agency asserts that none of Complainant’s documentation identified his failure to achieve a position with the Agency as the cause of any of his medical conditions. In addition, neither Complainant’s testimony nor the medical documentation address which symptoms, or increase in symptoms, could specifically be associated with the finding of discrimination in this case. Regarding the migraine headaches, the Agency states that none of Complainant’s healthcare providers stated, or even suggested, that the discrimination involved in this complaint, which occurred in July 2017, caused or exacerbated his migraine headaches, which have been occurring since 2010. In addition, the Agency notes that Complainant disclosed to the Social Security Administration on February 7, 2019, that his 3-4 episodes per month of his headaches did not begin until January 23, 2018, or fully six months after the discrimination involved in this complaint. The Agency also asserts that the medical documentation shows that Complainant’s GERD and IBS were service-connected and have troubled Complainant since 2011, and 2015 or 2016, respectively. The Agency states that, while Complainant claimed that he did not suffer from any psychiatric issues until he was denied the Special Agent position, the record does not establish any psychological or psychiatric problems occurring at or near Complainant’s non-selection. Specifically, Complainant acknowledged that his first visit to a psychiatrist was in November 2018, or fifteen months after his candidacy for the Special Agent position was terminated. In addition, the Agency states that when Complainant went to the emergency room in December 2017, he answered “no” to the intake question about whether he was feeling hopeless about the present or future, and when Complainant saw a doctor in February 2018, he denied that he was depressed or anxious. The Agency notes that Complainant failed to acknowledge that many of the medical reports refute the statements from his sister and ex-wife that Complainant had “no mental problems” or no “depression or anxiety” prior to the termination of his candidacy for Special Agent. For example, Complainant reported that his feelings of low self-worth and non-productivity first originated after being declared disabled by the Veterans Affairs (VA) in 2016. With respect to Complainant’s social life, the Agency asserts that Complainant’s medical records revealed that his anxiety was not primarily attributable to his non-selection for a position with the Agency. For example, the January 22, 2019 report of his psychiatrist reflects that Complainant felt that he was not being understood and was frustrated due to communication issues with his ex-wife. 2020002697 5 While Complainant’s sister and ex-wife noted that Complainant had difficulty sleeping and suffered from fatigue since his candidacy was terminated, an April 9, 2018 report noted that Complainant’s service-connected GERD and IBS were responsible for his sleep disturbance. The Agency also notes that the evidence shows that Complainant’s symptoms coincided with his “filing suit,” and that his “EEOC case increased patient’s anxiety and depression.” However, a complainant cannot recover compensatory damages for emotional distress allegedly endured as a result of participating in the EEO process, and the November 12, 2019 report from Complainant’s psychiatrist states that Complainant was experiencing stress concerning his pending discrimination claim, which dated back to 2012. The Agency argues that the cases cited by Complainant in his appeal are easily distinguishable. In Herta R., supra, the complainant was subjected to unlawful reprisal harassment over the course of six months, including repeated disciplinary action, which affected the way the complainant’s coworkers treated her, further exacerbating her anxiety and depression. In Emiko S., supra, the agency caused the complainant’s emotional distress by failing to reasonably accommodate her; removing her; and then waiting an additional 18-month period before reinstating her. In this case, the Agency asserts that it did not subject Complainant to unlawful discrimination over an extended period of time, but instead, to a single discrete personnel action. The Agency argues that Complainant’s case was more similar to Archie G. v. Dep’t of Justice, EEOC Appeal No. 0120141305 (Nov. 30, 2016), in which the complainant was awarded $3,000.00 in non- pecuniary compensatory damages for discrimination when he was not selected for a position, and he experienced emotional problems, severe stress, loss of sleep, anxiety attacks, and depression, but that the complainant’s evidence showed that most of his injuries could also be attributed to other problems he had at that time. The Agency asserts that much of Complainant’s distress can be attributed to other problems he was experiencing, such as his struggles to reconcile with his ex-wife, and that most of his other physical symptoms, including his service-connected GERD and IBS, were pre-existing and causative of the other symptoms he experienced. The Agency requests that the Commission affirm its final decision. 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 Chap. 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 2020002697 6 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Compensatory Damages Pursuant to section 102(a) of the Civil Rights Act of 1991, a complainant who establishes unlawful intentional discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., may receive compensatory damages for past and future pecuniary losses (i.e., out- of-pocket expenses) and non-pecuniary losses (e.g., pain and suffering, mental anguish) as part of make-whole relief. 42 U.S.C. § 1981a(b)(3). In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that Congress afforded the Commission the authority to award compensatory damages in the administrative process. For an employer with more than 500 employees, such as the Agency, the limit of liability for future pecuniary and non-pecuniary damages is $300,000.00. 42 U.S.C. § 1981a(b)(3). Pecuniary Compensatory Damages Pecuniary losses are out-of-pocket expenses incurred because of the agency’s unlawful action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. Past pecuniary losses are losses incurred prior to the resolution of a complaint through a finding of discrimination, or a voluntary settlement. EEO MD-110 at Chap. 11, §VII.B.2. Future pecuniary damages are losses likely to occur after the resolution of the complaint. In a claim for pecuniary compensatory damages, a complainant must demonstrate, through appropriate evidence and documentation, the harm suffered because of the agency’s discriminatory action. Objective evidence in support of a claim for pecuniary damages includes documentation showing actual out-of-pocket expenses with an explanation of the expenditure. The agency is only responsible for those damages that are clearly shown to be caused by the Agency’s discriminatory conduct. To recover damages, a complainant must prove that the employer’s discriminatory actions were the cause of the pecuniary loss. Id. Here, Complainant did not present any arguments on appeal regarding his request for pecuniary compensatory damages, and in his affidavit, Complainant requested $1,564.54 for reimbursements including copayments, mileage, and a sleep study. Report of Investigation (ROI) at 30. In support of his request, Complainant included mileage logs for various medical appointments from March 6, 2018, through December 4, 2019, and receipts from his visits. However, we note that Complainant did not provide further details for these medical appointments and it is not evident that they were related to treatments related to the Agency’s discrimination. For example, Complainant visited a medical clinic on December 4, 2019, to address his acute sinusitis and a cough, which Complainant did not connect to the Agency’s action. We also note that the submitted medical bills do not show the reason(s) for Complainant’s visits. ROI at 37-52. 2020002697 7 We also find that there is no supporting explanation for Complainant’s request for mileage for pharmacy visits, starting from March 4, 2017, which predate the Agency’s discrimination. ROI at 54-6. In addition, Complainant provided a comprehensive list of his medications for reimbursement, without a justification for why the Agency should pay for all his medications. ROI at 57-62. Complainant also requested reimbursement for costs related to a sleep study. ROI at 69-74. However, the record shows that Complainant suffered from severe sleep apnea and has been using a “CPAP” (continuous positive airway pressure) since 2011. ROI at 165. In addition, the record establishes that Complainant’s complained of physical conditions pre-dated the Agency’s 2017 discrimination. Specifically, Complainant was diagnosed with migraines in 2010, GERD/IBS in 2016, and GERD in 2011. ROI 147, 103. Further, the record indicates that Complainant’s migraine headache condition, sleep apnea, GERD, and IBS were service- connected. ROI at 108. Complainant submitted costs related to visits to psychiatrists. However, based on the notes from his initial visit on November 26, 2018, we find that it is not clearly shown that the Agency’s discrimination was the cause of Complainant’s depression and/or anxiety. For example, Complainant reported his “Chief Complaint” as “I was a Naval Officer.” While Complainant described his feelings of perceived injustice at being denied a federal position, it was noted that his feelings “began since filing suit in 2016.” ROI at 83. We note that the Agency’s discrimination occurred in 2017, so it appears that another earlier incident, and not the Agency’s action, caused Complainant’s depression and anxiety. Complainant also requested reimbursement for expenses related to the notarization of his ex- wife’s statement in support of his claim of compensatory damages. However, this cost is not properly part of Complainant’s pecuniary compensatory damages, and it should be submitted with the costs related to the processing of Complainant’s EEO complaint. We find that Complainant did not clearly show that the Agency’s discrimination was the proximate cause of any of his conditions, and we AFFIRM the Agency’s determination to not award any pecuniary compensatory damages. Non-Pecuniary Compensatory Damages Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health. See Enforcement Guidance on Compensatory and Punitive Damages Available Under Section 102 of the Civil Rights Act of 1991, EEOC Notice No. 915.302, at 10 (July 14, 1992). 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 Treasury, 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. 2020002697 8 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). Evidence from a health care provider or other expert is not a mandatory prerequisite for recovery of compensatory damages for emotional harm. See Lawrence v. U.S. Postal Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996) (citing Carle v. Dep’t of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)). Objective evidence of compensatory damages can include statements from Complainant concerning his emotional pain or suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character or reputation, injury to credit standing, loss of health, and any other non-pecuniary losses that are incurred as a result of the discriminatory conduct. Id. Statements from others including family members, friends, health care providers, other counselors (including clergy) could address the outward manifestations or physical consequences of emotional distress, including sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self-esteem, excessive fatigue, or a nervous breakdown. Id. Complainant’s own testimony, along with the circumstances of a particular case, can suffice to sustain his burden in this regard. Id. The more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action. Id. The absence of supporting evidence, however, may affect the amount of damages appropriate in specific cases. Id. An award of non-pecuniary compensatory damages should reflect the extent to which the agency’s discriminatory action directly or proximately caused the harm as well as the extent to which other factors also caused the harm. Johnson v. Dep’t of the Interior, EEOC Appeal No. 01961812 (June 18, 1998). It is the complainant’s burden to provide objective evidence in support of his claim and proof linking the damages to the alleged discrimination. Papas v. U.S. Postal Serv., EEOC Appeal No. 01930547 (Mar. 17, 1994); Mims v. Dep’t of the Navy, EEOC Appeal No. 01933956 (Nov. 23, 1993). In this case, we find that the Agency’s award of $15,000.00 for non-pecuniary damages was appropriate based on the circumstances. While we found that the Agency’s discrimination was not the proximate cause of any of Complainant’s conditions, Complainant stated that the Agency’s discrimination exacerbated some of his conditions, such as his anxiety, depression, poor sleep, headaches, GERD, and IBS. In addition, Complainant, his ex-wife, and his sister stated that Complainant also experienced emotional changes, such as feelings of frustration, anger, and bitterness; avoiding crowds and withdrawing from social engagements; and experiencing weight fluctuations. ROI at 32-33, 65, 181. Regarding Complainant’s depression and anxiety, we note that the medical evidence suggests that these conditions were not severe until November 2018, when Complainant first sought treatment for them. 2020002697 9 Specifically, on December 30, 2017, Complainant visited a medical provider and responded that he was not feeling hopeless about the future nor had thoughts of self-harm, and Complainant informed a doctor that he was not experiencing anxiety or depression on February 1, 2018. ROI at 138, 149. We find that an award of $15,000.00 for non-pecuniary compensatory damages is in line with prior Commission decisions. See Letitia C. v. Dep’t of Veterans Affairs, EEOC Appeal no. 2020000230 (Jan. 11, 2021) (the complainant was awarded $20,000.00 for an exacerbation her pre-existing post-traumatic stress disorder, resulting in increased stress and depression, paranoia, anxiety, and the end of her marriage from the agency’s discriminatory non-selection); Bryan T. v. U.S. Postal Serv., EEOC Appeal No. 2019006011 (Aug. 20, 2020) (the complainant was awarded $25,000.00 for insomnia, exhaustion, listlessness, overall malaise, stress, mental anguish, family problems, depression, agitation, impatience, and loss of self-confidence and self- worth from the agency’s discriminatory non-selection); Cleveland C. v. Dep’t of Justice, EEOC Appeal No. 0120171384 (Mar. 5, 2019) (the complainant was awarded $10,000.00 for humiliation, stress, depression, anger, and withdrawal from work and family as a result of the agency’s discriminatory non-promotion). While we note that previous cases awarded higher amounts for non-pecuniary damages, in this case, there is evidence that there were other reasons for Complainant’s harms, such as relationship issues with his ex-wife and feelings of low self-worth after being declared disabled by the VA. ROI at 82. Complainant also noted stress and anxiety from having left a federal position. ROI at 33. In addition, the Commission has found that compensatory damages are not available for stress from pursuing an EEO complaint. See Appleby v. Dep’t of the Army, EEOC Appeal No. 01933897 (Mar. 4, 1994). Here, the record contains evidence that Complainant experienced stress from pursuing EEO complaints. As noted above, Complainant reported anxiety from filing a discrimination suit in 2016. ROI at 83. Complainant later reported that he experienced stress from when he started the process for a discrimination claim in 2012, and Complainant noted “EEOC case increased patient’s anxiety and depression” in a Patient Health Questionnaire.5 ROI at 77, 125. Accordingly, we AFFIRM the Agency’s award of $15,000.00 for non-pecuniary compensatory damages. 5 The Agency notes that the form is undated, but it was reasonable to assume that it was completed when Complainant first began seeing a psychiatrist in November 2018. 2020002697 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 to award no pecuniary compensatory damages and $15,000.00 in non-pecuniary compensatory damages.6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 6 We note that Agency records indicate that it paid Complainant $ 15,000.00 on July 15, 2020. 2020002697 11 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 12, 2021 Date