Victor S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 19, 2020

2020004468 (E.E.O.C. Nov. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Victor S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004468 Agency No. AREUWIES19OCT04375 DISMISSAL OF APPEAL Complainant filed an appeal on August 6, 2020, with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s partial acceptance/partial dismissals of his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Plans and Contingency Exercise Specialist, GS-301-13, at the Agency’s U.S in Wiesbaden, Germany. On January 28, 2020, Complainant filed a formal complaint alleging he was subjected to discrimination and a hostile work environment based on disability (post-traumatic stress disorder (PTSD)) and reprisal for prior protected EEO activity as evidenced by numerous incidents occurring August 2018 through January 2020. The Agency’s February 12, 2020 Partial Acceptance/Partial Dismissal letter dismissed several claims for failure to state a claim. On June 26, 2020, and June 29, 2020, Complainant raised additional claims to amend his complaint. On July 7, 2020, the Agency dismissed two additional claims for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). On appeal, Complainant asserts the dismissal of the claims was erroneous and that the dismissed claim submitted on June 29, 2020, was improperly characterized. 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. 2020004468 2 EEOC Regulation 29 C.F.R. § 1614.107(b) provides that where the agency believes that some but not all of the claims in a complaint should be dismissed, the agency shall notify the complainant in writing of its determination, the rationale for that determination, and that those claims will not be investigated. A determination under this paragraph is reviewable by an Administrative Judge if a hearing is requested on the remainder of the complaint but is not appealable until final action is taken on the remainder of the complaint. Upon review, the Commission finds that the appeal is premature. The Agency dismissed some of the claims in the complaint and accepted the majority of the alleged claims for an investigation. In the February 12, 2020 partial dismissal letter, the Agency advised Complainant that the dismissed claims would not be investigated and that he could not appeal the dismissed claims until the Agency took final action on the remainder of the complaint. The Agency’s July 7, 2020 letter dismissing the two claims for untimely EEO counselor contact, however, erroneously stated that Complainant could appeal the dismissal of the two claims within 30 days of receiving the letter. There is no record that the Agency has issued a final decision on the remainder of the complaint. Accordingly, Complainant's appeal is premature. Complainant is advised that he may file a new appeal when the Agency takes final action on his complaint. CONCLUSION Accordingly, Complainant's August 6, 2020, appeal is hereby DISMISSED. See 29 C.F.R. § 1614.403(c). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020004468 3 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, 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. 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. 2020004468 4 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 November 19, 2020 Date