[Redacted], Roy E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 13, 2021

Appeal No. 2020003418 (E.E.O.C. Sep. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roy E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003418 Hearing No. 560-2017-00151X Agency No. 2003-0677-20161002903 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 April 14, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues are whether the Agency should be sanctioned for issuing an untimely final decision; and whether Complainant established that the Agency subjected him to discrimination or harassment in reprisal for prior protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker at the Agency’s Veterans Affair Medical Center in Topeka, Kansas. He previously worked in the Housekeeping Department. 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. 2020003418 2 Complainant stated that he filed an EEO complaint against his former managers, and the EEO complaint was resolved by transferring him to the Food Service Department. Complainant stated that the Chief of Housekeeping (CH) and the Chief of Food Service (CFS) carpooled together every day, and he believed that CH informed CFS of his prior EEO complaint. Report of Investigation (ROI) at 105-6. Complainant stated that in September 2015, he noticed CFS watching him work and staring at him. ROI at 108. Complainant stated that on an unspecified date, he returned from the parking lot, and his first-line supervisor (S1) asked him why he was in the parking lot. According to Complainant, he explained that he was on a break and went to retrieve something from his car. ROI at 114. On October 5, 2015, the Agency approved Complainant’s request for the Family and Medical Leave Act (FMLA) Program. The Agency informed Complainant that his FMLA leave could be used intermittently, once approximately every three months. The Agency noted that any absences beyond this frequency and duration would not be protected by FMLA. ROI at 298-9. Complainant stated that in January or February 2016, CFS asked where Complainant was going, and he responded that it was his break time, so he was leaving. Complainant stated that he informed CFS that once the dishes were in the dishwashing machine, he had to wait. ROI at 116- 7. Complainant stated that in March 2016, S1 approached him and stated that CFS asked if there was something that Complainant should be doing, such as cleaning, sweeping, or mopping, and he responded that he already completed those duties. ROI at 117-18. Complainant stated that on March 4, 2016, CFS asked if he was doing anything, and he responded that he was doing his job. Complainant stated that CFS then asked if there was anything he could do while he was waiting, and he responded that he could not wander off while he was waiting for food to be plated. ROI at 125-6. On March 7, 2016, the Agency informed Complainant that his FMLA leave was approved for him to take one day every three months, but that he had taken six days since January 5, 2016. Complainant was informed that he would need to provide additional medical documentation to support any FMLA leave beyond what had been previously approved. ROI at 300. Complainant stated that he was charged with absence without leave (AWOL), instead of FMLA leave. ROI at 120. On March 28, 2016, Complainant’s second-line supervisor (S2) was forwarded an email regarding Complainant using a room to watch television. Complainant was informed that the veterans were leery of strangers and, when he was in a room that was considered their living quarters, he was asked to leave. Complainant responded, “Jesus Christ,” as he walked out. ROI at 306-7. On April 12, 2016, S2 issued Complainant a Written Counseling for loafing, wasting time, and disrespectful conduct. S2 noted that Complainant was observed watching television in patient living quarters when it was not his break time. Complainant was asked to leave, which he challenged, and when he was asked to leave a second time, he stated, “Jesus Christ.” ROI at 308. 2020003418 3 On May 16, 2016, S1 emailed Complainant and stated that she previously instructed him not to bring carts with a tractor.2 S1 stated that she was issuing a written counseling because Complainant brought two carts with a tractor, which was a safety hazard. S1 also noted that when Complainant was instructed to bring items back, he responded, “don’t put me in the f-----g shit,” and that her email was a written counseling for Complainant’s disrespectful conduct. ROI at 314. On June 28, 2016, Complainant filed an EEO complaint alleging that the Agency harassed him in reprisal for prior protected EEO activity when: 1. in September 2015, CFS watched, stared, and followed Complainant around; 2. on an unspecified date in late 2015, S1 questioned Complainant about why he was in the parking lot; 3. in approximately January or February 2016, CFS stalked Complainant and asked him questions that she had already asked previously; 4. in March 2016, CFS asked Complainant, “why are you just standing there?”; 5. in March 2016, CFS charged Complaint with 23 hours of AWOL; 6. on March 4, 2016, CFS questioned Complainant about his whereabouts on two occasions; 7. on April 12, 2016, CFS issued Complainant a Letter of Counseling;3 and 8. on May 16, 2016, S1 issued Complainant a written counseling via email message. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Accordingly, on September 13, 2019, the AJ ordered the Agency to issue a final decision within 60 days. On April 1, 2020, Complainant filed a Motion for a Default Judgment with the AJ, who denied the motion. The AJ stated that she no longer had jurisdiction over Complainant’s complaint since he withdrew his hearing request. On April 14, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency noted that claim 5 was dismissed as a discrete act because it was not timely raised, and it would only be considered as part of Complainant’s harassment claim. 2 Complainant stated that they use a tractor to pull the food carts. ROI at 132. 3 The record shows that S1 issued this Letter of Counseling, not CFS. ROI at 308. 2020003418 4 The Agency also noted that incidents 7 and 8 were timely discrete claims and would analyze them as such, in addition to including them in Complainant’s harassment claim. The Agency found that Complainant established a prima facie case of reprisal. The Agency then found that management officials articulated legitimate, nondiscriminatory reasons for claims 7 and 8, and that Complainant had not shown that the reasons were pretext for discrimination. The Agency also determined that Complainant did not show that he was subjected to harassment because the allegations reflected common workplace conduct, which has consistently been deemed insufficient to constitute unlawful harassment. The Agency concluded that Complainant did not prove that he was subjected to discrimination as alleged. Complainant filed the instant appeal and submitted a brief 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 should be sanctioned with a default judgment for its untimely issuance of the final decision, which was 154 days late. Complainant states that the delay was unexplained, and that he was prejudiced because he was not able to find meaningful resolution to his claims or take additional action on his matter. Complainant also argues that he was subjected to a hostile work environment based on his protected EEO activity. Complainant states that management officials were aware of his prior EEO complaint and subsequently subjected him to “extreme and disparate levels of supervision” and stalking. Complainant asserts that the treatment unreasonably interfered with his ability to do his job because he was constantly concerned with whether his work activities would be questioned by his supervisors. Complainant states that CFS retired and when her successor issued him a notice of proposed removal for unauthorized absences and tardiness in October 2017, he immediately resigned.4 Complainant requests that the Commission enter a default judgment and award him attorney’s fees and other remedies. 4 The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Should he wish to pursue this new claim, Complainant is advised to contact an EEO Counselor to initiate the administrative process. For timeliness purposes, if Complainant’s initial contact would have been timely on the date he filed his appeal (May 14, 2020), then Complainant’s contact will be deemed timely if initiated within ten (10) days of the date he receives this decision. 2020003418 5 Agency’s Contentions The Agency argues that Complainant is not entitled to a default judgment. The Agency states that in 2019, it received a 38% increase in requests for a final decision from the previous year. The Agency also notes that the pandemic caused workplace disruptions and it took a month to convert its workforce to fulltime virtual work. The Agency asserts that the delay was not deliberate, and instead caused by a high workload and the transition required by the pandemic. The Agency also argues that the delay had no prejudicial effect or impact on the integrity of the EEO process. The Agency asserts that Complainant did not establish that the complained of conduct was in reprisal for his prior EEO activity, or that the incidents were sufficiently severe or pervasive to alter the conditions of his employment and create a hostile work environment. The Agency argues that Complainant’s contention, that CH told others of his EEO activity, was not supported by the record because CFS stated that she was aware of Complainant’s EEO complaint due to his reassignment to her team and not because CH provided any details of Complainant’s EEO activity during the carpool. The Agency states that Complainant’s complaints (that his supervisors watched his work; asked him what tasks he was doing; asked him repeated questions; and asked for his whereabouts) were the regular responsibilities of a service line leader and such actions hardly constitute stalking. Further, the Agency notes that there was ample evidence that CFS questioned all employees and was known to wander the floor. The Agency also states that its policy stipulates that employees check with management before going to the parking lot when they are at work, save for lunch periods, and that it was reasonable for S1 to ask why Complainant was in the parking lot. The Agency requests that the Commission issue a decision in its favor. 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 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020003418 6 ANALYSIS AND FINDINGS Sanctions On appeal, Complainant requests that the Commission sanction the Agency with a default judgment for its failure to timely issue a final decision. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). Here, the final decision was due by November 12, 2019, and it not issued until April 14, 2020, which was 154 days late. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in “tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007). The Agency explained that the delay in issuing the final decision was due to an increased workload and its response to the pandemic. While Complainant argues that he was prejudiced because he was not able to find meaningful resolution to his claims or take additional action on his matter, we find that Complainant has not shown an actual harm or consequence caused by the delay. In this case, we find that the Agency did not act in a manner to warrant a default judgment. See e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal No. 0120142023 (July 19, 2016), req. for recon. den’d, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing a final decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay). Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after approximately 371 days)). Accordingly, under the specific circumstances of this case, we decline to issue sanctions against the Agency for the delay in issuing the final agency decision. We take this opportunity, however, to remind the Agency of its obligation to comply with Commission regulations in a timely manner. 2020003418 7 Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of reprisal, we find that the Agency proffered legitimate, nondiscriminatory reasons for claims 7 and 8. Regarding claim 7, S2 stated that after she received a report of contact she met with Complainant to obtain his side of the story regarding the allegations. S2 stated that Complainant had not been following his job breakdown, and she let the matter stand. S2 noted that, had Complainant been following his job breakdown, she would have been more supportive of Complainant being in that location. ROI at 191-2. For claim 8, S1 stated that she issued Complainant a written counseling because he pulled two carts with a tractor through the kitchen, after being told two weeks earlier not to do so. Further, when she asked Complainant to take items back, he began to cuss. ROI at 174-6. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Complainant did not cite to evidence to prove that the proffered reasons were not worthy of belief. Rather, for claim 7, Complainant confirmed that two nurses informed him that he was not allowed in the room and he responded, “Jesus Christ,” before walking out. ROI at 128. Regarding claim 8, Complainant claimed that he had seen other people drive two carts, and witnesses stated that others had driven a tractor through the kitchen. ROI at 133, 230, 235, 244. However, we find that there is no evidence that S1 was aware of other employees who drove two carts attached to a tractor through the kitchen. In addition, we note that Complainant was also issued the written counseling, in part, due to his use of profanity, which he did not dispute. ROI at 130-1. 2020003418 8 Complainant alleged that management officials were not telling the truth. ROI at 142. However, Complainant withdrew his hearing request and we do not have the benefit of any credibility determinations by an Administrative Judge. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, we find that Complainant has not shown pretext for discrimination. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. As such, we find that Complainant did not establish that the Agency retaliated against him for protected EEO activity when it issued him two written counselings. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant engaged in protected EEO activity and was subjected to unwanted conduct. However, for incident 5, we find that there is no evidence that Complainant was charged AWOL in reprisal for his prior EEO activity. A Human Resource Specialist stated that Complainant was charged AWOL because he failed to follow procedure after he used his approved FMLA leave. ROI at 223. S1 explained that Complainant was charged AWOL because he did not provide additional information and did not have any sick or annual leave available. S1 added that she was not authorized to approve leave without pay. ROI at 170-2. The record shows that on August 31, 2016, S2 was informed that Complainant had not yet provided updated medical information, as requested in March 2016. ROI at 305. 2020003418 9 As discussed above, we found that Complainant did not establish a case of retaliation for claims 7 and 8. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that these actions taken by the Agency were motivated by his protected basis. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment in reprisal for prior EEO activity in claims 55, 7, and 8. Assuming that the remaining complained of conduct was based on Complainant’s protected class, we find that they did not unreasonably interfere with his work performance or create an intimidating, hostile, or offensive work environment. CFS stated that it was not unusual for her to be out observing the operation and questioning employees if they were not in their work area. ROI at 147, 149. S1 stated that she asked why Complainant was in the parking lot because she did not know why he was there and had a need to know his location in case there was a need to reach him. ROI at 169. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). On appeal, Complainant argues that he was subjected to “extreme” supervision and stalking. However, we find that a management official occasionally observing an employee while working or asking questions related to his duties and location during the workday are not extreme, nor considered stalking. We find that, when looking at the totality of the circumstances over the course of seven months, the complained of conduct was not abusive or offensive, and do not rise to the level of unlawful harassment. In addition, to prevail in a retaliatory harassment claim, a complainant must show that a reasonable person would have found the challenged action materially adverse, i.e., an action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination in the future. Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). As noted above, we did not find the Agency’s actions to be inappropriate and conclude that they would not reasonably deter an employee from engaging in protected EEO activity. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment in reprisal for his prior protected EEO activity. 5 Since complainant does not raise the dismissal of claim (5) on appeal, we decline to address it. The Commission exercises its discretion to review only the issue specifically raised in complainant's appeal. See EEO MD-110 at Chap. 9, § IV.A. 2020003418 10 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that sanctions against the Agency are not warranted. We AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment in reprisal for prior protected EEO activity. 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. 2020003418 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 September 13, 2021 Date