0120150776
02-09-2017
Jospeh D.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jospeh D.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120150776
Agency No. IRS-14-0651-F
DECISION
On December 16, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 13, 2014, dismissing his complaint of unlawful employment discrimination in violation of 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 worked as a Temporary General Engineer, Technical Specialist, GS-14 at the Agency's Large Business & International (LB&I) Pre-Filing & Technical Guidance (PFTG) office in Englewood, Colorado.
On September 25, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his age (69) when:
On June 26, 2014, he was informed by his first line supervisor (S1) that effective March 7, 2015, his temporary position would end and he would have to return to his permanent position of General Engineer, GS-13, in Town & Country, Missouri.
In a June 26, 2014 email response to Complainant's inquiry on remaining in Englewood, Colorado after the end of his temporary position in March 2015, S1 wrote that as they discussed in February 2013, he would return to his permanent position of Engineer, GS-13, in Town and Country, Missouri no later than March 7, 2015, the end of his temporary position.
The Agency dismissed the complaint for failure to timely initiate equal employment opportunity (EEO) counseling. It recounted that on February 14, 2013, S1 confirmed to Complainant that he would return to Town & Country, Missouri no later than the expiration of his Temporary General Engineer, Technical Specialist, GS-14 position (Complainant indicated he was told this was in March 2015). 2 The Agency found that the earliest Complainant initiated EEO counseling with intent to file a complaint on July 31, 2014, beyond the 45 calendar day time limit.
The Agency also dismissed the complaint for alleging a proposed action and failure to state a claim. It reasoned that while Complainant was notified that he would return to his permanent duty station of Town & Country, Missouri when his temporary position expired in March 2015, no employment action had yet been taken so his complaint was premature.
On appeal, Complainant argues that the 45 day time limit for him to initiate EEO counseling started to run on June 26, 2014, so he timely initiated EEO counseling. He argues that prior to this he was not given a definitive date on his required return to Town and Country, Missouri. The record reflects that in February 2013, when Complainant was notified he must return no later than March 2015, he was also told it would be no later than the above date or the end of the Issue Practice Group (IPG) pilot (which was somehow connected to Complainant and/or the temporary position), whichever was first. After Complainant learned on June 18, 2014, that the pilot was extended to June 2015, he asked S1 if this meant he was required to return to Town and Country Missouri after his temporary position expired on March 7, 2015, and on June 26, 2014, S1 replied yes. Complainant argues that until June 26, 2014, the date of his required return was uncertain. He also writes that the action to return him to Town & Country, Missouri was not merely proposed - S1 already contacted Complainant's last permanent manager there advising he would return effective March 8, 2015.
In opposition to the appeal, the Agency argues that the FAD was correctly decided.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) requires agencies to dismiss an entire complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the proposal or preliminary step is retaliatory. We agree with Complainant's argument that his complaint does not concern a proposed action - the Agency informed Complainant in February 2013, of its decision that he must return to his permanent position in Town & Country, Missouri no later than March 2015. Accordingly, this was not a proposed action, and Complainant's complaint states a claim.
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). We agree with the Agency that Complainant knew by February 2013 that it decided he was required to return to Town & Country, Missouri no later than March 2015. Complainant's ongoing unsuccessful efforts to get the Agency to change its decision or find other ways to continue working for the Agency in Englewood, Colorado does not change this. Nevertheless, we find that Complainant timely initiated EEO counseling since he did so prior to the effective date of the personnel action, and the Agency submits no information on appeal that it changed its decision or that Complainant found some other way to continue working for the Agency in Englewood, Colorado, that was fully satisfactory to him.
Accordingly, the FAD is REVERSED.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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
February 9, 2017
__________________
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 Subsequently, pointing to a notification of personnel action effective March 9, 2014 Complainant wrote he received that indicated his temporary promotion would not exceed March 7, 2015, the Agency argued that Complainant knew by receipt thereof the exact date his temporary position was ending.
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