Taryn S., Complainant,1 v. Lawrence G. Romo, Director, Selective Service System, Agency. Appeal No. 0120113421 Hearing No. 470-2010-00015X Agency No. SSS017 DECISION On June 20, 2011, Complainant filed an appeal from the Agency's final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and the decision of the Administrative Judge, and remands the complaint for a hearing. ISSUES PRESENTED The issues presented on appeal are (1) whether there are genuine issues of material fact with regard to the Agency's use of Complainant's arrest record in its decision to rescind Complainant's job offer, such that a decision without a hearing was not appropriate; and (2) whether the record is sufficiently developed for a fact-finder to make a determination on the merits of the complaint? BACKGROUND In July 2008, Complainant applied for an entry-level Contact Representative position in the Agency's Chicago, Illinois office, under a disabled Veteran's preference status. Complainant was interviewed for the position by the selecting official in September 2008. After the interview, Complainant called the selecting official to inform her of a misdemeanor battery conviction that Complainant had not previously disclosed. On October 16, 2008, Complainant was tentatively offered the position with a proposed start date of November 9, 2008. After the tentative offer was made, the selecting officials were provided with a copy of Complainant's arrest record which disclosed that, through a plea of no contest, Complainant was convicted of misdemeanor battery. After reviewing the arrest record, the selecting officials and the Agency's Human Resources Officer decided that they no longer wanted to hire Complainant. Complainant was notified on November 5, 2008, that the Agency was withdrawing the tentative offer of employment because the Agency believed that the conviction was unbecoming of a former police officer and potential federal employee. The Agency subsequently hired another applicant (White), who also had a criminal record of a conviction of misdemeanor battery. On April 4, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to disparate treatment and disparate impact on the basis of race (African-American) when the Agency failed to hire her because of her arrest/conviction record. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency's November 19, 2009, motion for a decision without a hearing, and issued a decision without a hearing on May 23, 2011. The Agency subsequently issued a final order on June 20, 2011, implementing the AJ's finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. ANALYSIS AND FINDINGS Decision without a Hearing In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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"). We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). After a careful review of the record we find that the AJ's issuance of a decision without a hearing was not appropriate, as the record is not sufficiently developed and there are genuine issues of material fact in dispute. Disparate Treatment Complainant alleged that she was subjected to disparate treatment when she was not selected for the Contact Representative position. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, she 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). To establish a prima facie case in a non-selection case, Complainant a complainant must show that: (1) she was a member of the protected class; (2) she applied for and was qualified for the position; (3) she was not selected for the position despite her qualifications; and (4) a similarly situated employee outside of her protected class was selected for the position. McDonnell Douglas, 411 U.S. at 802-803. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Here, Complainant established a prima facie case of race discrimination. Complainant is African-American, she was qualified for the position, and she was not selected for the position despite her qualifications. Additionally, the Selectee was a similarly-situated employee because she also had a misdemeanor battery conviction, she was outside of Complainant's protected class because she is White, and she was selected for the position. The Agency articulated a reason for its actions. Specifically, the Agency stated that Complainant's offer was rescinded when the Agency learned of the contents of the police report and the circumstances surrounding Complainant's arrest, which allegedly was the result of a domestic dispute. The selecting officials and the Agency's Human Resources Officer felt that Complainant, who was a former police officer, should have had better self-control than to threaten someone and lose her temper as described in the police report. Additionally, the selecting officials noted that, according to the arrest records, Complainant allegedly lied to the police during the investigation. One of the selecting officials stated, "I don't want people in my office that might threaten someone or lose their temper." In the final step in the analysis, the inquiry moves to a consideration of whether Complainant carried her burden to demonstrate pretext. In order to prevail on her claim of discrimination, Complainant must show, by a preponderance of the evidence, that the Agency's articulated reason was a pretext for discrimination. Complainant can do this by showing that the Agency's explanation is unworthy of credence and that its actions were influenced by legally impermissible criteria, i.e., animus toward her because of her race. Here, the record shows that the Agency hired a White employee who was convicted of misdemeanor battery, the same offense of which Complainant was convicted. Commission Guidance states that an employer may be liable under Title VII where evidence shows that an employer rejected an African-American applicant based on her criminal record but hired a similarly-situated White applicant with a comparable criminal record. See EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, No. 915.002, Section IV (Apr. 25, 2012) (Arrest and Conviction Guidance). Here, the record reveals that Complainant and the selectee had comparable convictions. The Agency based its reasons for rescinding Complainant's job offer on her arrest record and corresponding police report. As noted in the Commission's Arrest and Conviction Guidance, the fact that someone was subjected to an arrest does not establish that criminal conduct has occurred; arrests are not proof of criminal conduct, as many arrests do not result in criminal charges or the charges are dismissed. Arrest and Conviction Guidance, Sec. V (B)(2). We note that the contents of arrest records alone may not be sufficient to support an employment action, such as a non-selection, because the contents of the arrest record may be unreliable, as they have not been verified for their truthfulness and accuracy by a court. In cases such as the one before us now, where a Complainant disputes the contents of a police report that was relied upon in a selection decision, there may exist genuine issues of material fact that require a hearing before an EEOC AJ. In this case, the AJ considered only the contents of Complainant's arrest report. We find that the AJ erred when she considered the contents of Complainant's arrest report instead of Complainant's court-issued conviction report. We further find that the AJ erred in rejecting Complainant's argument that the dismissed charges should not be considered. We find that dismissed charges that did not result in a conviction should not, of necessity, be dispositive in an employment action, such as determining whether an individual is qualified to perform the functions of a position, because criminal charges that have not resulted in a conviction are not reliable evidence of wrongdoing. Additionally, we find that the record before us on appeal only contains a short, two-sentence summary of the Selectee's arrest and conviction that was provided by the Agency. Report of Investigation (ROI) at Exhibit F-19. The record before us on appeal does not contain any verifiable documentation regarding the Selectee's conviction, such as a conviction report from the court that explains the charges, what the Selectee was convicted of, and what sentence was imposed on the Selectee. Additionally, the record before us on appeal does not contain any verifiable documentation from a court regarding Complainant's conviction, such as her conviction report, official documentation regarding the charges that were dismissed by the court, and official court documentation regarding the sentence imposed on Complainant. Instead, the record contains only information about Complainant's arrest received from the Madison Police Department. As a result, the record is not sufficiently developed for a fact-finder to compare the Complainant's and the Selectee's convictions. Additionally, it is not clear how the Agency received Complainant's arrest report from the Madison Police Department, and whether it is the Agency's policy or practice to obtain the arrest record and police reports of all applicants for employment. Similarly, it is not clear from the record if there were inconsistencies in the hiring process. For example, it is not clear from the record if the Agency also obtained the police report for the Selectee, or whether it based the information for the Selectee's conviction solely on the Selectee's explanation of the events. It is also not clear from the record if the Agency gave Complainant the opportunity to explain her version of the events contained in the arrest report and, if it did, the weight that the Agency gave to Complainant's explanation. As a result, there are genuine issues of material fact in dispute. Further, we find that the Agency did not articulate how Complainant's conviction related to the duties of the Contact Representative position, and how Complainant's conviction rendered Complainant unqualified for the duties of the position. The record reveals that a selecting official stated, "I don't want people in my office that might threaten someone or lose their temper." It appears from the record that the selecting official inferred that, because of this one act, contained in an unverifiable police report, Complainant must have a bad temper and threaten people. We note that there is no evidence in the record that correlates Complainant's conviction to her qualifications to perform the specific duties of the Contact Representative position. As a result, this is a genuine issue of material fact in dispute. Accordingly, additional discovery and a hearing are necessary to complete the record in this case in order to resolve genuine issues of material fact. Disparate Impact Complainant alleged that the Agency is liable for disparate impact discrimination because the Agency had a neutral policy or practice for background checks that had a disparate impact on African-Americans. An Agency is liable for Title VII disparate impact where the evidence shows that the Agency's criminal record screening policy or practice disproportionately screens out a Title VII protected group and the Agency does not demonstrate that the policy or practice is job-related for the positions in question and consistent with business necessity. See Arrest and Conviction Guidance, at Sec. V. To establish a claim of disparate impact, Complainant must show that an Agency practice or policy, while neutral on its face, disproportionately impacted members of the protected class. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (a complainant must present "statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion"). Specifically, Complainant must: (1) identify the specific practice or practices challenged; (2) show statistical disparities; and (3) show that the disparity is linked to the challenged practice or policy. Id.; Obas v. Dep't of Justice, EEOC Appeal No. 01A04389 (May 16, 2002). The burden is on the Complainant to show that "the facially neutral standard in question affects those individuals [within the protected group] in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); see also Gaines v. Dep't of the Navy, EEOC Petition No. 03990119 (Aug. 31, 2000). After a complainant establishes disparate impact, the burden shifts to the respondent agency to demonstrate that the employment action, such as the use of information obtained in a criminal background check, is job-related for the position and consistent with business necessity. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). To establish that a criminal conduct exclusion that has a disparate impact is job-related and consistent with business necessity under Title VII, the employer - here the Agency - needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. Arrest and Conviction Guidance at Sec. V (B)(4). The Agency may meet the "job-related and consistent with business necessity standard" if the Agency validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards.2 Arrest and Conviction Guidance at Sec. V (B)(4); 29 C.F.R. § 1607. If the Agency does not use the Uniform Guidelines for validation, the Agency must analyze three factors that are relevant to assessing whether an exclusion is job-related for the position in question and consistent with job necessity: 1) the nature and gravity of the offense or conduct, 2) the time that has passed since the offense or conduct and/or completion of the sentence, and 3) the nature of the job held or sought. Green v. Missouri Pacific Railroad, 523 F.2d 1290, 1293 (8th Cir, 1975); Arrest and Conviction Guidance at Section V (B). If all three factors are met, the Agency should then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. Arrest and Conviction Guidance at Section V (B)(4). We find that the record is not sufficiently developed for us to determine whether there was a disparate impact on African-Americans by the Agency's background check policies or practices. The record must be further developed through additional discovery and a hearing to determine exactly what the Agency's policies and practices are for background checks regarding criminal arrests and convictions, and the impact those policies and practices have on African-American employees and applicants for employment. The following information, along with any other relevant information, should be gathered to determine if the Agency's background check policies and practices disproportionately impacted African Americans. Does the Agency have a formal, written background check policy? Does the Agency conduct a background check for all Agency employees? Does the Agency conduct a background check for all employees selected for the Contact Representative position? Do all background checks include criminal background checks? If so, do all criminal background checks include checks for both arrests and convictions? At what point in the hiring process are employees subjected to a criminal background check? How does the Agency obtain arrest and/or conviction information? How are the criminal records evaluated by the Agency? What criteria does the Agency use to determine whether an arrest and/or conviction results in a person being not qualified for a position? To what extent is information from arrest records and criminal charges that do not result in convictions taken into consideration in employment actions? Does the Agency always allow an employee or applicant the opportunity to explain information found in a criminal record? Further, more information is needed regarding how many employees or applicants Agency-wide have a criminal history, and the crimes of which they were convicted. Of those employees or applicants who have a criminal history, which employees or applicants (and their corresponding race) have either been selected for a position, or not selected for a position because of their criminal history? Further, which of those employees or applicants (and their corresponding race) have retained their position, or have been terminated from their employment or had their job offers revoked because of the criminal history? The record indicates that there was at least one other Black employee who had been hired and subsequently terminated after it was revealed through a background check that he had arrests and convictions. ROI at 5, Exhibit F19. However, the information regarding this incident is very sparse in the record, and there is no indication of the outcome of background checks for other employees and/or applicants. The Agency must supply this information and other relevant information to Complainant, who in turn must present sufficient statistical evidence at the hearing, which may be in the form of expert testimony that establishes whether a statistical disparity exists that is linked to the challenged practice or policy. Therefore, we find that additional discovery and a hearing are necessary. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and the decision of the Administrative Judge, and REMAND the complaint for additional discovery and a hearing, in accordance with this decision and the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Indianapolis District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Prior to the hearing the AJ will Order limited discovery on the following items, and any other discovery the AJ deems relevant to the issues in this case: 1. If the Agency had verifiable documentation from a court regarding Complainant's conviction at the time of the issues that arose in this complaint, it will provide those documents, such as her conviction report, official documentation regarding the charges that were dismissed by the court, and official court documentation regarding the sentence imposed on Complainant. 2. If the Agency had verifiable documentation from a court regarding Selectee's conviction at the time of the issues that arose in this complaint, it will provide those documents, such as her conviction report, official documentation regarding the charges that were dismissed by the court, and official court documentation regarding the sentence imposed on the Selectee. 3. The Agency will explain how it obtained Complainant's police report/arrest record. 4. The Agency will explain if it also obtained the police report/arrest record for the Selectee at the time of events giving rise to this complaint, and the consideration it gave to the contents of the Selectee's police report when it selected her for the position. 5. The Agency will explain whether it routinely gives applicants or employees the chance to explain the contents of their criminal records, the weight that explanation is given when making employment decisions, and if it gave both Complainant and the Selectee the chance to explain the contents of their criminal records in the selection at issue in this case. 6. The Agency will explain how Complainant's conviction related to the duties of the Contact Representative position and how Complainant's conviction made Complainant not qualified for the duties of the position. The Agency will similarly explain why the Selectee was deemed qualified to perform the duties of the position. 7. The Agency will explain whether it has a formal, written background check policy, including its use of arrest/conviction records. If it does, it will provide the policy and the date the policy went into effect. 8. The Agency will explain whether it conducts a background check for all Agency employees. 9. The Agency will explain whether it conducts a background check for all employees selected for the Contact Representative position. 10. The Agency will explain whether all of the background checks it conducts include criminal background checks. If so, do all criminal background checks include checks for both arrests and convictions? 11. The Agency will explain the point in the hiring process where employees are subjected to a background check. 12. The Agency will explain how the Agency obtains arrest/conviction information. 13. The Agency will explain how the criminal records are evaluated by the Agency. 14. The Agency will explain the criteria the Agency uses to determine whether an arrest, or an arrest and conviction, results in a person being not qualified for a position. 15. The Agency will explain to what extent information from arrest records and criminal charges that do not result in convictions are taken into consideration in employment actions. 16. The Agency will provide relevant information regarding any training selecting officials are given on the use of criminal records in hiring decisions, and the dates the training was given relevant to this complaint. 17. The Agency will provide all relevant information for every employee or applicant Agency-wide known by the Agency to have a criminal history, including their race and the crimes for which they were arrested or convicted. 18. Of those employees or applicants known by the Agency to have a criminal history, the Agency will clearly identify those employees or applicants (and their corresponding race) that have been selected for a position even though they have a criminal history, or have not been selected for a position because of their criminal history. The Agency will clearly state the arrests or convictions that the Agency considered in its employment actions. 19. Of those employees or applicants known by the Agency to have a criminal history, the Agency will clearly identify those employees or applicants (and their corresponding race) that have retained their positions even though they have a criminal history, or have been terminated from their employment or had their job offers rescinded because of the criminal history. The Agency will clearly state the arrests or convictions that the Agency considered in its determination of whether it would take employment action. After the hearing, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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, Director Office of Federal Operations 11-3-2015 __________________ Date 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. 2 These uniform guidelines were created in response to the federal government's need for a uniform set of principles on the question of the use of tests and other selection procedures. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113421 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113421