[Redacted], Verna G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Office of the Inspector General), Agency.

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2021002347 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verna G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Office of the Inspector General), Agency. Appeal No. 2021002347 Hearing No. 450-2020-00203X Agency No. 56-000-0001-20 DECISION On March 9, 2021, 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 March 1, 2020 final decision concerning her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Agent/Criminal Investigator, A-05 (GS-13 equivalent), at the Agency’s Office of Inspector General, ESAC Southern Area Field Office in Coppel, Texas. On November 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), age (45), and reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021002347 2 1. On September 20, 2019, Complainant was notified that effective October 1, 2019, she was being involuntarily transferred from Provider Fraud to the Mail Theft team in a new duty location; and 2. On September 30, 2019, Complainant was notified that she would be allowed to telework no more than once per work week despite that not being the standard the prior year. The Agency accepted the foregoing claims and conducted an investigation into the matter. The investigation showed Complainant is an African American female, aged 45 at the time of the events giving rise to this complaint, and she has filed two prior EEO complaints (one in September 2017 and one in December 2018). In the instant case, she alleges discrimination and retaliation by her first line supervisor/the Assistant Special Agent in Charge (ASAC) (Caucasian male, age 44), her second line supervisor/the Deputy Special Agent in Charge (DSAC) (Caucasian male, age 43), and her third line supervisor/the Special Agent in Charge (SAC) (Caucasian male, age 51). The record reflects that ASAC, DSAC, and SAC all participated in at least one of Complainant’s prior EEO complaints as witnesses or was named as the responsible management official. Complainant was previously supervised by ASAC while working a mail theft assignment in Houston, Texas, at some point prior to Fiscal Year 2019 (FY19). During that time, she expressed her interest in diversifying and working in Provider Fraud to ASAC, DSAC, and SAC. She later transferred from the Houston, Texas area to Bedford, Texas in the Dallas-Fort Worth, Texas area and she did receive a Provider Fraud Team assignment, which is where she was working in FY19. Claim 1 - Involuntary Reassignment On September 20, 2019, Complainant was notified that effective October 1, 2019, she would be reassigned and involuntarily transferred from her Provider Fraud Team position in Bedford, Texas, to a Mail Theft Team position in Coppell, Texas. Complainant states she was told she was reassigned because she was a veteran mail theft and financial fraud agent who would bring a wealth of knowledge back to an inexperienced team. However, she felt this was not the real reason for her reassignment because these same skills had not earned her a promotion. Complainant believes her reassignment was retaliation for her prior EEO activity since there were several other agents with mail theft and financial fraud experience in the Dallas area who could have been reassigned instead. She also noted that since her reassignment took place, another agent has been reassigned from Mail Theft to Narcotics. She testified she believes her race was a factor in her reassignment because she is the only African American on the team. She stated her sex was a factor because there are other individuals on the Provider Fraud Team in Bedford that have mail theft experience, including males, but she was the one reassigned. She believes her age was a factor because there were other individuals on the Provider Fraud Team in Bedford that have mail theft experience, but she is the eldest. 2021002347 3 Complainant identified four comparators she believed were treated more favorably because they have mail fraud experience but were not reassigned. The first comparator is a Caucasian female, age unknown (but believed to be over 40) with unknown prior EEO activity. The second comparator is a Caucasian male, age unknown with unknown prior EEO activity. The third comparator is a Latina female, age unknown with unknown prior EEO activity. The fourth comparator is a Caucasian male, age unknown with unknown prior EEO activity. SAC testified that to meet the mission and goals of the Office of Investigations (OI) each new fiscal year, the Southern Area Field Office (SAFO) leadership must typically reassign agents to new teams. OI’s FY20 focus was narcotics and Claimant Fraud. To align with the mission, SAFO added agents to those focus areas and reduced the number of agents working on other areas of focus. Five agents, including Complainant, were moved to new assignments/teams, with a plan to reassign seven more agents. SAC testified that ASAC requested Complainant move to his Mail Theft Team as she had approximately 15 years of mail theft experience, he had supervised her previously, and he thought his team would benefit from her experience. ASAC testified that in August 2019, he became aware SAC was looking to reassign an agent or agents from the Provider Fraud Team located in Bedford, Texas to the Mail Theft Team located in Coppell, Texas. SAC explained to ASAC that a realignment of organizational priorities would likely necessitate the downsizing of the Provider Fraud Team and SAC solicited ASAC’s opinion on whether Complainant or another Provider Fraud Team agent would do well in Mail Theft. ASAC testified he offered his opinion and stated that Complainant was a highly experienced mail theft agent who historically did well when she was working mail theft in Houston. He offered that he would enjoy having her on his mail theft team in the Dallas-Forth Worth area if that was an option, especially because three of his five team members at that time were new OIG agents who had little to no internal mail theft background. ASAC testified no one discussed with him the possibility of moving Complainant to the Claimant Fraud Team (in Bedford, Texas and Richland Station, Texas) and he does not manage or oversee that team. However, he said it was his understanding there were no vacancies in the Dallas-Fort Worth Claimant Fraud assignment and no additional allocations would be made to that assignment in FY20. ASAC also noted that the distance between the Bedford office and the Coppell office is 15 miles or a 20-minute drive. He averred the distance/geography between the two locations is minimal. SAC testified that it was his decision to transfer Complainant with concurrence and feedback from his leadership team. He stated the decision was based on Complainant’s 15 years of experience in federal law enforcement and mail theft. Complainant was transferred to the Mail Theft Team in Coppell, Texas because of her extensive mail theft experience and because the entire mail theft team is physically located in Coppell, Texas where the largest mail plant is located and where ASAC is located. SAC testified he could not allow Complainant to continue working her Provider Fraud Team assignment or a Claimant Fraud assignment because the Agency had changed its investigative focus for FY20 and he had too many agents working Provider/Claimant Fraud assignments in the Dallas-Fort Worth area. 2021002347 4 SAC testified that the first two comparators named by Complainant (Caucasian male and Caucasian female) had extensive Health Care Provider Fraud experience so they were needed to continue working the Provider Fraud cases. The third comparator (Hispanic female) had been reassigned from Provider Fraud on October 14, 2017 and then reassigned to the Claimant Fraud Team on October 1, 2018. This comparator had several criminal Claimant Fraud cases that required her to continue working on them. The fourth comparator (Caucasian male) was needed to continue working Provider Fraud cases because of his knowledge, experience, and current caseload. He possessed strong analytical background needed to work these complex cases. SAC and ASAC both testified that Complainant’s sex, race, age, and prior EEO activity were not a factor in her reassignment. DSAC testified that he had discussed Complainant’s reassignment and other possibilities with SAC but he was not present when the decision was made. Both SAC and ASAC made him aware of the decision after it had been made. DSAC stated he was unable to say whether Complainant’s sex, race, age, and prior EEO activity were factors in her reassignment because he did not make the decision to reassign her. However, he testified Complainant’s sex, race, age, and prior EEO activity were never factors in any of his actions or involvement regarding Complainant’s allegations. ASAC noted that OIG’s Reassignment policy specifically states that OIG “may reassign employees at any time, with or without relocation, based on OIG needs.” (ROI, pp. 118-119, 128). Claim 2 - Telework Restriction On September 30, 2019, ASAC emailed Complainant to welcome her to the Mail Theft Team and provide some administrative information. The email noted several time, attendance, and leave expectations. ASAC wrote that these were team expectations (that he would go over in an upcoming team meeting). One of these was the limitation of telework to one day a week. ASAC stated the telework limitation was “due to the reactive nature of the assignments that our team covers. I need to have folks in the office, able to collaborate and react to events when they occur. If there are special circumstances or projects that would lend themselves to additional telework, please get with me to discuss. Approvals will be on a case by case basis.” (ROI, p. 129). This telework restriction was reiterated during an October 18, 2019 team meeting and appears in the notes from that team meeting. It was again reiterated in an email to the team on October 21, 2019. Complainant asserts this is discriminatory and in retaliation for her prior EEO activity. She notes that restriction of telework to one day a week was not a requirement when she previously served on ASAC’s team in the past, it was not a requirement for ASAC’s FY19 team, and this restriction does not apply to other Mail Theft teams or any team within SAFO. Complainant acknowledged ASAC’s entire Mail Theft Team was told during an October 2019 team meeting to keep telework to one day a week and ASAC subsequently emailed the entire team that telework was being held to one day a week. Complainant testified she believed her race was a factor regarding the telework restriction because she is the only African American on the team and she has prior EEO activity. 2021002347 5 Complainant identified two members of ASAC’s team that were allowed to telework more than one day a week. She indicated that both of these individuals are Caucasian females that she believes to be over age 40 with unknown prior EEO activity. ASAC testified that this telework restriction applies to the entire Mail Theft team in Coppell, and it has been in place since May 28, 2019, well before he knew Complainant might be reassigned. He indicated he had encouraged only one day of telework per week prior to that date but he did not formally communicate it as policy until May 28, 2019. He stated that he has previously approved two days a week of telework for agents for unique, non-recurring situations. However, as a manager, he has never allowed an agent to work more than two telework days per week. The record reflects ASAC sent an email to one of his newer team members on May 23, 2019, in which he advised the agent that he was now eligible to telework but the agent needed to keep in mind that telework was “[l]imit[ed] to one day a week (team policy).” (ROI, p. 148). Notes from a May 28, 2019 team meeting reflect telework was “[l]imit[ed] to one day/week - barring special situation.” (ROI, p. 147). This was communicated to Complainant via a September 30, 2019 email. (ROI, p. 129). Telework was discussed during an October 18, 2019 team meeting and appears in the notes from that team meeting. (ROI, pp. 132-133). It was again reiterated in an email to the team on October 21, 2019 that stated “[t]elework is limited to one day per work week.” (ROI, p. 139). On January 28, 2020, ASAC emailed another new agent allowing them to telework but reminding them that telework is “[l]imit[ed] to one day a week (team policy).” (ROI, p. 149). ASAC further testified that the first employee named by Complainant as working more than one day of telework per week was allowed to telework two days a week up to May 28, 2019 when she was subjected to the telework policy restriction of one day a week communicated by ASAC in a team meeting. However, she did not actually telework more than one day a week. Additionally, she was reassigned effective October 1, 2019, and no longer under ASAC’s supervision at that point. The second employee named by Complainant was also allowed to telework two days a week up to May 28, 2019, when she was subjected to the telework policy restriction of one day a week communicated by ASAC in a team meeting. She did subsequently telework two days during the week of July 8, 2019 and two days during the week of July 15, 2019. These telework requests were submitted and approved following the May 28, 2019 policy change. However, ASAC averred that due to a combination of professional travel and annual leave, he was not the one who approved these requests. They were approved by a manager acting in ASAC’s place. He noted this employee requested a second telework day the week of August 5-9, 2019 and he asked her to be observant of the one-day policy. She maintained one day of telework per week until she transferred to another team effective October 1, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision 2021002347 6 pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends evidence was presented and ignored, and that there are discrepancies and inconsistencies in management’s response. She states the Agency should take a more expansive view of “similarly situated employees” based on case law in the Seventh and Eleventh Circuits and the Agency was not truthful in its FAD because it stated the fourth comparator was a specialist, but this was not true until May 2020. She also states that she has both Narcotics training and experience as well as Claimant Fraud training and experience, both of which were the OI focus for FY20. She states that despite being aware of her interest in diversifying away from Provider Fraud, management did not seek any options as their ultimate goal was retaliation. She states management did not discuss her preferences with her and no consideration was given to her desire to diversify. Complainant asserts that no legitimate non- discriminatory reasons was given as to the decision to reassign her and the reasons cited for justification are false and a cover up for intentional retaliation. She notes that management was aware of the difficulties she had as a result of the relocation because ASAC told another employee not to talk about the relocation because Complainant was having a hard time with it. As to telework, Complainant asserts that ASAC knew there would be an opening on his team because an agent left in April 2019. She provided deposition testimony from this agent stating he did inform ASAC he was leaving in April 2019. This agent also testified he was not subject to telework restrictions when working on ASAC’s team prior to April 2019. Complainant asserts that ASAC’s request to move Complainant to his team, the telework stipulation, and the ultimate decision to relocate her to Coppell, Texas were to retaliate against her for her prior EEO complaint and the reasons cited for these actions are false. The Agency contends on appeal that Complainant offers only personal beliefs and speculation to support her claims. The Agency asserts that the record contains no evidence of discrimination and the Agency has provided legitimate, non-discriminatory reasons for its actions. They note it is formal Agency policy, as well as standard Agency practice, to reassign employees based on the Agency’s needs, and Complainant was reassigned based on the Agency’s needs at that time. They argue she has presented no new evidence or asserted any new arguments to show that her reassignment was decided upon for any other purpose or that it was pretext for discriminatory animus. The Agency asserts Complainant has failed to show any discriminatory intent behind the telework restriction because the policy was in place before Complainant joined the team and the entire Mail Theft Team is subject to this restriction. The Agency also notes that OIG’s formal, written telework policy states that “telework is a privilege, not a right, and is only available to employees as long as it is conducive to both the employee and the Agency’s needs.” Lastly, the Agency contends Complainant cannot show retaliation as she was reassigned for business purposes and the telework policy was in place months before Complainant joined the team. The Agency states that Complainant has offered no more than her subjective belief that she was the victim on unlawful discrimination and she cannot counter the Agency’s legitimate, nondiscriminatory reasons for its actions. 2021002347 7 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Complainant alleges that she was subjected to disparate treatment based on race, sex, age, and reprisal for prior EEO activity. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming, arguendo, that Complainant established a prima facie case of sex, age, and race discrimination and unlawful retaliation, the responsible Agency officials have articulated legitimate, nondiscriminatory reasons for its actions and Complainant has not shown that these reasons were pretext for discrimination. 2021002347 8 Claim 1 - Involuntary Reassignment The Agency articulated legitimate, nondiscriminatory actions for Complainant’s involuntary reassignment, Agency priorities for FY20 were narcotics and Claimant Fraud. This necessitated several reassignments in the SAFO region, including the downsizing of the Provider Fraud team in Bedford, Texas, where Complainant was assigned. Agency policy specifically states that employees may be reassigned at any time, with or without relocation, based on Agency needs. SAC solicited an opinion about reassignment from ASAC, who requested Complainant be assigned to his Mail Theft team in Coppell, Texas because Complainant was a highly experienced mail theft agent who had done well in the past with mail theft assignments under his supervision. He noted his team of five agents included three inexperienced agents who could benefit from Complainant’s expertise. Based on the change in Agency priorities and Complainant’s 15 years of federal law enforcement and mail theft experience, and with concurrence and feedback from his leadership team, SAC made the ultimate decision to reassign Complainant to the Mail Theft Team in Coppell, Texas. Complainant argues these reasons are pretext for discriminatory animus and her involuntary reassignment was in retaliation for her prior EEO complaints. However, the record is absolutely devoid of any evidence of discriminatory animus on the part of the Agency beyond Complainant’s speculative beliefs. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). ASAC and SAC both testified that Complainant’s sex, race, age, and prior EEO activity were not a factor in Complainant’s reassignment. DSAC testified he was not involved in the reassignment decision, but Complainant’s sex, race, age, and prior EEO activity were not a factor in any of his actions or involvement regarding Complainant’s allegations. Complainant states that the responsible management officials were aware of her desire to work in Provider Fraud and diversify outside of Mail Theft and they were aware of her prior EEO activity since they were participants in her prior EEO complaints. She also asserts there were other assignments she could have been given. The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See, e.g., Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1982) (noting that “the question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason [was discriminatory]”). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency's business decisions may not be second-guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). Complainant has not shown that the Agency was motivated by discriminatory animus or by her prior EEO activity. 2021002347 9 Claim 2 - Telework Restriction The Agency articulated legitimate, nondiscriminatory actions for limiting Complainant to one day of telework per week. ASAC has limited his entire Mail Theft Team, including Complainant, to one day of telework per week due to the reactive nature of the job. The record is clear that this was set as a team policy no later than May 28, 2019, several months before SAC solicited his opinion on reassignments and before any decision was made to reassign Complainant to ASAC’s team. ASAC testified he was encouraging his mail theft agents to limit telework to one day per week prior to this, although there were exceptions for situations that lent themselves to additional telework and those were assessed on a case by case basis. Additionally, the Agency telework policy states that telework is a privilege, not a right, it is available only so long as it is conducive to both the employee and the Agency’s needs, supervisors must consider operational needs in determining whether to approve telework, supervisors must ensure adequate office coverage at all times, supervisors may cancel or change an approved telework plan at their discretion, and the nature of some work assignments may limit employees ability to work outside the assigned duty station. Complainant argues this is pretextual because this was not ASAC’s telework policy when she previously worked for him, this is the only SAFO team with this policy, and ASAC has allowed others to telework more than one day per week. However, she has again not provided evidence beyond her speculation to support this. The record does reflect that there were some instances of agents working more than one day of telework per week. However, these were non-recurrent situations. The record reflects that ASAC told Complainant to discuss with him if there were any special circumstances or projects that would lend themselves to additional telework and approvals would be on a case by case basis. Additionally, in at least two instances of employees working more than one day a week of telework, the additional telework requests were not actually approved by ASAC but by another manager in his absence. Complainant asserted in her appeal that ASAC was aware in April 2019 that he would be losing an agent, insinuating that he could have enacted this policy in May 2019. She did provide sworn witness testimony that an agent informed ASAC he was leaving in April 2019. However, it remains quite an inference to assert that the possibility of Complainant later transferring to his team due to this opening was the reason for enacting a team policy restricting telework to one day a week in May 2019. Such an inference is not enough to meet Complainant’s ultimate burden of proof. Again, while Complainant may disagree with the policy, there is no evidence that there was any discriminatory animus or any connection to Complainant’s prior EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 2021002347 10 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. 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, 2021002347 11 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 April 25, 2022 Date