EEOC Appeal No. 0120171144
04-21-2017
Joey B. v. Dep't of the Army
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joey B.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120171144
Agency No. ARREDSTON16SEP03678
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 27, 2016, dismissing his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Career Management Specialist at the Agency's facility in Redstone Arsenal, Alabama.
On November 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, sex, religion, age and/or reprisal for prior EEO activity. The formal complaint form in the record indicates "[s]ee attached description and details of retaliation to include 20 exhibits as attachments" for the explanation of the claim(s). However, the referenced exhibits and description were not in the record forwarded to EEOC by the Agency.2
On December 27, 2016, the Agency issued a final decision dismissing the complaint as being identical to a previously filed EEO complaint. In its dismissal decision, the Agency's characterization of the claims in the current complaint is very unclear, but it asserts Complainant was concerned about: (1) performance standards for several named employees for the 2015, 2016 and 2017 rating cycles, and (2) when from September 2015 to present, he was not permitted to hire behind an employee who was reassigned. It also appears from the record that Complainant may have additionally raised a claim concerning not being selected for a temporary promotion in November 2016, but the status of that claim is also unclear. In sum, the record before us, lacking the complete formal complaint, makes it impossible for us to determine the claims.
We also note that while the Agency asserted in its dismissal decision that these claims were identical to a prior complaint, there is no copy of the prior complaint in the record. Therefore, even if the claims in the instant complaint were clear, we have no way of comparing them to the asserted prior complaint filed by Complainant.
In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). For the reasons explained above, we conclude that the Agency failed to support its dismissal decision and it should be reversed.
However, by letter dated April 5, 2017, the Agency informed the Commission that it was rescinding its dismissal decision, and asked that the appeal be dismissed. At the same time, the Agency stated that, despite the rescission, it "will not be accepting for investigation [the] formal complaint" [emphasis added]. Rather, the Agency directed the Complainant to "file a motion to amend with the Administrative Judge [apparently the Administrative Judge (AJ) handling Complainant's prior complaint] to include these additional claims." The Agency stated that the AJ will assume "full responsibility for the record" and "may decide to dismiss some or all of [the] claims."
We disagree with the Agency. The Agency may not avoid its responsibility to process a properly filed EEO complaint by forcing Complainant to seek to amend another complaint that is pending before an EEOC AJ. As well, the Agency may not rescind its decision dismissing the complaint, and then state it will not process ("investigate") the complaint.
The record before us is woefully inadequate and we cannot determine the claims raised by Complainant. Because the Agency rescinded its dismissal decision, it must process the complaint and we are remanding the complaint for processing. Upon remand, the Agency must clarify the claims to be investigated in the instant complaint.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded complaint within thirty (30) calendar days of the date this decision was issued. Prior to the start of the investigation, the Agency shall work with Complainant to clarify his claims. 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
April 21, 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 While Complainant included some attachments with his appeal, it cannot be determined if these are among those submitted with his formal complaint.
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