                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RAM K. TRIPATHI,                                DOCKET NUMBER
                   Appellant,                        DC-0432-14-0612-I-1

                  v.

     NATIONAL AERONAUTICS AND                        DATE: July 28, 2016
       SPACE ADMINISTRATION,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Laura A. O’Reilly, Virginia Beach, Virginia, for the appellant.

           Charles A. Polen, Esquire, Hampton, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
¶2        The agency removed the appellant from the GS-15 position of Research
     Physicist based on a charge of unacceptable performance.        Initial Appeal File
     (IAF), Tab 4 at 17, 18, Tab 7 at 11. Specifically, the agency charged that the
     appellant’s performance in critical element 2 2 (CE-2) of his performance
     standards,   Nuclear    Fragmentation    Code    Comparison     (NUCFRG),       was
     unacceptable.    IAF, Tab 7 at 12.        The notice indicated that, during the
     performance improvement plan (PIP) period, the overall expectations were
     lowered since the work to be accomplished during the PIP did not include
     comparison of NUCFRG3 to other codes, as was required in the original
     performance standard. Id. Nonetheless, the agency charged that the appellant
     failed to achieve minimally successful performance during the PIP period. Id.
¶3        The appellant appealed the agency’s action, alleging that his performance
     was not unacceptable and that the agency discriminated against him on the basis
     of his age. IAF, Tab 1. Although the appellant initially requested a hearing,
     during proceedings before the administrative judge, he withdrew that request.

     2
       Title 5 C.F.R. § 432.103(b) defines “critical element” as “a work assignment or
     responsibility of such importance that unacceptable performance on the element would
     result in a determination that an employee’s overall performance is unacceptable.”
                                                                                        3

     IAF, Tab 10. Based on the written record, the administrative judge affirmed the
     appellant’s removal.   IAF, Tab 19, Initial Decision (ID).    She found that the
     agency took its action under a performance appraisal system approved by the
     Office of Personnel Management (OPM).        ID at 6.   She also found that the
     performance standards at issue were valid. ID at 7-8. As to the validity of the
     standards, she noted the appellant’s objections to the inclusion of CE-2 in his
     performance plan because he did not have the skills to perform that activity. ID
     at 7. She found, however, that the fact that the appellant objected to elements of
     his performance plan or considered them difficult did not make them invalid. Id.
¶4        The administrative judge also found that the agency provided the appellant
     with a reasonable opportunity to improve during the PIP period by reducing the
     initially required tasks under CE-2 and providing the appellant the periodic
     assistance of colleagues to help him achieve the goals established by the PIP.
     ID at 8-11. She found that the agency established that, of the five tasks assigned
     during the PIP, the appellant met the minimally successful level for items
     numbered 1, 2, and 3, but failed to meet the minimally successful level respecting
     items numbered 4 (report results in journal article or peer reviewed engineering
     report or similar publication that, among other things, demonstrates how the
     results were obtained) and 5 (provide report results according to a definite
     schedule, with final report due on September 2, 2013). IAF, Tab 7 at 179; ID at
     11. She found that the agency proved by substantial evidence that the appellant
     did not successfully complete the PIP, and therefore it met its burden to prove
     that the appellant’s performance of CE-2 of his performance standards was
     unacceptable. ID at 14.
¶5        The administrative judge also found that the appellant did not prove that the
     agency discriminated against him on the basis of age. ID at 14-21. She found
     that the appellant’s evidence that 11 other employees who were given a notice of
     proposed removal for poor performance or misconduct since January 1, 2009,
     were all over the age of 50 does not constitute preponderant evidence that the
                                                                                      4

     agency discriminated by age. ID at 19. She found additionally that, even if the
     appellant’s supervisor suggested that the appellant consider retirement, such a
     statement does not show that the suggestion was due to the appellant’s age. ID at
     19-21.
¶6        In his petition for review, the appellant disagrees with the administrative
     judge’s findings of fact and conclusions of law. He asserts that she erred when
     she found that the performance plan and standards were valid; erred when she
     ruled that the PIP provided the appellant a reasonable opportunity to demonstrate
     acceptable performance; erred when she found that the appellant’s performance
     was unacceptable; and erred when she found that there was no age discrimination.
     Petition for Review (PFR) File, Tab 1.
¶7        To sustain an action for unacceptable performance under chapter 43, the
     agency must demonstrate by substantial evidence, i.e., “the degree of relevant
     evidence that a reasonable person, considering the record as a whole, might
     accept as adequate to support a conclusion, even though other persons might
     disagree,” 5 C.F.R. § 1201.56(a)(1)(i), (c)(1), that: 1) the removal was effected
     under a performance appraisal system approved by OPM; 2) the performance
     standards are valid; 3) the employee was provided with a reasonable opportunity
     to demonstrate acceptable performance; and 4) the employee’s performance was
     unacceptable in at least one critical element. See 5 U.S.C. §§ 4302(b), 4303(a),
     7701(c)(1)(A); Diprizio v. Department of Transportation, 88 M.S.P.R. 73, ¶ 7
     (2001).   As noted, the appellant argues that the administrative judge erred in
     finding that the agency demonstrated items 2), 3), and 4).
¶8        As to item 2), the appellant asserts that the standard is invalid because he
     objected to it when it was added to his performance standards, but the agency
     nonetheless included it in his performance standards. It appears that the appellant
     is claiming that the agency erred in not providing him with an opportunity to
     participate in the establishment of the performance standards for his position.
     Under 5 U.S.C. § 4302(a)(2), agencies shall develop performance appraisal
                                                                                           5

      systems which encourage employee participation in establishing performance
      standards. However, 5 U.S.C. § 4302(a)(2) does not create any substantive right
      for each employee to have an actual opportunity to participate in the development
      of performance standards, and there is no statutory or regulatory requirement that
      each employee have an actual opportunity to participate in the development of his
      or her performance standards.       We cannot interpret 5 U.S.C. § 4302(a)(2) as
      requiring that the agency offer the appellant an opportunity to participate in the
      development of established standards prior to taking an action for unacceptable
      performance under chapter 43. Therefore, we find that the appellant fails to show
      any error in this regard.
¶9          The appellant also asserts that the agency’s performance appraisal system is
      invalid because it did not define minimally acceptable performance. Performance
      standards are not valid if they do not set forth the minimum level of performance
      that an employee must achieve to avoid removal for unacceptable performance
      under chapter 43.    Eibel v. Department of the Navy, 857 F.2d 1439, 1441–44
      (Fed. Cir. 1988).
¶10         Agency performance appraisal systems may include between two and five
      summary rating levels. 5 C.F.R. § 430.208(d). Under any performance appraisal
      system, the lowest rating level is “unacceptable,” which is the only rating that
      will support removal under chapter 43. Jackson–Francis v. Office of Government
      Ethics,   103   M.S.P.R.     183,   ¶   6     (2006);   Stenmark   v.   Department   of
      Transportation, 59 M.S.P.R. 462, 468 (1993); see 5 U.S.C. § 4302(b)(6); 5 C.F.R.
      §§ 430.206(b)(8), 430.207(c), 430.208(d). Under certain performance appraisal
      systems, performance of a critical element may fall between “fully successful”
      and “unacceptable.”         5 C.F.R. §§ 430.207(c), 430.208(d); see Jackson–
      Francis, 103 M.S.P.R. 183, ¶ 6.             If an agency adopts such a performance
      appraisal system, an appellant’s performance could be “not satisfactory” without
      falling to the level that would support removal.          5 C.F.R. §§ 430.207(c)–(d),
      430.208(d); see Jackson–Francis, 103 M.S.P.R. 183, ¶ 6.
                                                                                          6

¶11           Here the agency’s Performance Plan sets forth each critical element but
      does not define the level of performance for each element as part of the Plan,
      defining only the meets expectations and significantly exceeds expectations
      levels. IAF, Tab 7 at 186-90. While the agency’s performance standards were
      not sufficiently precise as to the minimally satisfactory level of performance, the
      PIP identified specific tasks with such detail that, when read in conjunction with
      the performance standards, the appellant was apprised of the tasks he was
      required to perform to meet the minimally successful level of performance.
      Diprizio, 88 M.S.P.R. 73, ¶¶ 10–11. Even if the performance standards lacked
      specificity, the agency provided the appellant with clear guidance of what was
      expected of him during the PIP. IAF, Tab 7 at 177.
¶12           As to item 3), the appellant asserts that the agency failed to give him a
      reasonable opportunity to improve. Before initiating an action for unacceptable
      performance under 5 U.S.C. § 4303, an agency must give the employee a
      reasonable opportunity to demonstrate acceptable performance.               Greer v.
      Department of the Army, 79 M.S.P.R. 477, 480 (1998).             OPM’s regulations
      governing performance-based actions under 5 U.S.C. § 4303 state, “[a]s part of
      the employee’s opportunity to demonstrate acceptable performance, the agency
      shall    offer   assistance   to   the   employee    in   improving     unacceptable
      performance.”      5 C.F.R. § 432.104; see Gjersvold v. Department of the
      Treasury, 68 M.S.P.R. 331, 336 (1995). The employee’s right to a reasonable
      opportunity to improve is a substantive right and a necessary prerequisite to all
      chapter 43 actions. Sandland v. General Services Administration, 23 M.S.P.R.
      583, 590 (1984). In determining whether the agency has afforded the appellant a
      reasonable opportunity to demonstrate acceptable performance, relevant factors
      include the nature of the duties and responsibilities of the appellant’s position, the
      performance deficiencies involved, and the amount of time that is sufficient to
      enable the employee to demonstrate acceptable performance.                  Satlin v.
      Department of Veterans Affairs, 60 M.S.P.R. 218, 225 (1993) (finding that the
                                                                                         7

      administrative judge properly considered the appellant’s length of service and
      experience in concluding that the appellant had received both adequate instruction
      and time in which to demonstrate improvement).
¶13         CE-2 required that the appellant compare NUCFRG3 and Quantum Multiple
      Scattering Fragmentation Model (QMSFRG) to other nuclear physics codes,
      compare to experiment, and report results in a journal article or peer-reviewed
      engineering report or similar publication. IAF, Tab 7 at 178. However, during
      the PIP, the appellant was required to compare only NUCFRG3 to other nuclear
      physics codes.   Id.   The appellant states that he was “far removed” from the
      NUCFRG3 project, having worked 18 years earlier on NUCFRG2, and he did not
      have the tools that he needed for the project. He states that he had to obtain these
      tools from other researchers to begin the project. Id. at 10. Only the first three of
      the five elements of the appellant’s PIP required that he perform tasks relevant to
      the provision of CE-2 that he “Compare NUCFRG3 to other nuclear physics
      codes.” Id. at 178-79. The agency found that the appellant met the minimally
      satisfactory level regarding these three elements.       Id. at 26.     Because the
      appellant met the minimally satisfactory level regarding these elements, we find
      that he was given a reasonable opportunity to improve as to them.
¶14         Elements numbered 4 and 5 of the PIP, the elements that the appellant
      failed, required that he report the results of his NUCFRG3 comparison data in a
      journal article or peer-reviewed engineering report or similar publication on a
      specific time schedule. Id. at 179. To achieve the minimally successful level the
      agency provided that the appellant and his supervisor would work closely
      together and discuss the assignments if he needed any clarification. Id. at 178.
      Further, they would meet weekly for an hour to discuss the PIP assignments and
      activities so that the appellant could demonstrate his progress and ask questions.
      Id. The appellant also was provided the periodic assistance of colleagues to help
      him achieve the goals established by the PIP.        IAF, Tab 15 at 30.      As the
      administrative judge found, the level of individualized attention from his
                                                                                       8

      colleagues and attempts to help the appellant improve his performance constitute
      a sufficient level of individualized attention for his PIP under the law. 5 C.F.R.
      § 432.104) (as part of the employee’s opportunity to demonstrate acceptable
      performance, the agency shall offer assistance to the employee in improving
      unacceptable performance).
¶15         The appellant also asserts that his performance under the PIP was at least
      minimally satisfactory. A performance standard may consist of more than one
      component, and an employee working under such a standard may be required to
      perform acceptably as to each of these components. Shuman v. Department of the
      Treasury, 23 M.S.P.R. 620, 628 (1984). However, where, as here, an employee is
      removed under 5 U.S.C. § 4303 on the basis of fewer than all the components of a
      performance standard for a critical performance element, the agency must present
      substantial evidence that the employee’s performance warranted an unacceptable
      rating on the performance element as a whole.           Id.   This evidence should
      demonstrate that the appellant knew or should have known the significance of the
      component at issue, in addition to demonstrating that his deficiencies were
      significant enough to justify the action taken. Id. at 629.
¶16         As noted, the appellant achieved the minimally successful level on elements
      numbered 1, 2, and 3 regarding comparing NUCFRG3 to other nuclear physics
      codes. However, the appellant failed to rebut the agency’s evaluation that he did
      not meet the minimally successful level on elements numbered 4 and 5. Agency
      officials assessed that the documents that the appellant provided pursuant to
      element 4 were not well written and were not of the level of quality sufficient for
      publication. They determined that the documents contained little interpretation or
      discussion of results from the data upon which they relied with no real
      quantitative or qualitative conclusions. ID at 25. They also determined that the
      appellant failed to display an understanding of the functionality of the overall
      code or its subroutines.    Id.   They further determined that the appellant was
      unable to respond to the validity of the results for light ions, particularly as it
                                                                                         9

      related to the subroutine called F2VALIDATION, in spite of the fact that the
      developer of the subroutine was available while he was performing the task to
      clarify its validity.   Agency officials expected a researcher of the appellant’s
      experience and grade level to have performed a more rigorous technical
      assessment. Id.
¶17         Regarding element 5, the agency agreed that the appellant met the
      deliverable dates for the journal article.      However, meeting the minimally
      satisfactory level of performance on element 5 required more than meeting
      deliverable dates. Similar to element 4, it required developing a journal article
      with no more than typographical or minor grammatical errors, and specific
      content on each deliverable date. For instance, the first delivery had to include
      what data are available and what the appellant would use for code comparisons as
      well as justification for choosing the selected data and for omitting certain data.
      IAF, Tab 7 at 179. The appellant failed to rebut the agency evidence that, even
      after his colleagues, supervisors, and a subject-matter expert provided feedback,
      the required article that he submitted by the conclusion of the PIP was not clear,
      complete, or thorough, but consisted of unsubstantiated narrative lacking detail
      and technical depth, in other words, it was not of journal quality. Id. at 8. Under
      these circumstances, we agree with the administrative judge that the agency
      presented substantial evidence that the appellant’s performance warranted an
      unacceptable rating on the performance element as a whole.             See Shuman,
      23 M.S.P.R. at 628.
¶18         In his petition for appeal, the appellant also challenged the agency’s denial
      of his within-grade increase (WIGI). IAF, Tab 1. The administrative judge did
      not address the WIGI denial in the initial decision. In his petition for review, the
      appellant does not specifically allege that the administrative judge erred in failing
      to address his denial of WIGI claim; however, he does reference that denial twice.
      PFR File, Tab 1 at 14, 16. As explained below, we find that, to the extent that the
      administrative judge erred in failing to adjudicate the appellant’s appeal of his
                                                                                         10

      WIGI denial, the adjudicatory error was harmless. See Panter v. Department of
      the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error
      that is not prejudicial to a party’s substantive rights provides no basis for reversal
      of an initial decision).
¶19         An employee is entitled to receive a WIGI in his or her rate of basic pay if
      he or she is performing at the “fully successful” level or better at the end of the
      statutory waiting period.    5 U.S.C. § 5335(a) (an employee is entitled to a
      periodic step increase so long as he or she has completed the applicable waiting
      period, has not received an equivalent increase in his or her rate of basic pay
      during the waiting period, and is performing at an acceptable level of
      competence); 5 C.F.R. § 531.404(a) (for purposes of granting or denying a WIGI,
      “acceptable level of competence” means “fully successful” or better). The agency
      must support its decision to withhold a WIGI by substantial evidence.
¶20         If an agency determines that an employee is not performing at an acceptable
      level of competence and withholds a WIGI, then the employee is entitled to “an
      opportunity for reconsideration . . . within his agency under uniform procedures
      prescribed by the Office of Personnel Management.” 5 U.S.C. § 5335(c). “If the
      determination [to withhold the WIGI] is affirmed on reconsideration, the
      employee is entitled to appeal to the Merit Systems Protection Board.” Id. Thus,
      the Board can exercise jurisdiction over an appeal from the withholding of a
      WIGI as an otherwise appealable action under chapter 53 only if the agency has
      affirmed its initial determination upon reconsideration or has unreasonably
      refused to act on a request for reconsideration. Shaishaa v. Department of the
      Army, 58 M.S.P.R. 450, 453 (1992).
¶21         Here, the agency denied the appellant’s WIGI on the same day that it issued
      the decision to remove him for unacceptable performance. IAF, Tab 4 at 18, 23.
      The agency’s final decision to withhold the appellant’s WIGI indicates that the
      appellant sought reconsideration of the denial, and the deciding official found that
      the performance problems described in the initial WIGI denial were fully
                                                                                       11

      supported.   IAF, Tab 4 at 23.        Therefore, he issued a final decision that the
      appellant’s WIGI be withheld. Id. Under these circumstances, the Board has
      jurisdiction over the appellant’s WIGI appeal.       Shaishaa, 58 M.S.P.R. at 453.
      Because the agency has proven that the appellant’s performance was less than
      fully successful in this removal appeal, we find that it also has established by
      substantial evidence that the appellant was not entitled to receive a WIGI in his
      rate of basic pay, and we affirm the agency’s action.
¶22        Finally, the appellant contends that the administrative judge erred in finding
      that he failed to prove his affirmative defense of age discrimination.        In his
      petition for review, he reasserts the arguments that he made below. We agree
      with the administrative judge that the appellant’s evidence is insufficient to meet
      his burden to prove by preponderant evidence that the agency’s action constituted
      discrimination on the basis of age.
¶23        Under the Age Discrimination in Employment Act (ADEA), found
      at 29 U.S.C. § 633a(a), Federal sector employees can prove a violation merely by
      showing that age was a factor in the contested personnel action, even if it was not
      the “but for” cause.   See Savage v. Department of the Army, 122 M.S.P.R. 612,
      ¶ 40 (2015). Given the statute’s sweeping language, it is unnecessary to look for
      a particular quantum of influence, such as substantial evidence, but rather for the
      existence of any influence at all.        Id.   This is so because any amount of
      discrimination tainting a personnel action, even if not substantial, means that the
      action was not free from any discrimination based on age. Wingate v. U.S. Postal
      Service, 118 M.S.P.R. 566, ¶ 7 (2012).
¶24        An appellant may establish a violation of the ADEA using direct evidence
      or any of three types of circumstantial evidence: convincing mosaic, comparator,
      or pretext. Savage, 122 M.S.P.R. 612, ¶ 42. Direct evidence is evidence that can
      be interpreted as an acknowledgment of discriminatory intent. Id. The first kind
      of circumstantial evidence consists of suspicious timing, ambiguous statements
      oral or written, behavior toward or comments directed at other employees in the
                                                                                          12

      protected group, and other bits and pieces from which an inference of
      discriminatory intent might be drawn. Id. Considered together, such bits and
      pieces may compose a convincing mosaic of discrimination. Id. The second kind
      of circumstantial evidence is comparator evidence, consisting of evidence,
      whether or not rigorously statistical, that employees similarly situated to the
      appellant other than in the characteristic on which an agency is forbidden to base
      a difference in treatment received systematically better treatment. Id. The third
      kind consists of evidence that the agency’s stated reason for its action is
      unworthy of belief, a mere pretext for discrimination.           Id.   None of the
      aforementioned types of evidence, i.e., direct, convincing mosaic, comparator, or
      pretext, will be needed in every case. Id. Each type of evidence is sufficient by
      itself to support a judgment for the appellant; or they can be used together. Id.
¶25         When an appellant asserts an affirmative defense of discrimination or
      retaliation under the ADEA, the Board first will inquire whether he has shown by
      preponderant evidence that the prohibited consideration was a motivating factor
      in the contested personnel action.     Savage, 122 M.S.P.R. 612, ¶ 51.       Such a
      showing is sufficient to establish that the agency violated the ADEA, thereby
      committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1).
      Savage, 122 M.S.P.R. 612, ¶ 51. In making an initial showing, an appellant may
      rely on direct evidence or any of the three types of circumstantial evidence
      described above, either alone or in combination. Id. If the appellant meets that
      burden, the Board then will inquire whether the agency has shown by
      preponderant evidence that the action was not based on the prohibited personnel
      practice, i.e., that it still would have taken the contested action in the absence of
      the discriminatory or retaliatory motive. Id. If we find that the agency has made
      that showing, its violation of the ADEA will not require reversal of the action.
      Id.
¶26         Here, the appellant attempted to prove his allegation of age discrimination
      with the first and second type of circumstantial evidence described above, i.e.,
                                                                                      13

      ambiguous statements and comparator evidence. The appellant asserts that his
      supervisor made one or two comments to the appellant suggesting that he retire.
      IAF, Tab 1 at 6.     He claims that, since January 1, 2009, 11 of 12 proposed
      removals were issued to employees who were over 50 years of age, and all of
      those over 50 were removed. He also claims that this evidence shows that the
      removals for conduct and performance of employees over the age of 50 are
      disproportionate. IAF, Tab 16.
¶27         We agree with the administrative judge that the appellant’s evidence does
      not constitute preponderant evidence that his removal constituted discrimination
      on the basis of his age. As she found, the appellant’s claim that his supervisor
      suggested that the appellant retire, even if true, does not show that the statement
      was due to the appellant’s age, especially given the supervisor’s denial that he
      made such a statement, the evidence that other older employees who continue
      working within the unit are past the eligibility age to retire, and the detailed
      performance-related reasons for the appellant’s removal. ID at 20.     As she also
      found, the examples of removals submitted by the appellant each cite specific
      reasons for removal that are independent of age, and the appellant’s argument
      does not include other relevant information to support his assertion, such as the
      number of employees over 50 at the agency as a whole who were not presented
      with notices of removal. ID at 20-21. Further, a newspaper article submitted by
      the appellant stating that the agency is seeking younger employees suggests that
      its workforce is disproportionately older. ID at 19. Therefore, the Board will not
      disturb an administrative judge’s findings when, as here, she considered the
      evidence as a whole and drew appropriate inferences. See Crosby v. U.S. Postal
      Service, 74 M.S.P.R. 98, 105–06 (1997); Broughton v. Department of Health &
      Human Services, 33 M.S.P.R. 357, 359 (1987).         Accordingly, we affirm the
      administrative judge’s initial decision.
                                                                                14

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your discrimination
claims, you may file a civil action against the agency on both your discrimination
claims and your other claims in an appropriate U.S. district court. See 5 U.S.C.
§ 7703(b)(2). You must file your civil action with the district court no later than
30 calendar days after your receipt of this order. If you have a representative in
this case, and your representative receives this order before you do, then you
                                                                                15

must file with the district court no later than 30 calendar days after receipt by
your representative. If you choose to file, be very careful to file on time. If the
action involves a claim of discrimination based on race, color, religion, sex,
national origin, or a disabling condition, you may be entitled to representation by
a court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
