[Redacted], Erich A., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jun 22, 2022

Appeal No. 2022001584 (E.E.O.C. Jun. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erich A.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2022001584 Agency No. FBI-2021-00214 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 9, 2021, dismissing a formal complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND On September 2, 2021, Complainant filed a formal EEO complaint alleging he was discriminated against, and subjected to sexual harassment, based on race (White), sex, age (YOB: 1985) and disability. His complaint does not, however, identify any action(s) that constitute either discrimination or sexual harassment. Instead, in the section of the complaint asking Complainant to explain how he was discriminated against. On the complaint form, Complainant only stated, “FBI [d]iscriminated my [sic] how [I] talk and my age.” Complainant’s pre-complaint EEO counseling does not shed further light on his claims. A review of the EEO Counselor’s Report of Counseling indicated that Complainant was scheduled for an initial interview on August 25, 2021. However, Complainant did not appear on that 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. 2022001584 2 The report also indicated that the interview was rescheduled for August 31, 2021, but Complainant again failed to make himself available on that day. Thereafter, the EEO Counselor issued Complainant the Notice of Right to File a formal complaint on August 31, 2021, without any counseling. Because the complaint did not identify the specific action(s) Complainant was alleging to be discriminatory or harassing, on September 21, 2021, the Agency sent him a request for information. The request asked, among other things, for Complainant to identify: the action(s) he was alleging constituted discrimination; the action(s) he was alleging constituted sexual harassment; and the nature of his alleged disability. In his response dated September 21, 2021, Complainant merely stated, “Hi they discrimination [sic] against me of [sic] my disability.” In its November 9, 2021 final decision, the Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency determined that Complainant was not a federal employee or applicant for federal employment and, therefore, lacked standing to file an EEO complaint. The Agency further determined that even if Complainant were an Agency employee, or an applicant for Agency employment, the matter as articulated in his formal complaint is insufficient to establish a justiciable claim. The record reflects that Complainant was repeatedly requested to identify the actions of alleged discrimination but provided only a very generalized statement of purported discrimination. The instant appeal followed.2 ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Thus, a complaint may be dismissed for failure to state a claim when the complainant is not an employee or applicant for employment with the federal government. Here, the record reflects that Complainant was neither a current nor former FBI employee and therefore lacks standing to pursue the instant formal complaint. In addition, there was no indication that Complainant have ever been an applicant for FBI employment. Therefore, he lacks standing to file a complaint in the 29 C.F.R. Part 1614 administrative EEO complaint process. 2 Complainant initiated his appeal on EEOC’s public portal by sending in a copy of an Agreement to Participate in Alternative Dispute Resolution form. He did not provide further argument concerning the content of his complaint. 2022001584 3 Moreover, even if he had standing, Complainant did not identify the specific actions he was alleging to be discriminatory or harassing, Therefore, the Agency correctly dismissed the matter for failure to state a claim.3 CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 3 We note, moreover, that following issuance of the Agency’s dismissal decision, Complainant requested a hearing before an EEOC Administrative Judge (AJ), and the request was docketed under Hearing No. 520-2022-00094X. However, the assigned AJ properly dismissed the hearing request because it was too late, filed after the issuance of the instant final decision. 2022001584 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 June 22, 2022 Date