0120161078
03-10-2016
Buck S.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force (National Guard Bureau), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Buck S.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 0120161078
Agency No. "TBD"2
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission concerning 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.
At this juncture, the Commission does not have a complaint file. It appears that Complainant is appealing a December 9, 2015 decision issued by the State of Michigan, Department of Military and Veterans Affairs. The decision, entitled "Notice of Dismissal of the Discrimination Complaint of [Complainant], Michigan Air National Guard, Secretary of the Air Force, Debra Lee James, NGB Case No. TBD".
The decision notes that Complainant alleged he was discriminated against when he was asked questions about his age in July 2014 when he was applying for a superintendent position. Complainant also alleged that, in February 2015, he was discriminated against based on his gender (male) when he was not selected for the position of shop superintendent.
The decision indicated that these claims were dismissed "subject to review and approval of the dismissal by the National Guard Bureau." As such, it appears that the decision Complainant received was not a final agency decision. Rather, it was a decision issued by the State National Guard that was to be forwarded to the Headquarters National Guard Bureau EEO office for issuance of the final decision. Further, the decision did not give Complainant any appeal rights to the Commission.
Accordingly, at this juncture, Complainant's appeal is premature and is DISMISSED. Nonetheless, given that the decision indicates Complainant filed his formal complaint on August 12, 2015, we are ordering the Agency to process the matter as set forth below.
ORDER
If the Agency (National Guard Bureau) decides to procedurally dismiss the matter, it should issue a final decision, pursuant to 29 C.F.R. �� 1614.107 and 1614.110(b), on the complaint with sixty (60) days of the date this decision becomes final. If the complaint is accepted for further processing, the Agency shall complete the investigation within 120 days of the date this decision becomes final, and provide Complainant with the right to request a hearing or a final Agency decision.
The Agency shall provide the EEOC Compliance Officer with either a copy of the final decision dismissing the complaint or the letter of acceptance for investigation.
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 (M0815)
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, 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 (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
March 10, 2016
__________________
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 The decision before us did not have an Agency number. Instead, it stated, "TBD."
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