Lawrence V. Wilder, Sr.,
Complainant,

v. 

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.

Appeal No. 0120150096


DECISION

The record reflects the following chronology of events.  In August 2014, Complainant contacted the Agency's EEO office via telephone and wanted to file an EEO complaint.  In an email to Complainant dated September 4, 2014, an Agency EEO Specialist advised him to complete the attached pre-complaint paperwork and that upon receipt of the completed paperwork an EEO Counselor would be assigned to conduct EEO Counseling.  On September 8, 2014, the Agency EEO Specialist acknowledged receipt of Complainant's pre-complaint paperwork.

In a letter to Complainant, dated September 16, 2014, the Agency's Assistant Director of EEO (Assistant Director) informed Complainant that the Agency would not continue to process Complainant's EEO claims.  Specifically, the Assistant Director asserted: "[b]ased on a thorough review of [his] pre-complaint, it appears [Complainant] does not make any allegations that [the Agency] took any employment action against [him] that affected a term or condition of [his] employment.  According to [his] pre-complaint, no employer-employee relationship exists or has existed between [him] and [the Agency].  Therefore, we are not the correct EEO office for [him] to contact to pursue an employment discrimination claim."  The letter did not contain any appeal rights to the Commission's Office of Federal Operations (OFO).

In a subsequent letter to Complainant dated September 26, 2014, the Assistant Director informed him that it had received his faxes and further asserted "[a]s we informed [Complainant] in our letter dated September 16, 2014, and on the telephone, we are not the correct office for [him] to contact to pursue an employment discrimination claim.  Our office only processes discrimination complaints filed by employees or applicants for employment of [the Agency].  Because no employer-employee relationship exists or existed between [him] and [the Agency], this office cannot process [his] employment discrimination claim." 

The September 26, 2014 letter also provided Complainant with contact information to other federal agencies such as the Department of Labor.  

In a letter to OFO, Complainant asserts that the Agency "failed to process" his formal complaint.  In addition, Complainant asserts that he was not provided with proper appeal rights.


ANALYSIS AND FINDINGS

We note that the Agency did not issue a final decision in the instant matter.  However, the Agency in its letters to Complainant determined that he was not an Agency employee or applicant for employment and therefore it lacked jurisdiction to process his claims.  

In the instant matter, we find that Complainant has not been afforded the opportunity to participate in EEO Counseling or file a formal EEO complaint.  We find that it was improper of the Agency to decline EEO Counseling and the opportunity to file a formal EEO complaint.  See Complainant v. Gen. Serv. Admin., EEOC Appeal No. 01923534 (Jan. 7, 1993) (remanding matter to Agency for pre-complaint counseling after Agency did not afford a complainant the opportunity to participate in pre-complaint EEO counseling).  Thus, we REMAND the instant matter for further processing in accordance with the Order below.

ORDER

Within thirty (30) calendar days from the date this decision becomes final, the Agency shall notify Complainant of his right to EEO counseling.  EEO Counseling shall not exceed thirty days, unless Complainant and the Agency agree in writing to extend EEO Counseling for an additional period of no more than sixty days.  Thereafter, the Agency shall issue Complainant a notice of right to file a formal complaint.

A copy of the Agency's notice to Complainant of his right to EEO Counseling and a copy of the Agency's notice to Complainant of his right to file a formal EEO complaint must be sent to the Compliance Officer as listed 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

February 12, 2015
__________________
Date



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




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0120150096