0120181803
08-23-2018
McKinley P.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
McKinley P.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181803
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding his claim 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.
At the time of events giving rise to this complaint, Complainant's representative (Representative) contacted the Agency's EEO District Manager via email beginning in February 2018. The Representative sought to raise Complainant's claim that he had been subjected to retaliatory harassment following the resolution of his prior EEO complaint pursuant to a settlement agreement in 2016.
The EEO District Manager indicated that Complainant needed to contact a specific EEO Counselor (Counselor 1). However, the Representative requested an alternate Counselor noting that Counselor 1 contacted Complainant without the Representative. The EEO District Manager denied Complainant's request and stated that Complainant must contact Counselor 1. Further, he indicated that the EEO Office would no longer communicate with the Representative until Complainant initiates contact with Counselor 1 and provides the Agency in writing that the Representative is in fact Complainant's representative of record. The EEO District Manager stated that, for purposes of timeliness, Complainant's date of contact would not be considered until he contacts Counselor 1. Thereafter, the Representative indicated that Complainant's file was closed.
As a result of the actions by the EEO District Manager, the Representative, on Complainant's behalf, filed the instant appeal.
The Agency responded to the appeal by providing the Commission a copy of Complainant's prior EEO complaint. The Agency indicated that Complainant did not contact the Office of Resolution Management (ORM) to initiate a complaint. However, the Representative contacted ORM and was told that if Complainant wanted to pursue his complaint, Complainant himself would have to make contact and designate the Representative at that time. When Complainant failed to make contact personally, the Agency closed the inquiry.
EEOC Regulation 29 C.F.R. �1614.401(a) requires that an appeal cannot be filed by a complainant until the Agency issues a "final action or dismissal of a complaint." We find that there is no final decision issued by the Agency. Therefore, we find that Complainant's appeal is premature. See Cortwright v. Dep't of the Army, EEOC Appeal No. 01A11751 (July 15, 2003)
However, we find that the Agency has improperly closed the instant matter. Complainant indicated that he and the Representative contacted the Agency's EEO Office alleging a claim of retaliatory harassment following the resolution of his prior EEO complaint. Complainant noted that Counselor 1 was made aware that Complainant was represented by the Representative. Despite the notice of representation, Counselor 1 spoke directly to Complainant without the Representative. As such, Complainant asked for a new counselor. Rather than granting such a request, the Agency denied the request and required Complainant and Complainant alone pursue the matter and the Agency closed the inquiry. We find that the Agency should process Complainant's request for a new counselor and provide Complainant with EEO Counseling with the Representative he has chosen to be present with him during the counseling process. We also remind Complainant that he must comply with the Agency's requests including providing the Agency with a notice of representation. Therefore, we find that the Agency erred in closing the matter. As such, we order the Agency to continue processing Complainant's informal complaint.
CONCLUSION
As such, Complainant's appeal is DISMISSED as premature. Nonetheless, we REMAND the matter for further processing as set forth in the Order below.
ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall process the remanded informal complaint in accordance with 29 C.F.R. � 1614.105 et seq. See also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chapter 2 (Aug. 5, 2015).
If the informal process fails to resolve the matter, the Agency shall provide Complainant with a Notice of Right to File a Formal Complaint pursuant to 29 C.F.R. �1614.106. If the Agency dismisses the complaint pursuant to 29 C.F.R. � 1614.107(a), the Agency shall issue Complainant a final decision.2 See EEO MD-110 at 5-16. If the Agency accepts the matter for further processing in accordance with 29 C.F.R. � 1614.108, the Agency shall issue its letter of acknowledgement
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. If Complainant files a formal complaint, the Agency shall provide a copy of the Agency's letter of acknowledgment or its final decision to Complainant will be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and � 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
August 23, 2018
__________________
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 We remind the Agency that it is well settled that Complainant satisfies the criterion of EEO Counselor contact by contacting an agency official logically connected with the EEO process and by exhibiting an intent to begin the EEO process. See Floyd v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).
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