U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Octavio C.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Geological Survey), Agency. Appeal No. 0120150460 Agency No. USGS130474 DECISION On November 19, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 16, 2014, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission MODIFIES the Agency's final decision. ISSUES PRESENTED Whether Complainant was discriminated against based on his sex (male), age (51) and reprisal (EEO activity) when, among other things, he was not selected for the position of Supervisory Hydrologist and received a Letter of Warning (LOW); and (2) whether certain comments by his supervisor violated the Commission regulations regarding retaliation. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Hydrologist, GS-1315-12 at the Agency's Missouri Water Science Center facility (MOWSC) in Rolla, Missouri. On November 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (51), reprisal for prior protected EEO activity and subjected him to a hostile work environment when: 1. On September 12, 2013, he was notified by the selecting official that he was not selected for the GS-13 Supervisory Hydrologist position; 2. On September 11, 2013, the selecting official did not try to discern between the best qualified candidates, misrepresented the position and asked him if he preferred a GS-13 non-supervisory or a GS-13 supervisory position; 3. On September 10, 2013, his first level Supervisor instructed him to pull his application prior to being interviewed for the Supervisor Hydrologist position in Rolla, Missouri; 4. on August 20, 2013, the selecting official told him that the supervisory position was the Selectee's position; 5. on August 20, 2013, his first level supervisor instructed him not to apply for the supervisory hydrologist position in Rolla, Missouri; 6. on an unspecified date in October 2010, he did not receive his promotion after being told that he had the director's approval for the promotion, pending a letter of reference; 7. on an unspecified date in October 2007 and October 2008, he was not allowed to rewrite his performance standards as another technical specialist was allowed to do; 8. On October 24, 2013, after he contacted the EEO Counselor, his first level supervisor made remarks to him about his EEO activity; and 9. On May 9, 2014, Complainant received a Letter of Warning (LOW) from his immediate supervisor subjecting him to a hostile work environment. At the time of these events, Complainant was a thirty (30) year employee in the United States Geological Survey (USGS). In August 2013, he applied for the position of Supervisory Hydrologist. At the time of his application, Complainant had been working as a Hydrologist, GS-1315-12. Another applicant who had applied for the same position, C-1 (White male, age 45) was chosen for the position. C-1 had been working as a Supervisory Hydrologist GS-1315-12. Complainant objected to the selection. He believed that he had credentials and experience for the position that were superior to those possessed by C-1. Complainant believed for several reasons that the process for the selection of the Supervisory Hydrologist was unfair. He noted that previously a woman had been selected for the position. Years later, after she retired, the position had remained vacant until this current selection decision. Complainant stated that he believed the previous occupant had been selected because she was a woman. The Selection Officer (SO) maintained that C-1 had a past performance that was superior to Complainant's. C-1 received a rating of "Superior" as a Supervisory Hydrologist. C-1 did a good job supervising staff and was seen as the reason that MOWSC was the leader in the USGS concerning data collection. C-1's evaluations for FY 2011, FY 2012, and FY 2013 indicated that he received "Superior" ratings. The record shows that C-1 had consistently performed at the level of "Superior." Complainant was in a non-supervisory position. His evaluations indicate that he received Superior" ratings for FY 2011 and FY 2012, and a "Fully Successful" rating for FY 2013. Complainant was recognized in the evaluation for superior performance in analyzing hydraulic data and for working closely with another office on preparing statistical data sets. The record also showed that Complainant had received some lower performance ratings in earlier years. With respect to Complainant's receipt of a LOW, the Agency maintains that Complainant failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team. With respect to claim 8, Complainant maintained that on October 24, 2013, his immediate supervisor, S-1, approached him about his prior EEO activity, after Complainant contacted an EEO Counselor about his non-selection. According to Complainant, S-1 asked him, "What is the pre-complaint email that I got all about, why now, if you have filed something, was this about this announcement?" Complainant further stated that S-1 made the following remarks: 1) you should not have done it and you "pulled the trigger" too fast; 2) your work has been outstanding and maybe in six months they could try to get you a GS-13 position; 3) you should not have filed; 4) this will only make everyone mad and no one will win, if this continues; 5) he would have picked C-1; and 6) a person's career means nothing to SO, and that "what matters is what you have done for him." Complainant attested that no one else was present when his supervisor made the remarks about him contacting an EEO Counselor. He was upset that S-1 "did not respect his request on this matter when he stated that they should not be discussing the matter." He avers that S-1 spoke to him several times about this matter. According to Complainant, prior to his interview for the position, S-1 suggested that he pull his application for the Supervisory Hydrologist position. S-1 told him that he should pursue a GS-13 non-supervisory position even though Complainant was competing for a GS-13, Supervisory Hydrologist position. Complainant contends that S-1's statements demonstrated: 1) a practice of discrimination; 2) an improper influence on an applicant to withdraw from competition for a position; 3) an improper exercise of influence to harm a particular employee; 4) an "intentional obstruction of an employee from competing for employment;" and 5) a violation of the merit system principles. According to Complainant, S-1 was relentless during their discussion and became irate when Complainant departed. Complainant stated that S-1 knew that if he withdrew before the interview, he had no means to contest the result, file a grievance, or file an EEO complaint. According to Complainant, S-1 stated that he should not try to take this position from C-1 and that he could still try to get a GS-13 non-supervisory promotion. Complainant replied, "that the best applicant based on merit should be picked." S-1 admitted to having a conversation with Complainant about his EEO activity. S-1, however, maintains that the statements attributed to him by Complainant were not accurate, were misquoted, or were "extracted from other conversations." S-1 stated that the conversation was initially inquisitive, and that there was an honest and heartfelt tone from both parties. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind, and he asked Complainant if there was anything he should be aware of regarding an EEO issue with one of their students." S-1 stated that Complainant indicated that it was not one of the students who had engaged in EEO activity. S-1 said that he knew Complainant was disappointed about the recent GS-13 supervisory selection and he asked if Complainant was involved in some manner. Complainant affirmed that it was him and S-1 claims that "they both agreed to limit discussion of the issue." According to S-1, although he agreed with limiting the conversation, he did ask Complainant, "why now?" Complainant, he stated, indicated that there was a short timeframe for contacting an EEO counselor. S-1 did not recall telling Complainant that "he should not have done it," but he did recall making the comment about "pulling a trigger." S-1 referred the investigator to a summary of his conversation with the EEO Counselor contained in the EEO Counselor's Report for the context of this comment.2 In the report, S-1 maintained that after Complainant indicated that he did not want to hurt anyone, but was doing it for his family, S-1 stated that he told Complainant that his initial thought had been that Complainant had "pulled the trigger to soon," but that he now understood why Complainant had to move forward as he did. S-1 did not recall telling Complainant that he should not have filed, nor did he recall saying, "this will only make everyone mad and no one will win, if this continues." S-1 recalled, however, acknowledging that the EEO process was probably not "the most enjoyable path for anyone involved." He further attested that he did not express anger toward Complainant. S-1 recalled telling Complainant that if rumors of changes in management occurred and he had a good evaluation in hand, the time would be ripe for him to have another conversation with senior management about a technical GS-13 position in their center. S-1 stated that he "empathized with Complainant," and maintained that he wished him the best throughout the process and that regardless of the outcome, he would follow through with his promise to discuss the potential GS-13 with management. S-1 pointed out that he was not certain whether his conversation with Complainant occurred prior to or after his conversation with the EEO Investigator, and it was not evident until October 30, 2013, that he was named as having contributed to the alleged discriminatory actions. He "averred" that he did not make any other statements. 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency acknowledged that claims 6 and 7 were not investigated because they had been dismissed as being untimely. The decision concluded that Complainant did not establish discrimination with respect to the remainder of his claims. CONTENTIONS ON APPEAL On appeal, Complainant raises no new or additional arguments of fact or law. Complainant contends that the ROI supports his contentions of discrimination based on age, sex, reprisal and a hostile work environment. Complainant contends that he was more experienced than the person selected for the GS-13 Supervisory Hydrologist position and that the Agency's non-selection of him ignored his long record of accomplishments as a Hydrologist. 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 Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS We note that the Commission has the discretion to review only those issues specifically raised in an appeal. Because complainant does not specifically contest the dismissal of claims 6 and 7 on the grounds of untimeliness, these issues will not be addressed in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, § IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal."). Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming that Complainant established a prima facie case of discrimination based on sex, age, and reprisal for engaging in previous EEO activity, we find that the Agency provided legitimate non-discriminatory reasons for its selection decision and for Complainant's receipt of the LOW. With respect to Complainant's non-selection (claims 1 and 2), the Agency maintained that C-1 was more qualified for the position than Complainant. Likewise, the Agency indicated that Complainant received the LOW because he failed to follow instructions about a project, ceased communication with his supervisor, and took the project in a different direction than that which was agreed upon by the team. Once the Agency articulates legitimate, non-discriminatory reasons for its actions, the burden reverts to Complainant to show that those reasons are a pretext for discrimination. Complainant has not carried this burden. The evidence presented by the Agency shows that Complainant was unable to establish that he was clearly more qualified for the position than C-1. C-1 was qualified for the position and possessed superior performance ratings, while the Complainant had both positive and negative performance ratings during his career, including the FY 2013 "Fully Successful" rating as a Hydrologist, GS-1315-12. Moreover, C-1 had supervisory experience. Like Complainant, C-1 was male. His age was 45 while Complainant was 51. We do not find such a great discrepancy that age discrimination would become a likely motive. Likewise, we find no persuasive evidence that Complainant's prior EEO activity played a role here. Although Complainant gave his opinion about the possibly negative motives of present and past supervisors and claimed that he was "promised" the position, we find that, at best, the evidence shows that some supervisors did highly regard his job performance, but others did not. Also, Complainant did not produce evidence of a promise to select him for the position beyond his own articulation. We also find no persuasive evidence that Complainant was told to withdraw his application, not to apply for a position, or that the position belonged to the Selectee in August 2013 (claims 3, 4, and 5). We do note, however, that if these allegations occurred exactly as alleged by Complainant, there is no persuasive evidence in the record that they took place for discriminatory reasons. As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge's credibility determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the evidence presented to us. Based on the record before us, we are not persuaded that Complainant has proven by a preponderance of the evidence that the reasons asserted by the Agency are a pretext for discrimination. Accordingly, we find that Complainant has failed to demonstrate that he was not selected based upon discriminatory animus, claims 1 and 2, nor did he establish discrimination with respect to claims 3, 4, and 5. Furthermore, we find no evidence that Complainant's sex, age or prior EEO activity played a role with regard to the issuance of the LOW, claim 9. We note that employers have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Burdine, 450 U.S. 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Harassment Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that claims 1 - 5 and 9 were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Reprisal In its enforcement guidance on retaliation, the Commission states: The anti-retaliation provisions make it unlawful to discriminate because an individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII, the ADEA, the EPA, the ADA, the Rehabilitation Act, or GINA. This language, known as the "participation clause," provides protection from retaliation for many actions, including filing or serving as a witness for any side in an administrative proceeding or lawsuit alleging discrimination in violation of an EEO law. The participation clause applies even if the underlying allegation is not meritorious or was not timely filed. The Commission has long taken the position that the participation clause broadly protects EEO participation regardless of whether an individual has a reasonable, good faith belief that the underlying allegations are, or could become, unlawful conduct. Although the Supreme Court has not addressed this question, the participation clause by its terms contains no limiting language, and protects from retaliation employees' participation in a complaint, investigation, or adjudication process. EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice 915.004 (Aug. 25, 2016) (Retaliation Guidance). We have held that the actions of a supervisor are discriminatory based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Here, we find that the actions of S-1 were discriminatory based on reprisal. Even if we assume that S-1's version of these events was 100% accurate, we would still find that he sought to interfere with Complainant's EEO activity. Complainant engaged in protected EEO activity, i.e., he contacted an EEO counselor and initiated pre-complaint activity. S-1 was aware of that activity and contacted Complainant. S-1 stated "that the email about a pre-EEO complaint was weighing on his mind. S-1 acknowledged asking Complainant why he had filed "now." S-1 recalled stating that the EEO process was probably not "the most enjoyable path for anyone involved." He also appeared to offered Complainant an incentive for withdrawing from the EEO process, by telling him that, if rumors of changes in management occurred and he had a good evaluation in hand, he, S-1, would have another conversation with senior management about a technical GS-13 position. This is not inconsistent with Complainant's testimony that he was told that (1) he should not have engaged in EEO activity; and (2) his work had been outstanding and maybe in six months they could try to get him a GS-13 position. Likewise, we note Complainant's testimony that he was told: (1) he should not have filed; and (2) this will only make everyone mad and no one will win. This is not inconsistent with S-1's testimony that he told Complainant, during a conversation that he described as, honest and heartfelt, that the EEO process was probably not "the most enjoyable path for anyone involved." He also admitted telling Complainant that he pulled the trigger to soon by engaging in EEO activity. The conversation between Complainant and S-1 occurred only because Complainant engaged in protected EEO activity. We find that S-1 engaged in conduct that was designed to intimidate and/or interfere with Complainant's EEO activity. We further find that S-1 comments would be reasonably likely to deter an employee from exercising their rights under the EEO statutes, and that the actions and comments by S-1 were clearly in violation of the anti-retaliation provisions of our regulations.3 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. We find that the Agency properly found no discrimination regarding claims 1, 2, 3, 4, and 5, and that it properly dismissed claims 6 and 7. We further AFFIRM the Agency's finding that Complainant was not subjected to a hostile work environment. Complainant' however, did establish that he was discriminated against with regard to his claim that his supervisor subjected him to retaliation with he spoke to him about his EEO activity. We REMAND this matter for further processing in accordance with this Decision and the Order below ORDER The Agency is ORDERED to take the following remedial action, within one hundred and twenty (120) calendar days of the date this decision is issued: 1. The Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford him an opportunity to establish a causal relationship between the Agency's retaliation and his 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. 2. The Agency shall provide at least eight hours of in-person EEO training to S-1 regarding his responsibilities under Title VII, with special emphasis on the duty of managers to avoid retaliating against employees. 3. The Agency shall consider taking appropriate disciplinary action against S-1. The Agency shall report its decision to the Compliance Officer referenced herein. 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 the identified management officials have left the Agency's employment, the Agency shall furnish documentation of the departure date(s). POSTING ORDER (G0617) The Agency is ordered to post at its Missouri Water Science Center facility in Rolla, Missouri 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 was issued, 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) 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 the date this decision was issued. 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 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 signature Carlton M. Hadden, Director Office of Federal Operations _8/16/17_________________ 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 S-1's comments to the EEO Counselor were incorporated into his sworn affidavit to the investigator. 3 Complainant requested that the Commission also consider an alleged "second act of reprisal" concerning management's criticism of an ongoing project. Complainant, however, is advised that he needs to contact an EEO counselor about this matter if he has not done so already and that it will not be considered as part of the current case. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150460