Salvatore K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

2019003004 (E.E.O.C. Aug. 27, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Salvatore K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 2019003004

Agency No. OCFO-2019-00422

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated April 2, 2019, dismissing a formal complaint
of unlawful 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 of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

During the period at issue, Complainant worked as a Computer Assistant (Customer Support), GS-
7, at the Agency’s Information Technology Service Division in New Orleans, Louisiana.

The record reflects that on December 17, 2018, Complainant initiated EEO Counselor contact
concerning a 2018 Performance Evaluation, and alleged discriminatory comments made against
him.

On March 6, 2019, the Agency issued Complainant a Notice of Right to File a Formal Complaint
(NOFI). On March 21, 2019, Complainant’s representative filed the instant formal complaint, via
fax transmission, on Complainant’s behalf.

On April 3, 2019, the Agency issued the instant final decision dismissing the complaint pursuant
to 29 C.F.R. §1614.107(a)(2).

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.
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The Agency determined that the claims in the formal complaint were not actually brought to the
attention of an EEO Counselor and were not like or related to matters for which Complainant
sought EEO counseling.2

Complainant filed the instant appeal on April 24, 2019.

However, during the pendency of this appeal, the record indicates that, by letter dated June 5, 2019,
the Agency informed Complainant’s representative that Complainant was being referred to EEO
counseling. In a footnote to the June 5, 2019 letter, the Agency indicated that the June 5 letter
“supersedes and rescinds the April 3, 2019 Final Agency Decision [emphasis added].” Thus, it
appears that the Agency has rescinded its April 3, 2019 dismissal, and is again providing
Complainant an additional opportunity to pursue EEO counseling.

Given the Agency’s rescission of the Agency’s final decision that is the subject matter of the instant
appeal, we REMAND this matter to the Agency for further processing in accordance with the
ORDER below.

ORDER

To the extent that the Agency has not yet done so, the Agency shall provide Complainant EEO
counseling. Within thirty (30) calendar days of the date this decision was issued, the Agency
shall notify Complainant of his right to EEO counseling. EEO counseling shall not exceed thirty
(30) calendar days after the Agency notifies Complainant of his right to EEO Counseling, unless
Complainant and the Agency agree in writing to extend EEO counseling for an additional period
of no more than sixty (60) days.

The Agency shall send a copy of its notice of Complainant’s right to EEO counseling and a copy
of its notice of Complainant's right to file a formal complaint to EEOC's Compliance Officer listed
below.

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.

2 The Agency further advised Complainant that if he still wanted to pursue the matters first brought
to the attention of an EEO Counselor in December 2018, he should contact a named EEO
Counselor. The Agency concluded by indicated that any issue brought to the attention of an EEO
Counselor within 45 calendar days prior to December 17, 2018, would be considered timely
counseled.

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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
Complainant and his representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a).
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, 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 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 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.

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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

August 27, 2019
Date