Woodrow F.,1 Petitioner,v.Jay Clayton, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Oct 11, 2018

0420170028 (E.E.O.C. Oct. 11, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Woodrow F.,1
Petitioner,

v.

Jay Clayton,
Chair,
Securities and Exchange Commission,
Agency.

Petition No. 0420170028
Request No. 0520170165
Appeal No. 0120162241
Agency No. 00008-2016

DECISION ON A PETITION FOR CLARIFICATION

On September 13, 2017, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed a petition for clarification to examine the enforcement of an order set forth in EEOC
Appeal No. 0120162241 (December 14, 2016) and reaffirmed in EEOC Request No. 0520170165
(April 20, 2017). The Commission accepts this petition for clarification pursuant to 29 C.F.R.
§ 1614.503. Petitioner alleged that the Agency failed to fully comply with the Commission’s order
when it partially dismissed the formal complaint Complainant filed on remand.

BACKGROUND

At the time of events giving rise to this complaint, Petitioner worked as the Associate Regional
Director (Enforcement) at an Agency Regional Office. Petitioner initiated contact with an Agency
EEO counselor, raising potential claims of race, sex, and age-based discrimination. Before a
formal EEO complaint was filed, on January 12, 2016, Petitioner and the Agency entered into a
settlement agreement resolving those claims and releasing the Agency from liability to Petitioner.

In May 2016, Petitioner claimed that the Agency breached the settlement agreement. The Agency,
in a final decision dated June 10, 2016, determined that it had not breached the settlement
agreement.

1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when
the decision is published to non-parties and the Commission’s website.
0420170028

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On appeal to the Commission, we found the Agency had not breached the settlement agreement,
but agreed with Petitioner’s contention that his consent to the settlement agreement had been
obtained in violation of the Older Workers’ Benefit Protection Act (OWBPA). For that reason,
we remanded the matter, in part, and ordered the Agency to resume processing of Petitioner’s age-
based claims only. EEOC Appeal No. 0120162241 (December 14, 2016).2 We reaffirmed that
order in response to the Agency’s Request for Reconsideration. EEOC Request No. 0520170165
(April 20, 2017).

Following our remand, the EEO counseling process resumed and when the matter was not
resolved, Petitioner filed a formal EEO complaint asserting violations of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Initially, the Agency
accepted for investigation the entire complaint but, in a letter dated March 31, 2017, it partially
rescinded that acceptance, dismissing a claim of constructive demotion on two alternative grounds:
for failure to state a claim and for not having been raised with an EEO counselor. So far as the
record reflects, the Agency has yet to issue a final agency decision on the accepted issues of the
complaint.

On April 24, 2017, Petitioner filed a document captioned “Complainant’s Motion for
Clarification” by which he seeks our explanation of “the claims that are at issue and the remedies
available to him” following our decision in EEOC Appeal No. 0120162241. In fact, however,
Petitioner is not seeking to have our remand order enforced or clarified. The Agency has complied
with that order by resuming processing of the case as we directed. See, EEOC letter, dated March
20, 2017, terminating compliance monitoring. In reality, Petitioner is attempting to reverse the
Agency’s March 31, 2017 decision to partially dismiss the remanded claims. Such interlocutory
appeals from partial dismissals are not permitted under our regulations.

EEOC Regulation 29 C.F.R. § 1614.107(b) provides, in part, that:

[w]here the agency believes that some but not all of the claims in a complaint should
be dismissed . . . the agency shall notify the complainant in writing of its
determination, the rationale for that determination, and that those claims will not
be investigated. . .. A determination under this paragraph is reviewable by an
administrative judge if a hearing is requested on the remainder of the complaint,
but is not appealable until final action is taken on the remainder of the
complaint.

(Emphasis added.)

Consistent with that regulation, the Commission considers appeals from final decisions only and
does not permit interlocutory appeals.

2 The matter was assigned to a Compliance Officer and docketed as Compliance No. 0620170140
on December 14, 2016.
0420170028

3
See Cecile T. v. Environmental Protection Agency, EEOC Appeal No. 0120161511 (Dec. 20,
2016); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0720130037 (Mar. 9, 2015)
(Commission's regulations do not provide for interlocutory appeals). Complainant may not appeal
the Agency’s partial dismissal of his claims until the Agency issues a final Agency decision on the
merits of the accepted issues in his age complaint. At that time, Complainant is free to file an
appeal and argue to the Commission that the issue was improperly dismissed.

CONCLUSION

Based on a thorough review of the instant record, the petition for enforcement is DENIED.

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.

0420170028

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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

October 11, 2018___
Date