U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnoldo P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120123216 Hearing No. 510-2012-00151X Agency No. 1G336002111 DECISION On August 13, 2012, Complainant timely filed an appeal from the Agency's July 16, 2012, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency's final decision. ISSUES PRESENTED 1. Whether the AJ erred in canceling the hearing and remanding the complaint for a final Agency decision; 2. Whether the Agency, in its final decision, correctly determined there was no discrimination, no disclosure of confidential medical information, and no failure to accommodate Complainant's disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronic Technician at the Agency's Tampa Processing and Distribution Center (PDC) in Tampa, Florida. As an Electronic Technician, Complainant was responsible for diagnostic and preventative maintenance on a variety of mail-processing and building equipment. For part of the day, Complainant also worked on the Time and Attendance System (TACS) in an office setting. Complainant suffers from hearing loss and Meniere's disease, which affects his vestibular functioning. Complainant states that his hearing aid is useless when he is exposed to loud noises, such as the noise in the PDC. Furthermore, Complainant further states that, as a result of the loud noise, he has serious vertigo and hearing loss. Complainant's worker's compensation claim for the loss of hearing was approved on September 2, 2011. On September 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), religion (Church of Christ), color (white), disability (hearing loss/Meniere's Disease), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: 1. On or about June 16, 2011, his medical information was left unsecured; 2. He received a letter dated August 30, 2011, placing him in Absent without Leave (AWOL) status; and 3. On or about September 2, 2011, and on other unspecified occasions, his request for reasonable accommodation was refused, and subsequently he was considered AWOL. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ's Order. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its decision, the Agency found that Complainant, who has a hearing impairment, was a qualified individual with a disability. However, the Agency further found that Complainant was not denied an accommodation. On May 16, 2011, Complainant's physician informed the Agency that Complainant "would be better suited" if at least half of his work hours were spent in a low-noise area. (Report of Investigation (ROI) at p. 144). In its final decision, the Agency explained that no action was taken on Complainant's request because, after the facility took noise readings, no high levels of noise were detected. Accordingly, the Agency determined that Complainant was not denied an accommodation. As for the claim that the Agency improperly disclosed Complainant's medical documentation, the Agency found that the Supervisor, Maintenance Operations, now retired, received Complainant's medical documentation and improperly left the documentation on his desk. However, the Agency found that Complainant failed to prove that anyone saw his medical documentation and, therefore, no improper disclosure was proven to have occurred. Finally, Complainant also alleged discrimination when he was placed on AWOL for absences starting in September 2011. However, the Agency found that this error was corrected when Complainant was placed on IOD (injured on duty) status. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination on any bases as alleged. CONTENTIONS ON APPEAL On appeal, Complainant argues first that the AJ erred when she cancelled the hearing and remanded the complaint to the Agency, and second, that the Agency's final decision was erroneously decided. Complainant asserts that he did not respond to the AJ's Sanction Order because he was unaware of it because it went into his "junk mail" e-mail mailbox. He also claims that the AJ was biased against him when she engaged in ex parte communications with the Agency, ignored his communication, and generally abused her position. Complainant submits on appeal additional depositions that he took during discovery . Complainant also raises his claim of dissatisfaction with the EEO process when the Agency's Attorney and subsequently, the AJ, made erroneous allegations against himself and his then-representative. The Agency responds by supporting the AJ's decision to cancel the hearing as a sanction for Complainant's conduct. The Agency asserts that it was Complainant who left his medical documentation on the supervisor's desk, and that there was no improper disclosure. The Agency argues that Complainant's medical documentation regarding the noise-level did not put his supervisor on notice that he needed an accommodation. The Agency conceded that Complainant's supervisors lacked a clear understanding of their reasonable accommodation responsibilities, but also notes that Complainant failed to utilize the services of its District Reasonable Accommodation Committee (DRAC). The Agency nonetheless acknowledges that Complainant was not required to do so. Finally, the Agency asserts that Complainant was not discriminated against or subjected to retaliation when he was issued the AWOL charge. Rather, Complainant was issued the AWOL due to insufficient medical documentation for an unrelated condition, and the AWOL charge ultimately was removed. The Agency also argues that we should not consider Complainant's appeal because Complainant has continued to defy the AJ's Sanctions Order. It further argues that we should not consider any new evidence on appeal. The Agency did not address Complainant's claim that he was dissatisfied with the EEO process. ANALYSIS AND FINDINGS Sanctions As an initial matter, we will address the AJ's decision to cancel the hearing as a sanction for Complainant's conduct during the discovery process. The record reveals that on February 12, 2012, the AJ issued an Acknowledgement Order and discovery ensued. On March 21and April 12, 2012, Complainant's representative noticed video depositions of several management officials named in the instant complaint. Between May 5 and May 9, 2012, the video depositions of at least four management officials were uploaded onto the "YouTube" website using the username "us postalservice." On May 15, 2012, the Agency moved for sanctions asserting that Complainant had uploaded the videos and, in doing so, violated the EEO process's privacy principles and undermined the EEOC's goal of fostering a conciliatory process. On the same day, Complainant's representative responded to the motion, and noted, "Complainant neither admits nor denies allegations in Agency's Motion for Sanctions." (Complainant's Response and Opposition to Agency Motion for Sanctions). Further briefing between the parties continued. On May 24, 2012, the AJ issued a sanctions Order and found that Complainant was aware that the EEO process proceedings were confidential and that all information gathered during the investigation was restricted. The AJ further found that rather than using discovery for its intended purpose - obtaining relevant evidence - the uploading of video depositions was clearly meant to harass deponents, which intimated witnesses and had a chilling effect on the EEO process. In that regard, the AJ noted that Complainant failed to dispute the Agency's contention that Complainant discussed the depositions on the workroom floor and encouraged co-workers to view them on the internet. In light of Complainant's conduct, the AJ determined that the imposition of sanctions was appropriate. The AJ ordered Complainant to cease and desist from disseminating the depositions online; remove the videos from YouTube; and provide written confirmation that the videos had, in fact, been removed. The AJ advised that failure to provide written confirmation within the prescribed time frames could result in further sanctions. Complainant also was foreclosed from using the depositions in the adjudication of the complaint, and was precluded from engaging in any further discovery. Later that day, Complainant's representative withdrew from the case. One week later, the Agency advised the AJ that no written confirmation had been received and that the depositions were still on YouTube. On June 1, 2012, the AJ determined that Complainant failed to take action to: (1) remove the depositions from YouTube, (2) provide written confirmation that this had been done; or (3) object to the dismissal as a possible sanction for his conduct. In light of his failure to prosecute the complaint or follow the instructions of the AJ, the AJ deemed Complainant had waived his right to a hearing, and dismissed his hearing request.2 An EEOC AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the Complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transp., EEOC Appeal No. 01870232 (Mar. 4, 1988). The Commission finds that the AJ properly sanctioned Complainant by dismissing his complaint from the hearing process given that Complainant failed to abide by the AJ's Order to remove the videos from YouTube, and failed to provide written confirmation that this was done. Complainant's conduct showed a lack of respect for the EEO process, the discovery process, and the privacy rights of those management officials. We note for the record that the videos have not been removed from YouTube as of the date of this decision, which shows a further disregard for the EEO process and clear evidence that a lesser sanction would not have sufficed in this case. Furthermore, the Commission finds that Complainant's continuing and ongoing disregard for the EEO process requires us to disregard the depositions taken during discovery. The AJ properly remanded the matter to the Agency for issuance of a decision. Although Complainant asserts that he did not receive the AJ's Sanction Order, we note that Commission regulations provide that a Complainant is responsible at all times for proceeding with the complaint even if he or she has designated a representative. 29 C.F.R. § 1614.605(e). Complainant v. Dep't of Homeland Security, EEOC Appeal No. 0120132280 (Aug. 29, 2014) (complainant is still liable for compliance with timelines even if the fault is attributable to his representative); Kennedy v. U.S. Postal Serv., EEOC Request No. 05950157 (Aug. 10, 1995) (when complainant has voluntarily entrusted representation to an attorney, complainant may not avoid the consequence of choice by arguing the attorney did not perform competently). Furthermore, we note that the instant case was identified as a Hearings Electronic Case Processing System (HECAPS) case, and as such, the AJ's use of e-mail was permissible. (See HECAPS General Order at ¶ 8-1 "A party who files correspondence, pleadings and other documents with the AJ via email in accordance with the provisions of the Order is deemed to have given consent to accepting email service of documents from the opposing party.") Accordingly, we find that the AJ did not abuse her discretion when she dismissed Complainant's request for a hearing, as Complainant had consented to service via e-mail. Dissatisfaction with the EEO Process The record reveals Complainant filed two informal complaints expressing his dissatisfaction with the EEO process. Specifically, Complainant alleged that the Agency Representative, and then the AJ, falsely asserted that Complainant and his then-representative encouraged other co-workers to view the depositions online. Complainant now denies that he or his representative did this; however, at the time of the AJ's decision, Complainant had expressly not denied this allegation (Complainant neither admitted nor denied the allegation). Accordingly, the AJ properly included the claim in her decision and used it to support her finding that sanctions should be imposed. We find no abuse of discretion in this regard. Although he does not specifically raise his second claim on appeal, the record reveals that Complainant filed an informal complaint alleging that he was threatened by his Senior Manager when he was sent a letter ordering him to comply with the AJ's order to remove the videos. See EEOC Appeal No. 0120130437 (Oct. 25, 2012) (finding that dismissal was appropriate as allegation represented a spin-off complaint). After a review of the letter, we find insufficient evidence that the letter contained any threats. Rather, the letter represents an internal effort by management to direct Complainant to remove the videos and remind him that as an employee of the U.S Post Office, there were certain conduct rules he was required to follow. We find no evidence that Complainant was threatened in the letter. Liability 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. (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"). Absence without Official Leave After a careful review of the record, we find that the preponderance of the evidence in the record supports the Agency's decision with respect to Issue 2 only. The record reveals that on or about June 29, 2011, Complainant stopped working due to a back injury. Complainant provided medical documentation which contained dates of his absence only. He stated that he was placed in an AWOL status on September 26, 2011, and was subjected to an investigative interview due to insufficient medical documentation. The Supervisor, Maintenance Operations, asserted that Complainant was erroneously marked as AWOL, and his work status subsequently was corrected to Injured on Duty. We find Complainant failed to establish, more likely than not, that the Agency's reasons for its actions were a pretext for intentional discrimination on any bases. Reasonable Accommodation To establish an entitlement to a reasonable accommodation under the Rehabilitation Act, Complainant must first demonstrate that he is a "qualified individual with a disability" within the meaning of the Act. An individual with a disability is one who: 1) has a physical or mental impairment that substantially limits one or more of that person's major life activities; 2) has a record of such impairment; or 3) is regarded as having such an impairment. 29 C.F.R. § 1630.2(g). An Agency is required to make reasonable accommodation to the known physical and mental limitations of a qualified individual with a disability unless the Agency can show that accommodation would cause an undue hardship. See 29 C.F.R. §§ 1630.2(o) and (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). A "qualified" individual with a disability is an "individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m). A modification or adjustment is "reasonable" if it appears to be "feasible" or "plausible." Enforcement Guidance at 4. An accommodation also must be effective in meeting the needs of the individual. Id. at 4-5. The Agency does not dispute that Complainant is a qualified individual with a disability. The record reveals that, as early as March 2011, Complainant requested that he work part of the day in a low-noise environment so as to preserve his hearing and negate any vestibular effects of his Meniere's disease. The record is undisputed that, for several months, nothing was done in response to Complainant's request. The record is undisputed that management officials erroneously believed Complainant was required to present his request for accommodation only to the District Reasonable Accommodation Committee. (Agency Brief on Appeal at p. 14). Ultimately, in October 2011, the Manager, Maintenance Operations, submitted Complainant's information to the DRAC and his request was processed.3 The Agency failed to rebut Complainant's contention that it could provide a low-noise environment as a reasonable accommodation without undue hardship. Rather, the Agency unpersuasively argues that Complainant was not exposed to loud noise because its noise level readings were not considered unsafe by Occupational Safety and Health Administration (OSHA) standards. ROI at p. 259. However, the fact that the noise levels were considered "safe" does not negate the evidence that Complainant required a low noise environment. Accordingly, we find the Agency failed to provide Complainant with a reasonable accommodation of his hearing disability. Confidential Medical Information Complainant claimed that on June 14, 2011, he provided medical documentation to the Supervisor of Maintenance Operations, in support of his continuing request for accommodation. In that medical documentation, Complainant's physician stated: "In my medical opinion [Complainant] should be in low noise office type environment 4 hrs. per day." ROI at p. 150. Complainant further claims that the Supervisor, Maintenance Operations, left the medical information on his desk for almost a week. There is no affidavit in the record from the Supervisor, Maintenance Operations, who retired from the Agency before the investigation. Under the Rehabilitation Act and ADA, information "regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record . . . ." 29 C.F.R. § 1630.14(c)(1) (emphasis added); see also 42 U.S.C. § 12112(d)(3)(B), (4)(C). By its very terms, this requirement applies to medical information obtained from "any employee" and is not limited to individuals with disabilities. See Hampton v. U.S. Postal Serv., EEOC Appeal No. 01A00132 (Apr. 13, 2000). Further, the requirement applies to all medical information, including information that an individual voluntarily discloses. Enforcement Guidance on Employee Inquiries and Examinations; see also EEOC Enforcement Guidance; Preemployment Disability-Related Questions and Medical Examinations, EEOC Notice 915.2002 at 21-22 (Oct. 10, 1995). Documentation concerning an individual's diagnosis or symptoms is confidential medical information. Id. at n. 26. Employers may share confidential medical information only in limited circumstances: supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations, first aid and safety personnel may be told if the disability might require emergency treatment, and government officials investigating compliance with the ADA and the Rehabilitation Act must be given relevant information on request. 29 C.F.R. § 1630.14(c)(1); see also 29 C.F.R. p. 1630 app. §§ 1630.14(b), 1630.16(f) (employers may use information for workers' compensation and insurance purposes). The evidence of record establishes that the Agency did not maintain Complainant's confidential medical information in a separate medical file, as it is required to do. Instead, the Supervisor left Complainant's medical information on his desk for approximately one week. Contrary to the Agency's assertion, Complainant was not required to prove that the Agency disclosed his confidential medical information to an unauthorized person. The plain language of the statute and regulation expressly states that medical information must be "collected and maintained on separate forms and in separate medical files." 42 U.S.C. § 12112(d)(3)(B), 12112(d)(4)(C); 29 C.F.R. § 1630.14(c)(1). The Agency's failure to maintain Complainant's medical information in separate medical files constitutes a violation of the Rehabilitation Act, even in the absence of an unauthorized disclosure CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the Agency violated the Rehabilitation Act when it failed to provide Complainant with a reasonable accommodation of his disability and failed to maintain his confidential medical information within a separate medical file. We find that Complainant failed to prove that, more likely than not, that the Agency placed him on AWOL because of any prohibited basis. Accordingly, we REVERSE the Agency's decision with respect to Issues 1 and 3, and AFFIRM the Agency's decision with respect to Issue 2. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER of the Commission, below. ORDER 1. To the extent that it has not already done so, the Agency is directed to immediately provide Complainant with a reasonable accommodation for his disability. The Agency shall engage in the interactive process with Complainant and provide him with a reasonable accommodation so that he can perform the essential functions of his job. 2. The Agency shall immediately take steps to ensure that the confidential medical documentation of all employees is kept in separate, secure medical files. 3. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.108(f). 4. Within one hundred and twenty (120) days from the date on which this decision becomes final, the Agency shall provide EEO training for the officials in Complainant's chain of command. Such training shall focus on rights and obligations under the Rehabilitation Act, including reasonable accommodation and confidentiality of medical records. The Commission notes that such training is not considered disciplinary in nature. 5. The Agency shall consider taking disciplinary action against the Agency officials found to have discriminated against Complainant. The Agency shall report its decision. 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 officials have left the Agency, the Agency shall provide the date(s) of separation. 6. The Agency shall post a notice in accordance with the paragraph below entitled, "Posting Order." 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 back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. 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. POSTING ORDER (G0914) The Agency is ordered to post at its Tampa, Florida Processing and Distribution Center 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)), he 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 1-8-16 __________________ 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 Complainant filed a Motion to Vacate Dismissal which was denied. 3 Complainant's request was pending at the time of the investigation. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2012-3216 2 0120123216