Complainant v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120132393 Agency No. BOP-2012-0855 DECISION Complainant filed an appeal from the Agency's April 26, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final decision. ISSUES PRESENTED The issues presented are whether Complainant was subjected to reprisal and sexual harassment, and if so, whether the Agency is liable for the harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-9 Correctional Counselor at the Agency's Metropolitan Detention Center (MDC) in Guaynabo, Puerto Rico. Complainant held this position for four and one-half years before retiring from the Agency on October 20, 2012.1 On September 18, 2012, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the basis of sex (female) and in reprisal for prior protected EEO activity, when on May 30, 2012, a male Lieutenant (C1) invaded her personal space, breathed heavily on her neck area, and made sexual noises.2 In an investigative statement, Complainant stated that she has had problems with C1 in the past and made sexual harassment complaints against him. Complainant stated that she previously reported an incident to her supervisor wherein C1 pressed his private body parts against her. Complainant stated that she did not think C1 was disciplined because of this incident. Complainant also stated that C1 previously would wait for her when she worked in the female unit and would engage in conversation with her while touching his private parts. She stated that she told C1 to stop his behavior, but he continued. Complainant stated that on one occasion, C1 was in her office with the lights off, and when she entered the office, she noticed he was touching his private parts while looking at her and telling her that he thought she would like it. Complainant further stated that C1 then grabbed her when she tried to leave. She stated that management was aware of her concerns of sexual harassment because she reported them. Complainant stated that around 1:00 p.m. on May 30, 2012, she was waiting for the staff elevator while C1 waited for the inmate elevator. Complainant further stated that after arriving at the fourth level and waiting for the Control Center to open the locked door, C1 approached her to open the door, although he was not allowed to be in close proximity to her. Complainant stated that C1 then started making sounds such as "ooooh" as if he were having sex and began blowing air onto her neck. She stated that she could feel C1's breath on her neck. Complainant further stated that she then told C1 to stop his behavior as she became nervous, scared, and uncomfortable. Complainant stated that she immediately reported the incident to the Warden, and the Warden told her to go to her office and document the incident in a memorandum. Complainant also stated that she also told the Correctional Systems Officer and union president about the incident. Complainant further stated that the incident occurred in a restricted area between two locked doors and was videotaped, but the Special Investigative Agent (SIA) told her that she could not see the video, although she asked to do so. Complainant also stated that the SIA did not allow her to make a statement about the incident. Complainant stated that the Agency issued her a "cease and desist" letter that ordered her to stay away from C1. Complainant stated that she encountered C1 on the stairs in the days following the harassing incident, and she wrote a memo to the Associate Warden requesting a shift change so she could avoid contact with C1. She stated that the Warden told the Associate Warden that he would not grant Complainant's request for a shift change, and she felt her only recourse was to come in late to avoid any contact with C1. Complainant stated that she was charged Absent without Leave (AWOL) after she depleted her leave balance. C1 (male) stated that he is a GS-9 Lieutenant. He stated that on May 30, 2012, he saw Complainant and tried to avoid her while she entered the elevator. C2 further stated that he took the other elevator to the fourth floor, where Complainant exited the elevator and entered the Sally Port, which is a controlled, secure passage area. He stated that he "was a gentleman" and opened the Sally Port door for Complainant so she could access the corridor. C1 stated that he did not invade Complainant's personal space, breathe on her neck, or make sexual noises. C1 stated that there was no verbal or physical interaction between him and Complainant when he opened the door for her. C1 stated that Complainant made accusations against him because he wrote her up for being late for duty several years ago. He stated that management issued him a cease and desist letter, and he avoided contact with Complainant. C1 retired from the Agency in November 2012. The Warden (male) stated that he learned about Complainant's EEO activity on April 8, 2012, from the EEO Specialist. He stated that Complainant alleged sexual harassment to him on May 30, 2012, and he instructed her to write a detailed report of the incident in a memorandum. The Warden further stated that he referred the matter to the SIA for investigation on June 1, 2012, and issued C1 and Complainant cease and desist letters on June 6, 2012. He stated that the letter ordered C1 and Complainant to cease contact with each other, and he did not recall Complainant asking for a shift change. The Correctional Systems Officer (CSO) (male) stated that he was a former union president. CSO stated that Complainant reported the incident to him a few days after it occurred and said she was dissatisfied with the Warden's response. CSO further stated that Complainant told him that she was waiting to take the elevator to the fourth floor while C1 waited to take another elevator, and after reaching the fourth floor and waiting for Control Center to open the electronic door, C1 stepped out of another elevator and came over to unlock the door. CSO stated that as C1 came to turn the key, he breathed on her neck and made sexual gestures toward her. CSO further stated that he immediately discussed the matter with the Warden. CSO stated that he believed that Complainant's sex and C1's position of authority were factors in the incident. CSO also stated that there have been four arbitration decisions against C1, which demonstrate that C1 has a history of sexually harassing women. He stated that he believed Complainant previously accused C1 of sexual harassment about a year before this investigation, and an employee reported sexual harassment against him when she worked with him from 2007 until 2012. CSO stated that C1 was not in Complainant's chain of command. The Associate Warden (male) stated that he was on annual leave during the relevant time period, but he knew that Complainant previously reported similar allegations of sexual harassment by C1 to management, which resulted in an agreement that they would not work together. The Associate Warden also stated that a teacher also accused S1 of sexual harassment. The Acting Unit Manager (Unit Manager) (female) stated that Complainant reported the May 30, 2012, incident to her. The record also contains a copy of two letters dated June 6, 2012, from the Warden. The letters are nearly identical in content, except one is addressed to Complainant, and the other is addressed to C1. The letters order Complainant and C1 to avoid any contact with each other while in the workplace, or talk about each other in a disparaging or disrespectful manner. The letters stated that the documents do not constitute discipline or any assumption of wrongdoing. Final Agency Decision 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). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to harassment as alleged. Specifically, the Agency concluded that although the record was clear that C1 opened a door for Complainant on May 30, 2011, there was no corroboration that he invaded her personal space, blew on her neck, or made sexual noises. The Agency further stated that, according to IA evidence, C1 maintained a two-foot distance from Complainant during the incident, extended his arm, and unlocked the door for her. The Agency concluded that there was no indication that C1 closed the space between him and Complainant, turned his head towards her, or made a facial expression consistent with blowing. Additionally, the Agency concluded that the alleged actions were not severe or pervasive enough to constitute a hostile work environment. Finally, the Agency decision found that it did not constructively discharge Complainant because her retirement was attributed to her disability. Complainant did not present any arguments on appeal, and the Agency requests that we affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Sexual Harassment/ Hostile Work Environment It is well-settled that sexual harassment in the workplace constitutes an actionable form of sex discrimination under Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a prima facie case of sexual harassment, the complainant must prove, by a preponderance of the evidence, the existence of five elements: (1) that she is a member of a statutorily protected class; (2) that she was subjected to unwelcome conduct related to his sex; (3) that the harassment complained of was based on her sex; (4) that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Hanson v. City of Dundee, 682 F.2d 987, 903 (11th Cir. 1982). Credibility of the Witnesses In its final decision, the Agency maintains that the record did not "originally contain" the results of SIA's investigation of the incident, but that the Agency considered the information from that investigation in the preparation of its decision. The Agency further contends that SIA reported that he reviewed the videotape of the incident and observed C1 standing two feet from Complainant and opening the door before Complainant walked through it. The Agency maintains that SIA further reported that there was no indication on the videotape that Complainant was upset with C1's conduct, although SIA did not indicate if the videotape had audio. Therefore, the Agency concluded that there was no evidence that Complainant was subjected to a hostile work environment because the video did not corroborate Complainant's assertion that C1 engaged in the alleged conduct. However, the record does not contain a copy of the videotape, nor are there any screencaps from the videotape. Further, there is no statement in the record regarding SIA's observations from the videotape. The Agency claims in its final decision that it consulted with SIA, but the Agency has the burden to provide evidence and/or proof to support its final decisions. See Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). The Agency cannot just assert that evidence exists somewhere in the universe; it must place such evidence the record. If the videotape exists, the Agency should have included it in the record. Likewise, the Agency should have provided a sworn statement from SIA in the record about his observations from the videotape. Moreover, we find it significant that Complainant asked to see the videotape but has been denied the opportunity to review it. Further, none of the witnesses who provided investigatory statements testified that they had actually reviewed the video, or relayed their direct observations of the video. Consequently, we determine that the Agency's assertions in its final decision about the purported content of the videotape and SIA's observations are not evidence in this case; therefore, we decline to consider them herein. In this case, Complainant stated that C1 sexually harassed her when he made sexual noises and breathed on her next while in close proximity to her. However, C1 maintained that he did not breathe on Complainant's neck or make sexual noises toward her, and only opened the Sally Port door for Complainant so she could access the corridor. Upon review, we note that CSO reported that C1 has a history of similar harassing behavior toward women. The Associate Warden reported that Complainant previously made similar allegations against C1. Management, coworkers, and documentation affirm that Complainant immediately reported that C1 sexually harassed her and recounted the incident in detail. We note that Complainant's account of C1's conduct is remarkably consistent and detailed throughout the record. Essentially, Complainant has told the same story from her initial memorandum on June 1, 2012, to her account during EEO counseling and in the formal complaint, to her investigative statement. Likewise, witnesses stated that Complainant told them that she had been sexually harassed in a manner consistent with her aforementioned accounts of events. Taking these considerations into account, we conclude that Complainant's allegations are supported by the weight of the evidence. Prima Facie Sexual Harassment Turning to the first prong of Complainant's prima facie harassment case, Complainant, a female, is a member of a statutorily protected class. The record reflects that Complainant was subjected to conduct of a sexual nature by C1. Additionally, Complainant and CSO stated that C1 engaged in similar conduct with other female employees. Thus, we conclude that Complainant was subjected to conduct based upon her sex. Additionally, the record supports the conclusion that Complainant objected to C1's conduct, as reflected by the fact that she immediately reported it to management officials. Thus, we conclude that C1's conduct was unwelcome. Turning to the fourth prong of the prima facie case, we note that whether or not an objectively hostile or abusive work environment exists is based on whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. The incidents must have been "sufficiently severe and pervasive to alter the conditions of complainant's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). To ascertain this, we look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; whether it was hostile or patently offensive; and whether the alleged harasser was a co-worker or a supervisor. See Harris, 510 U.S. 17, 23 (1993); see also Policy Guidance on Current Issues of Sexual Harassment, EEOC Notice No. N-915-050 (Mar. 19, 1990). In this case, Complainant was subjected to C1 breathing heavily on her neck while he made sexual noises in close proximity to her. Essentially, this conduct involved offensive bodily contact of a sexual nature. Additionally, the conduct occurred when Complainant was confined with C1 in a locked, isolated area, which heightened the physically threatening nature of the behavior. Moreover, this conduct cannot be viewed in isolation, but must be viewed in the context of Complainant's allegations that C1 previously rubbed his private parts against her and laid in wait in her office so that he could engage in similar unwelcome sexual conduct. A reasonable person would conclude that the effect of C1's conduct toward Complainant created a hostile work environment. Thus, we find that Complainant was subjected to conduct that was sufficiently severe to create a hostile working environment. Reprisal and Liability Because Complainant established that she was subjected to sexual harassment, our next inquiry is whether the Agency is liable for C1's actions. Complainant stated that C1 did not have supervisory authority over her on May 30, 2012. In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. See Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18, 1999). An agency can raise an affirmative defense when it shows that it took immediate and appropriate corrective action. Id. What is appropriate remedial action will necessarily depend on the particular facts of the case, such as the severity and persistence of the harassment and the effectiveness of any initial remedial steps. Taylor v. Dep't Of Air Force, EEOC Request No. 05920194 (July 8, 1992). The Associate Warden stated that Complainant previously reported similar allegations of sexual harassment by C1 to management, which resulted in an agreement that they would not work together. The purported agreement is not in the record. CSO also stated that, in the past, there were four decisions against C1 regarding similar sexually harassing behavior toward women. Complainant also stated that she reported previous incidents of sexual harassment by C1 to management. Therefore, we find that the Agency knew about C1's propensity to sexually harass employees, including Complainant. Nevertheless, there is no evidence in the record that the Agency took appropriate action when Complainant reported the previous incidents. Even if the Associate Warden's claim that there was an agreement that Complainant and C1 would not work together is correct, the purported agreement was ineffective because the harassment recurred after the previous harassment was reported. The Agency's previous response was not prompt, effective, nor appropriate. See Lemons v. Dep't of Justice (BOP), EEOC Appeal No. 0120081287 (Apr. 23, 2009)(Commission held that taking only some remedial action does not absolve the agency of liability where that action is ineffective). Additionally, Complainant immediately reported the incident at issue in this case to management. Reporting harassment is protected EEO activity. See Bailin v. Social Security Administration, EEOC Appeal No. 0120080181 (July 14, 2011): Barrios v. Dep't of Homeland Security, EEOC Appeal No. 0120061198 (Dec. 10, 2007). In response, the Agency issued Complainant and C1 a cease and desist letter. No other actions were taken against C1 because of this incident. We find that issuing Complainant a cease and desist letter was inappropriate and gives the appearance that Complainant, a victim of harassment, was just as culpable as C1, the harasser. Essentially, the order rebukes Complainant for reporting the harassment. Employees are protected from any discrimination that is reasonably likely to deter protected EEO activity. See EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15. We find that the cease and desist order constitutes reprisal for EEO activity because it is likely to deter employees from engaging in EEO activity. Further, the cease and desist letter issued to C1 clearly stated that C1 was not being disciplined. It also stated that the Agency had not made conclusions about wrongdoing. As such, the Agency disavowed holding C1 responsible for his harassment. The Agency also denied Complainant's pleas to be reassigned to another shift so that she could avoid contact with C1. The Agency's failure to discipline or reassign C1 left Complainant working in fear in the same work environment as her harasser. In fact, Complainant encountered C1 on the stairs in the days following the harassing incident. The Agency clearly failed to take immediate and appropriate corrective action in this case. Accordingly, because the Agency has not satisfied the affirmative defense, we find that it is liable for the harassment of Complainant. Finally, we note that the Commission has previously held that restoration of leave taken for purposes of avoiding or recovering from discriminatory harassment is a valid component of equitable relief. See Whiting v. ACTION, EEOC Request No. 05900093 (June 27, 1990). Complainant contends that she exhausted her leave balance because the Agency failed to properly respond to the reported harassment in this case. We are persuaded that Complainant took leave because of C1's harassing conduct. Complainant retired from the Agency in October 2012. Therefore, we will order the Agency to make Complainant whole by tendering the monetary value of this leave. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission finds that the Agency subjected Complainant to sexual harassment, and reprisal in the form of issuing an unwarranted cease and desist letter. The Commission REVERSES the Agency's final decision and REMANDS this matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to undertake the following remedial relief: 1. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall expunge the cease and desist letter issued to Complainant on June 6, 2011, from all its records and files. 2. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall rescind/expunge any AWOL charges Complainant incurred from May 30, 2012, until the date of her retirement. 3. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between the sexual harassment and reprisal and her pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 4. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall undertake a supplemental investigation to determine Complainant's entitlement to a lump sum payment for the value of the leave she took because of the harassment at issue in this case. The leave at issue in this case occurred from May 30, 2012, until Complainant's retirement in approximately October 2012. Complainant will cooperate with the Agency's efforts to compute the lump sum amount she is owed and will provide all relevant information requested by the Agency. The Agency shall issue a final agency decision addressing the issue of Complainant's entitlement to a lump sum payment for leave taken, as well as her entitlement to compensatory damages. As stated above, the final decision shall contain appeal rights to the Commission. 5. Within one hundred and twenty (120) calendar days from the date this decision becomes final, the Agency shall provide at least eight hours of in-person EEO training to all supervisors and management officials at its facility in Guaynabo, Puerto Rico regarding their responsibilities with respect to Title VII. The training shall be focused on preventing and responding to harassment (including sexual harassment) and EEO anti-retaliation provisions. 6. The Agency shall consider taking appropriate disciplinary action against the responsible management official, specifically the Warden; we note that C1 is no longer in the Agency's employ. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the Agency shall furnish documentation of their departure date(s). 7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of compensatory damages and lump sum (leave value) payment, including evidence that the corrective actions have been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its facility at Guaynabo, Puerto Rico copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. 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 (M0610) 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 9-18 (November 9, 1999). 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations June 25, 2015 Date 1 Complainant had worked with the Agency for 19 years. 2 Although the Agency also addressed the issue of whether Complainant was constructively discharged in its final decision, this claim was not an accepted issue. Thus, we decline to review this issue on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132393 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132393