U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * GARRET W.,1 COMPLAINANT, v. MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (SOUTHERN AREA), AGENCY. Appeal No. 0120173051 Agency No. 1G721001117 October 30, 2018 DECISION On September 13, 2017, Complainant appealed, pursuant to 29 C.F.R. § 1614.403, from the July 13, 2017 Final Agency Decision ("FAD") concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Building Equipment Mechanic ("BEM"), Level 9, at the Little Rock Processing and Distribution Center ("P&DC") in Little Rock, Arkansas. On February 23, 2017, Complainant filed an EEO complaint alleging that he had been subjected to discrimination by the Agency on the bases of race (African-American), color (black), and age (54) when: On December 3, 2016, he was informed he had not been selected for a Supervisor, Maintenance Operations ("SMO") position. The Agency accepted the complaint and conducted an investigation. As the evidence developed during the investigation shows that Complainant had 30 years of Maintenance craft experience, and over 10 years as an Acting Supervisor, Maintenance Operations ("SMO") off and on. Complainant interviewed for seven supervisory positions, but had yet to be selected, even though he found himself training newly promoted SMOs. Complainant alleged that the selecting official for four of the SMO positions, including those in the instant complaint, was the Lead Manager, Maintenance ("LM") (White, Caucasian, 51) "did not like blacks" and "did not speak to him like a man." In September 2016, two SMO vacancies were posted on the Agency website. A Review Committee, comprised of the Review Committee Chair ("RC") (White, Caucasian, 61), and two other members (race and age not specified) scored applications by using a Requirement-By-Applicant Matrix ("Requirement Matrix"). The Requirement Matrix contained the applicant's name, and space to assign 0 to 3 points for nine qualification requirements listed for the SMO position. These numerical scores (also known as "KSA points") were added together to create a ""Raw Score," which was converted to a percentage, or "Basic Score." Of the 14 applications it received, the Review Committee identified 6 applications with a Basic Score of 70% or higher, and forwarded them to LM, the selecting official for both vacancies. The candidate with the highest score, at 85%, (age 56, race not specified) withdrew his application because he was offered an SMO position at another facility. Complainant was tied for second highest score. In November 2016, LM conducted phone interviews with the remaining 5 candidates and completed a Requirement Matrix for each. The two candidates that LM selected, Cl (white, Caucasian, 50) and C2 (white, Caucasian, 29) had significantly less supervisory experience, and time in craft than Complainant. The record showed that while RC had Complainant and C2 tied for the second highest score at 75% and Cl at 70%, LM awarded Cl the highest score, 23. C2 scored 22, and Complainant scored 20. LM explained that he based his scores on the candidates' interview performance, and C1, and C2 "demonstrated that they were either better prepared or better able to convey their knowledge and accomplishments better than the other applicants." Complainant argues that there is "no comparison" between his qualifications for the SMO position and those of Cl and C2, and that LM is aware of his experience in the SMO position and decades in the Maintenance Craft. Among other things, Complainant explains that he is experienced conducting preventative and corrective maintenance for postal equipment and buildings, including determining the cause of failures in systems and equipment and ability to assess and make recommendations, which fall within the SMO's responsibilities. According to Complainant, Cl has no experience in the Maintenance Craft, and C2 has only two years. Both have far less supervisory experience as well. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or ""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 agency decision ("FAD") pursuant to 29 C.F.R. § 1614.110(b), concluding that Complainant failed to prove discrimination as alleged. Complainant filed the instant appeal. The Agency responded that the matter should be dismissed for untimely filing of an appeal, or, alternately, on the merits. ANALYSIS AND FINDINGS 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"). Timeliness of Appeal Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action, pursuant to 29 C.F.R. § 1614.402(a). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. According to the Agency, on July 17, 2017, Complainant received a copy of the FAD, delivered by mail. The FAD included notice of the filing deadline and explained how to file an appeal with this Commission. Based on a July 17, 2017 date of receipt, Complainant's last day to timely file his appeal would be August 16, 2017. Complainant filed his appeal with the Commission on September 13, 2017. Where, as here, there is an issue of timeliness, an agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. See Guy. v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994), Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In addition, the agency has the burden of providing evidence and/or proof to support its final decisions. Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993) (other citations omitted). The Agency's proffered evidence that Complainant received the FAD on July 17, 2017, is tracking information containing only a generalized reference to city and zip code, without a specific delivery address. The Commission will not accept tracking information containing only a generalized reference to city and zip code, without a specific delivery address, as proof of receipt. See Complainant v. Dep't of the Army, EEOC Appeal No. 0120140066 (May 29, 2014), reconsideration denied, EEOC Request No. 0520140487 (Jan. 29, 2015); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140438 (Mar. 6, 2014). We note that the tracking information is also ambiguous, since it includes an entry labeled, "arrival at unit" dated July 17, 2017, as well as an entry labeled "delivered in/at mailbox" on August 31, 2017. If the FAD was delivered on the latter date, Complainant's September 13, 2017 filing date would be timely. The Agency failed to meet its evidentiary burden, so we will not dismiss this appeal on timeliness grounds. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis found in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, a complainant 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). To establish a prima facie case of age discrimination, Complainant must show that he was over forty years of age, that he was subjected to an adverse employment action, and that he was treated less favorably than other similarly situated employees younger than himself, i.e. he was accorded treatment different from that given to persons who are considerably younger than he. See Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). The Supreme Court has held that because the ADEA prohibits discrimination based on age and not class membership, the fact that a similarly situated comparative is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than the fact that the plaintiff was treated differently than someone outside his protected class. See O'Connor, at 312; EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996). While there is no bright-line test for what constitutes "substantially younger," that term has generally been applied to age differences in excess of five years. See Hammersmith v. Soc. Sec. Admin., EEOC Appeal No. 01A05922 (Mar. 6, 2002). In the instant matter, Complainant is only one year older than one of the selectees, C1, which we find to be an insufficient difference in age to establish an inference of age discrimination, even though the other selectee, C2, is "substantially younger" than Complainant. Additionally, three out of the six candidates selected by the Review Committee, were over age 50, including Complainant and C1. The third candidate over age 50 was 3 years older than Complainant, further indication that age was not a factor in the selection process. See Latamore v. Dep't of Justice, EEOC Appeal No. 01A41742 (Apr. 30, 2004); Hickman v. Dep't of Justice, EEOC Appeal 01A11797 (Dec. 20, 2001). Complainant has not established a prima facie case for age discrimination. Complainant presents facts that, if unexplained, reasonably give rise to an inference of discrimination, based on race. Specifically, Complainant, who is black and African American, applied for a position, was deemed qualified, and was not selected, in favor of two white, non-African American selectees, Cl and C2, also deemed qualified. While Complainant also raises the specter of nepotism, as C2's father and grandfather also worked at the facility, we find the evidence sufficient to establish a prima facie case discrimination based on race and color.2 As Complainant has established a prima facie case for discrimination based on race, the next step under the McDonnell Douglas analysis if for 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). Once the Agency does so, Complainant must demonstrate by a preponderance of the evidence that the Agency's non-selection was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502 (1993). In non-selection cases, the legitimate nondiscriminatory reason must include a "specific, clear, and individualized explanation" for the non-selection so that the complainant is provided with an opportunity to prove that the agency's explanation was a pretext for discriminatory animus. See Boston v. United States Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004). Otherwise, a complainant is not required to demonstrate pretext if he or he has established a prima facie case, and the Agency's legitimate nondiscriminatory reason is "so generalized, conclusory, and vaporous as to offer no substantive explanation of the Agency's action." See Fullman v. United States Postal Serv., EEOC Appeal No. 01A31036 (Mar. 18, 2004). We have previously determined that where "the record contains the bare numerical scores [but] no testimonial or documentary evidence that explains why the panelists scored Complainant and the selectees the way they did, it can indicate that the scores were simply the selection panelists' subjective assessments." Steward v. Dep't of Homeland Sec., EEOC Request No. 050070124 (Nov. 14, 2011) (granting request for reconsideration of EEOC Appeal No. 0120053702 (Oct. 12, 2006)). Although subjective assessments can serve as legitimate non-discriminatory reasons for non-selection, "because subjective reasons can be a pretext for discrimination, such 'reason[s] will satisfy the employer's burden of production . . . only if the employer articulates a clear and reasonably specific basis for its subjective assessment."' Steward citing Browning v. Sw. Research Inst., 288 Fed. Appx. 177 (5th Cir. 2008), other citations omitted. For instance, if an agency fails to provide "specific, clear, and individualized explanation" for why its selecting officials assigned their respective ratings or scores to a complainant and the selectees, it fails to meet its burden of production. See Clemente v. Dep't of Justice. EEOC Appeal No. 0720080012 (Sept. 24, 2008); Glomski v. United States Postal Serv., EEOC Appeal No. 01955157 (Jul. 17, 1997). The Agency's legitimate non-discriminatory reason for not selecting Complainant for one of the SMO positions is that the two selectees, Cl and C2, scored higher than him on the Requirements Matrix completed by the selecting official LM. However, LM's explanation for his scoring consisted mostly of conclusory statements, such as "Complainant did not score as well in the hiring process as C2" or indicating without detail that the selectees gave better interviews. When asked to "explain how an employee's length of service as a career employee and/or an acting supervisor factored into your process," LM stated "seniority is not used for determining qualifications for management positions, only craft positions." LM did not address how he determined a higher score for C1's one year of experience in a supervisory position as opposed to Complainant's 10 years of acting supervisory experience. Such conclusory statements do not constitute a legitimate nondiscriminatory reason, and "thwart the fact-finder's ability to comparatively analyze candidates." Steward, EEOC Appeal No. 050070124 citing Wilson v. Dep't. of Veterans Affairs. EEOC Appeal No. 01995055 (Dec. 21, 2001); see also EEOC v. Target Corp., 460 F.3d 946, 959 (7th Cir. 2006) (employer should have articulated qualities applicant failed to meet to articulate legitimate, nondiscriminatory reason so applicant would know what evidence to present to establish pretext). We note that LM does not dispute that Complainant served as an acting supervisor for a longer period than both Cl and C2, and no witness offered any reason related to Complainant's performance as acting SMO to explain his non-selection. Despite his role as the selecting official, LM provided scant information about the candidate interviews. Yet, he asserts that the interviews were the primary basis for his scores and the reason he did not select Complainant. There are no interview notes, and LM did not provide the specific questions he asked during the interviews, or even confirm that the candidates were asked the same questions. Rather, LM testified that he asked open-ended questions beginning with phrases such as "describe your ability" and "what is your knowledge or involvement in" to elicit a more detailed response from candidates. We note that the questions Complainant recalls from LM's interview identify specific situations, such as what would Complainant do if two employees got in a fight, or in the event of an unannounced safety inspection. While the record includes materials from the Handbook EL-312 and the ""Interviewer's Quick Guide," which LM states he used for guidance in conducting the interviews, he does not specify how he used these materials in his interview and selection process. Likewise, the record is devoid of written or testimonial evidence to explain the differences between the Review Committee and LM's scores on the Requirement Matrix. The Review Committee Chair's (RC) Requirement Matrix shows that Complainant and C2 tied for the highest score among those interviewed by LM at 75% and received the same scores/KSA points for each requirement. Cl received a 70% from RC, scoring lower on Requirement 5 than C2 and Complainant. In contrast, LM scored Cl higher than Complainant and C2 for Requirement 5. LM scored Complainant lower than C1 and C2 on Requirements 7 and 9, even though all three received the same score on those requirements from RC. Neither LM, nor RC, provide any notes about how they came to their decisions. Additionally, the Requirement Matrixes for the other named members of the Review Committee are not included in the record, and their signatures are not included in the spaces provided on RC's Matrix. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find the Agency's evidence does not provide a specific, clear, and individualized explanation as to why Complainant was not selected for a position for which he was deemed qualified. Therefore, the Agency has not met its burden of production, and Complainant's initial inference of race color discrimination remains unrebutted. CONCLUSION Accordingly, the Agency's final decision concluding no discrimination was established is REVERSED. The matter is hereby REMANDED for further processing in accordance with this Decision, and the following Order: ORDER (D0617) Within 60 calendar days from the date of this decision, unless otherwise indicated, the Agency is ordered to take the following remedial action: 1. Promotion. Complainant shall be retroactively promoted to a SMO, EAS-17 (or a substantially equivalent) position at the Little Rock P&DC in Little Rock, Arkansas. Complainant may decline the offered position, and his entitlement to back pay shall cease as of the date he declines the position. 2. Back Pay. Complainant is entitled to a back pay award, for the difference between what he was actually paid and what he would have earned as an SMO, for the period beginning December 2, 2016 (the processing date for Cl and C2's promotions to SMO) and continuing until he is promoted to an SMO position or declines an offer of one. Within 60 calendar days after the date of this Decision, the Agency shall determine the appropriate amount of back pay, with interest, and other benefits due to Complainant, pursuant to 29 C.F.R. § 1614.501, was issued. 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 payment to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute regardless of whether he accepts the Agency's payment. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. Compensatory Damages. Within 30 calendar days of the date of this Decision, the Agency shall notify Complainant that he has a 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 45 calendar days of receiving the Agency's notice. Within 30 calendar days of receipt of Complainant's evidence (or when the 45-day limitation period has passed), the Agency shall complete the investigation on the claim for compensatory damages and issue a decision on the claim, with appeal rights to this Commission, in accordance with 29 C.F.R. § 1614,110.3 4. Training. Within 45 calendar days of the date of this Decision, LM must complete a minimum of 4 hours of in-person training/discussion with either an Agency official with relevant expertise, or an EEO trainer, about recognizing and preventing discrimination or bias on the bases of race color during selection processes, and discussing how his actions contributed to this Decision. The training will also provide instructions and practice for objectively scoring applications and interviews, as well as the roles and responsibilities of a selecting official for ensuring equal opportunity and proper recordkeeping. 5. Disciplinary Action. Within 30 calendar days of the date of this Decision, the Agency shall determine whether to take appropriate disciplinary action against LM. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, the appropriate official shall provide the EEO Compliance officer with a written explanation of his or her decision not to impose disciplinary action. If LM is no longer employed by the Agency, the Agency shall provide the Compliance Officer with documentation of his departure. Training does not constitute disciplinary action. 6. Attorney's Fees and/or Costs. Complainant is entitled to attorney's fees under Title VII, as provided in the statement below this Order, entitled "Attorney's Fees." Complainant may also submit any costs he paid while pursuing his Title VII Claim (e.g. postage) with receipts and explanations to the Agency for reimbursement. If there is a dispute regarding the exact amount owed, the Agency shall issue payment to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute regardless of whether he accepts the Agency's payment. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 7. Posting Order. As provided in the statement below, the Agency must post the Notice within 30 days of the date this decision is issued, and the Notice shall remain posted for 60 consecutive days. 8. Compliance Report. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled " "Implementation of the Commission's Decision."4 POSTING ORDER (G0617) The Agency is ordered to post at its Little Rock P & DC facility 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 (K0618) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations Footnotes 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 Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination. 3 Information on determining Compensatory Damages: EEOC MD-110, Ch. 11 § VII (Aug. 5, 2015) available at https://www.eeoc.gov/federal/directives/md-110_chapter_11.cfm, and N. Thompson, Compensatory Damages in the Federal Sector: An Overview. EEOC Digest Vol. XVI, No. 1 (Winter 2005) available at https://www.eeoc.aov/federal/digest/xvi-1.cfmflarticle (explains Carle v. Dep't of the Navy under the subsection "Proof of Damages"). 4 Compliance "Quick Reference Chart" for documentation the Commission will accept as proof of compliance with an Order may be found in "Appendix Q" of the EEOC MD-110 (Aug. 5, 2015) available at https://www.eeoc.gov.federal/directives/upload/md-110.pdf. For additional assistance, please do not hesitate to contact an OFO Compliance Officer.