U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sara S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120152270 Agency No. 4J-606-0122-14 DECISION Complainant filed an appeal from the Agency's May 18, 2015, 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 Whether the Agency discriminated against Complainant on the bases of disability, and in reprisal for prior EEO activity when on April 28, 2014, she was sent home; and her requests for light duty were denied. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Harwood Heights and Ashburn stations in Chicago, Illinois. On April 26, 2014, Complainant reported to the Harwood Heights station for her assignment. On April 28, 2014, Complainant went out to deliver mail and in the afternoon, she called her supervisor (S1) to ask if the rest of the mail would be brought out to her, or if she should come pick it up at the station. S1 instructed Complainant to return to the station. Complainant alleged that when she returned, her second line supervisor (S2) informed her that since she was on light duty, she could not return to work. S2 also instructed Complainant to submit a request for light duty to the Postmaster (PM). On May 1, 2014, Complainant submitted her request for light duty to S1, and again on May 14, 2014. Complainant also submitted her request to the PM on May 5, 2014. With her request, Complainant provided a statement from her doctor (DR) noting that she was restricted in, among other things, lifting (25 pounds); walking (30-50 minutes); and climbing (10-20 minutes). He also stated that Complainant "may need 10 min break/hr." On May 21, 2014, the Executive Manager, Post Office Operations (EMPOO), informed Complainant that her request for light duty had been denied because she had not provided information about her restrictions or updated medical documentation. On June 2, 2014, the Light Duty Coordinator (LDC) sent Complainant a letter acknowledging receipt of her light duty request, and requested that Complainant submit medical documentation in support of her request.2 On June 21, 2014, Complainant reported to work at the Ashburn Station and found that her timecard was not in the rack. Complainant spoke with the Manager, Customer Services (MCS), who asked if she was on light duty. Complainant replied that she was on light duty, and provided the MCS with a copy of her medical restrictions. The MCS informed Complainant that since she was unable to carry her full route, the MCS was not allowing her to clock in. The MCS also provided Complainant with a Relinquish Assignment memo informing her that she had not fulfilled her requirement to maintain her current assignment, and that she had two weeks to provide medical documentation indicating that she could fulfill the requirements of her bidded assigned duties for the next six months. On June 24, 2014, Complainant sent the MCS a response to the letter stating that she had provided a copy of her medical restrictions during their meeting on June 21, 2014. On July 1, 2014, Complainant submitted a request for a reasonable accommodation to the District Region Accommodation Committee (DRAC).3 On July 15, 2014, the MCS sent another letter to Complainant informing her that since she had not provided medical documentation, she had relinquished her current assignment. On September 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (back injury), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On April 28, 2014, she was sent home after working 6.30 hours; 2. On multiple dates, her requests for "Light Duty" were denied; and 3. On June 21, 2014, she was not permitted to clock in to work.4 On January 5, 2015, the Agency's Dispute Resolution Team (DRT) issued a decision on Complainant's grievance finding that the Agency violated Article 13 of the National Agreement when it denied Complainant light duty work on April 28, 2014 because the Agency did not demonstrate that they searched for work within Complainant's restrictions. On March 17, 2015, the DRT issued an award decision on its finding that Complainant was denied light duty from May 5, 2014, through January 9, 2015. At the conclusion of the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision, pursuant to 29 C.F.R. § 1614.110(b), on May 18, 2015, concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant had not established a prima facie case of reprisal discrimination because the management officials named in the instant EEO complaint were not involved in Complainant's prior EEO cases, nor were they aware of her prior EEO activity. In regards to Complainant's disability claim, the Agency assumed, without finding, that Complainant was a qualified individual with a disability. The Agency also assumed that Complainant had established a prima facie case of discrimination based on disability and in reprisal for prior EEO activity, and found that management officials articulated legitimate, nondiscriminatory reasons for their actions. For claim 1, S2 stated that she did not send Complainant home, but that when Complainant returned to the station, she stated that she could not finish her work and left. For claim 2, the EMPOO stated that Complainant's requests for light duty were denied because she did not provide information about her restrictions, or updated medical documentation. The EMPOO also stated that medical documentation needed to be submitted within seven days of being signed by a health care practitioner. The LDC stated that she sent Complainant the June 2, 2014, letter informing her that a decision on her light duty request could not be made without additional medical information. In regards to claim 3, the MCS stated that when Complainant informed her that she was on light duty, the MCS did not allow Complainant to clock in. The MCS stated that since requests for light duty are handled at the district level, not the station level, she denied Complainant the ability to clock in, and informed her that she would need to submit a request for light duty. The Agency then found that Complainant had not presented any evidence showing that the proffered reasons were pretext for discrimination. Additionally, the Agency found that Complainant had not shown that she was discriminated against when it failed to provide her with a reasonable accommodation. While the Agency assumed that Complainant was a qualified individual with a disability, it found that since an agency is not required to lower standards or eliminate essential job functions, reassignment would be the only effective accommodation. The Agency then found that since Complainant did not provide any evidence that there were any vacant, funded positions to which she could be reassigned, she did not show that the Agency violated the Rehabilitation Act. Complainant filed the instant appeal and submitted a brief in support of her appeal on July 17, 2015. The Agency did not file an opposition brief. CONTENTIONS ON APPEAL On appeal, Complainant argues that there is direct evidence showing that she was discriminated against. She also argues that the Agency's reasons for its actions are pretext for discrimination. 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"). Direct Evidence On appeal, Complainant alleges that S2's statement that she spoke with Complainant's former managers, which was not warranted, shows direct evidence of discrimination. However, direct evidence is that evidence which, if believed, "will prove the particular fact in question without reliance upon inference or presumption...." Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 569 (7th Cir. 1989). Direct evidence of discrimination may include any action, or any written or verbal policy or statement made by an agency official that on its face demonstrates a bias against a protected group and is linked to the complained of adverse action. See Jaakkola v Dep't of Commerce, EEOC Req. No. 05950390 (Aug. 29, 1996); Cafaro v. Dep't of the Treasury, EEOC Request No. 05920480 (Aug. 27, 1992). For example, a statement such as "Fire her, she's too old" would be direct evidence of age discrimination. Id. Evidence attacking an employer's explanation for its actions is not direct evidence, since such evidence does not prove, by itself, an employer's motivation. Caldwell v. Dep't of Veterans Affairs, EEOC Request No. 05920018 (March 12, 1992), citing Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2nd Cir. 1989). The Commission has found direct evidence of discrimination, where there was testimony by more than one witness that a supervisor made harsh, derogatory comments about the race of complainant and others, and that this discrimination contributed to the challenged employment decision. Winnie v. Federal Deposit Insurance Corp., EEOC Request No. 05890969 (June 28, 1989). In this case, Complainant argues that her current managers had no reason to speak with her former managers; however, she has not shown that anyone made statements demonstrating bias against individuals with disabilities or against those who have prior EEO activity. As such, we find that Complainant has not provided direct evidence of discrimination Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Reprisal Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In this case, we find that Complainant has not established a prima facie case of reprisal discrimination because she has not shown that the management officials were not aware of her prior EEO activity. Disability In analyzing a disparate treatment claim under the Rehabilitation Act, where an agency denies, as the Agency does here, that its decisions were motivated by an employee's disability and there is no direct evidence of discrimination, Petitioner may demonstrate a prima facie case by establishing that: (1) she is an "individual with a disability;" (2) she is "qualified" for the position held or desired; (3) she was subjected to an adverse employment action; and (4) the circumstances surrounding the adverse action give rise to an inference of discrimination. See Heyman v. Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 68 (2d Cir. 1999); Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001). An individual with a disability is one who: (1) has a physical or mental impairment that substantially limits one or more 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). Major life activities include such functions as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). Examples of other major life activities include, but are not limited to, sitting, standing, lifting, and reaching. 29 C.F.R. Part 1630 App. § 1630.2(i). They also include thinking, concentrating, interacting with others, and sleeping. See EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC No. 915.002 (Mar. 25, 1997). An impairment is substantially limiting when it prevents an individual from performing a major life activity or when it significantly restricts the condition, manner or duration under which an individual can perform a major life activity. 29 C.F.R. § 1630.2(j). The individual's ability to perform the major life activity must be restricted as compared to the ability of the average person in the general population to perform the activity. Id. We find that the record contains four medical statements which establish that Complainant is an individual with a disability. The DR stated that Complainant had a pinched nerve and degenerative disc disease; and had developed "multiple tendonitis in her upper extremities and derangement of her right knee." As a result of her conditions, Complainant experiences numbness, tingling, and radiating pain in both legs; swelling tenderness in both wrists; and muscle spasms and tenderness in the cervical area. As discussed above, the DR also provided Complainant's restrictions. Accordingly, we find that Complainant is an individual with a disability because she is substantially limited in in her ability to lift, and walk. Complainant stated that she is able to perform all of her duties, but that she "experience[s] back spasms and [her] toes go numb when [she] walks distances greater than 3 miles without rest." While the MCS stated that Complainant's condition affects her ability to perform her job because she is not able to "consistently carry to 6 hours per day," the job description for City Carriers that was included in the record does not specify that their duties include carrying mail up to 6 hours per day. As such, we find that Complainant is qualified for her position. Additionally, we find that Complainant was subject to adverse action when she was informed that she was unable to work because she had requested light duty, and when she was denied light duty. We also find that the circumstances surrounding these adverse actions give rise to an inference of discrimination because they were related to her disability. As such, we find that Complainant has established a prima facie case of disability discrimination. In response to Complainant's disability discrimination claims, the Agency proffered legitimate, nondiscriminatory reasons. For claim 1, S2 denied sending Complainant home on April 28, 2014. S2 stated that Complainant returned to the station with her undelivered mail, stated that she could not finish her route, and went home. For claim 2, the EMPOO stated that she denied Complainant's request for light duty because Complainant's request "does not provide any restrictions or updated medical information from [her] Physician." For claim 3, the MCS stated that she did not allow Complainant to clock in when she claimed that she was on light duty. Since light duty was granted at the district level, and not the station level, the MCS informed Complainant that she needed to submit her request to the district to get approval for a light duty assignment before being allowed to work. However, Complainant argues that the reasons are pretext for discrimination. Complainant can establish pretext in two ways: "(1) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. For claim 1, Complainant states, and the record shows, that on her leave request form, dated May 14, 2014, she wrote that she was requesting leave because she was "sent home," and that S1 signed and approved her leave. We find that Complainant has presented evidence to show that S2's claim that Complainant was not sent home is inconsistent with S1's approval of her leave request, which specifies that she was "sent home." In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Court held that a fact finder is not required, as a matter of law, to find discrimination whenever it finds that an employer's explanation for its actions is not credible. Id. at 519. The Court, however, made clear that a fact finder might find discrimination in such circumstances. Id. at 524. The critical factor is that a fact finder must be persuaded by the complainant that it was discrimination that motivated the employer to act as it did. Id. Accordingly, we find that Complainant has shown pretext, and that the totality of the circumstances indicate that the Agency discriminated against her on the basis of her disability when it sent her home on April 28, 2014. For claim 2, we also find that Complainant has shown pretext. While the EMPOO claimed that the reason she denied Complainant's request was because she did "not provide any restrictions or updated medical information from [her] Physician," we note that the record shows that Complainant did provide a note from the DR, dated May 1, 2014, listing her numerous restrictions. The EMPOO also stated that medical documentation needed to be submitted within seven days, the record indicated, however, that Complainant submitted the May 1, 2014 medical documentation with her request for light duty on May 5, 2014. We also find that the EMPOO contradicted her stated reason for denying Complainant's request for light duty. In this regard, we note that she stated twice that Complainant had provided documentation noting her restrictions. In her statement, the EMPOO declared, "Complainant has restrictions and I have attached a copy of them;" and "Complainant provided a light duty status report with restrictions." Based on the above, we find that the EMPOO provided both untrue and contradictory explanations. As with claim 1, we find that the totality of the circumstances indicates that the Agency discriminated against her on the basis of her disability when it denied her request for light duty. In regards to claim 3, while Complainant alleged this as a separate claim, we find that this claim is part of the ongoing discrimination that occurred when she was told to go home on April 28, 2014, and when the Agency denied her request for light duty. Accordingly, we will not make a separate finding on claim 3. Additionally, we find that Complainant's claims are properly analyzed under the disparate treatment theory of disability discrimination, and not as a failure to provide a reasonable accommodation. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision finding that Complainant had not shown that the Agency discriminated against her based on disability, and in reprisal for prior EEO activity when it sent her home on April 28, 2014; and denied her request for light duty, and ORDER the Agency to take action in accordance with the order below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final: 1. The Agency shall conduct a supplemental investigation to determine whether Complainant is entitled to compensatory damages incurred as a result of the Agency's discriminatory actions from April 28, 2014, until January 9, 2015. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issues of compensatory damages no later than 60 days after the Agency's receipt of all information. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 2. Determine the appropriate amount of back pay, if any, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Back pay and benefits shall be calculated from April 28, 2014, through January 9, 2015. 3. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount. Complainant may petition the Commission for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer referenced in the statement entitled "Implementation of the Commission's Decision." 4. After the relevant back pay calculations have been made, the Agency shall request that Complainant submit her claim for compensation for any additional federal and state income tax liability. The Agency shall afford Complainant sixty (60) calendar days to submit her claim and supporting documents. The burden of proof to establish the amount of additional tax liability, if any, is on the Complainant. The calculation of additional tax liability must be based on the taxes Complainant would have paid had she received the back pay in the form of regular salary during the back pay period, versus the additional taxes she paid due to receiving the back pay lump sum award. Thereafter, the Agency shall issue a decision on this matter and any amount of proven additional tax liability within one hundred and twenty (120) calendar days of the date this decision becomes final in accordance with 29 C.F.R. § 1614.110(b). 5. The Agency shall post a notice in accordance with the paragraph below. 6. The Agency shall provide training to the EEO management officials regarding their responsibilities concerning case processing. 7. The Agency shall consider taking appropriate disciplinary action against the responsible management officials. 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 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). POSTING ORDER (G0914) The Agency is ordered to post at its Harwood Heights Station and the Chicago Main Post Office in Chicago, Illinois 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 (M0416) 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. The requests 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 request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations _8/5/16_________________ 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 The LDC was on a detail assignment and the EMPOO was filling in her duties. When the LDC returned, she took over handling Complainant's request for light duty. 3 Complainant had not received a response from DRAC before the conclusion of the investigation for the instant EEO case. 4 Complainant filed seven prior EEO cases starting in 1999, and the most recent case was filed on January 25, 2013. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152270 2 0120152270