closed0120123024
12-20-2012
Michael Murphy, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael Murphy,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123024
Agency No. 2004-0116-2012102161
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 15, 2012, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as an IT Specialist at the Agency's facility in Washington, D.C. On April 21, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity.
The Agency dismissed Complainant's complaint for failure to state a claim. The Agency found that Complainant withdrew his request to file a formal complaint through an email dated March 16, 2012. The Agency reasoned that it incorrectly issued Complainant a Notice of Right to File a Formal Complaint because "the case was closed as of March 16, 2012."
The instant appeal followed.
ANALYSIS AND FINDINGS
The Agency improperly dismissed Complainant's complaint. We acknowledge that the record contains an email from Complainant dated March 16, 2012 to Complainant's assigned EEO Counselor for the instant matter. Therein, Complainant states, in pertinent part, that "I am withdrawing the EEO complaints we discussed yesterday regarding my performance appraisal and the retaliation I experienced as a result of my original EEO complaints. I intend to continue forward in the process with EEOC for each of my original complaints that I have requested a hearing with the AJ for, and are already in the formal complaint stage."
The record, however, further reflects that Complainant's March 16, 2012 email was not viewed by the Agency as a final withdrawal and the Agency continued to process Complainant's claims. By email dated March 21, 2012, Complainant's EEO Counselor stated "[p]lease sign the attached Notice of Withdrawal, if you do not want to continue with the process. Once, you sign the withdrawal your complaint will be closed. However, we do need your signature." Complainant responded by email on March 21, 2012 and stated that he needed additional "guidance/counseling" before he could make a final decision with respect to the withdrawal.
The Counselor's Report reflects that the Agency continued to process Complainant's claims. The EEO Counselor's Report provides that while Complainant's March 16, 2012 email indicated that he was to withdraw his claims, Complainant did not sign the Notice of Withdrawal letter sent him on March 21, 2012. The Counselor's Report further provides that Complainant was subsequently sent a Notice of Right to File a Discrimination Complaint. The record reflects that Complainant filed a formal complaint on April 21, 2012.
Based on the foregoing, we do not find, and the Agency has not shown, that Complainant withdrew his informal complaint. See Baker v. Dep't of State, EEOC Appeal No. 0120082848 (Oct. 2, 2008) (reversing Agency dismissal where Complainant initially sent EEO Counselor an email pertaining to not pursuing the EEO process; however, the Agency continued to process the matter and subsequently issued Complainant a Notice of Right to File a Formal Complaint).
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and we REMAND this matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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 (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 20, 2012
Date
2
0120123024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2 0120123024