0120142932
02-17-1015
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120142932
Hearing No. 480-2012-00573X
Agency No. 11R9FASAR27
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision, dated July 23, 2014, dismissing his complaint of unlawful employment discrimination alleging violations 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.
At the time of events giving rise to this complaint, Complainant worked as a Transportation Operations Specialist the Agency's facility in Monterey Park, California.
Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Mexican), color (Brown), age (56) and reprisal when: effective October 1, 2011, he was reassigned to another position; and on August 31, 2011, he was directed to return his government vehicle.
The claims were investigated and Complainant requested a hearing before an EEOC Administrative Judge (AJ). At this point, the record establishes that Complainant was represented by an attorney. On June 25, 2014, a "mediation conference call" was held where Complainant's attorney indicated that Complainant wished to withdraw his complaint. This was followed by an email on the same date from the attorney to the AJ, stating that she was confirming the conversation "of earlier this afternoon" that Complainant "will not be moving forward with the above captioned matter in the administrative forum." The attorney indicated that she would be filing a civil action on the matter in court. It is undisputed that Complainant was not on the conference call during these events.
On June 27, 2014, the AJ issued an order of dismissal because Complainant requested to withdraw from the administrative complaint process based on his intention to pursue the matter in district court. In its final order dated July 23, 2014, the Agency adopted the AJ's dismissal.
The instant appeal followed. In his appeal, Complainant states that he left the discussion before his attorney indicated they were withdrawing his complaint from adjudication in the administrative process, and did not know it had been withdrawn until he got the Agency's final order dismissing his complaint. He states he is no longer represented by an attorney.
We find that the record clearly establishes that Complainant's attorney, who at the time was representing Complainant, specifically withdrew his complaint from the EEO administrative process. While Complainant may have later terminated his relationship with the attorney, at the time of the withdrawal it is clear that the attorney represented Complainant. Further, there is nothing in the file indicating that Complainant informed his attorney or the AJ that he did not want to withdraw his complaint or did not intend to go to court. As such, we find that Complainant withdrew his complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 11, 1015
__________________
Date
1 To the extent Complainant is requesting that EEOC appoint him with a new attorney, he is advised that he needs to direct such a request to the court where he has filed his civil action.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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