0120150662
02-17-2017
Wilburn R.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilburn R.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120150662
Agency No. P-2013-01226
DECISION
Complainant filed a timely appeal with this Commission from the Agency's letter dated November 13, 2014, denying his request for EEO Counseling regarding his 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 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 had been employed with the Agency until he resigned pursuant a mandatory retirement on April 30, 2013. Subsequently, Complainant applied for several positions including a Human Resources Specialists at the Agency's facility in Washington, D.C. However, Agency did not select him for any of the positions for which he applied.
Complainant indicated that he applied for the Human Resources Specialist position on September 3, 2013. After he was informed of the Agency's decision not to select him, on September 25, 2013, Complainant contacted the EEO Counselor alleging discrimination. Complainant believed that he was eligible for the positions in question through the Agency's Reassignment Eligible rights. During the informal counseling, Complainant indicated that he believed the matter constituted a "mixed case." To this end, he informed the EEO Counselor by email dated October 17, 2013, that he may also pursue the matter before the Merit Systems Protection Board (MSPB).
When the matter was not resolved informally, on November 12, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), age (57), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when he was not selected for various positions for which he applied. Complainant withdrew his EEO complaint on November 19, 2013, in order to pursue the matter through the MSPB appeal process.
On November 24, 2013, Complainant also filed an appeal with the MSPB regarding the same positions for which he applied and for which the Agency failed to select him. On February 26, 2014, the MSPB Administrative Judge (AJ) issued an Initial Decision dismissing the matter for lack of Board jurisdiction. Complainant appealed the Initial Decision to the Board. On October 21, 2014, the Board denied Complainant's appeal and affirmed the Initial Decision.
On October 22, 2014, Complainant contacted the EEO Counselor to request EEO Counseling. In response to Complainant's contact of the EEO Counselor, the Agency issued Complainant a letter dated November 13, 2014. The Agency indicated in the letter that once Complainant withdrew his complaint, his prior EEO complaint was permanently closed.
Complainant filed an appeal from the Agency's letter. Complainant asserted on appeal that his request for EEO Counseling on October 22, 2014, was denied by the Agency's letter. He indicated that he had informed the EEO Counselor in 2013 of his concern that the matter might be a "mixed case" but the EEO Counselor failed to provide him any information regarding the "mixed case" complaint process. Once he received the final order from the MSPB denying jurisdiction, he sought to pursue his claims as an EEO complaint which is now no longer mixed.
By letter dated December 16, 2014, the Commission informed the Agency of the Complainant's appeal. The Agency failed to respond to Complainant's appeal.
ANALYSIS AND FINDINGS
Upon review of the record, we agree with the Agency that the prior EEO complaint, namely Agency No. BOP-2013-01226, was properly closed when Complainant withdrew the matter in order to pursue his claim before the MSPB. However, since the withdrawal, the MSPB has denied jurisdiction on Complainant's appeal. As such, Complainant returned to the EEO Counselor at the Agency to raise his claim of discrimination when he was not selected for a number of positions in violation of Title VII and the ADEA. As such, Complainant's contact on October 22, 2014, was a new request for pre-complaint counseling. Accordingly, we find that the Agency's letter dated November 13, 2014, constituted a denial of Complainant's request for pre-compliant counseling.
Prior to a request for a hearing in on an EEO complaint, the Agency may dismiss an EEO complaint on grounds set forth in 29 C.F.R. � 1614.107(a). However, in this case, the Agency did not permit Complainant to proceed to through the pre-complaint process and dismissed the matter prior to Complainant being provided with a right to file a formal complaint. We find that the Agency's action was in error. The Agency is required to provide Complainant with EEO counseling and issue a notice of right to file a formal complaint if the matter cannot be resolved through counseling. It cannot preclude Complainant from filing his formal complaint, and can only dismiss a matter, pursuant to 29 C.F.R. � 1614.107(a), once a formal complaint has been filed.
Moreover, when an agency dismisses a complaint under 29 C.F.R. � 1614.107(a), the Agency must issue a final decision. The final decision consists of the rationale for dismissing any claims in the complaint. The final decision shall contain notice of the right to appeal the final action to the Commission, the right to file a civil action in a U.S. District Court, the name of the proper defendant in any such lawsuit, and the applicable time limits for appeals and lawsuits, It should also include a copy of EEOC Form 573, Notice of Appeal/Petition, attached to the final decision/determination. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 5-34 (Aug. 5, 2015). Here, the Agency's dismissal of the pre-complaint matter failed to adequately meet these criteria for a proper final decision.
As the Agency has improperly processed the matter at hand and failed to provide Complainant the opportunity to file a formal complaint, we find that there was no appropriate dismissal to address. Therefore, we shall remand the matter for proper processing.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal of the matter at hand and REMAND the matter for further processing in accordance with the ORDER below.
ORDER
The Agency shall process Complainant's pre-complaint contact within 15 calendar days of the date of this decision. If within 30 calendar days the matter is not resolved informally and the parties have not agreed to an extension, the Agency shall provide Complainant a notice of right to file a formal complaint.
A copy of the Agency's EEO counseling report and notice of right to file a formal complaint (unless the matter has been resolved) 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 17, 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.
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