Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120150200 Agency No. 2014-25773-FAA-02 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2014, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as an H Band Human Resource Management Specialist at the Agency's Headquarters Corporate Recruitment Division, Office of Human Resources, in Washington, DC. On May 13, 2014, Complainant initiated EEO contact regarding the matter at issue. The Agency issued Complainant the Notice of Right to File on August 19, 2014. The pertinent record shows that Complainant filed a single complaint, which was filed on September 3, 2013. He alleged that the Agency subjected him to discrimination on the basis of race (African-American) when, on April 3, 2014, Complainant was informed that management denied his promotion to a J Band position. According to the Counselor's Report, Complainant first became aware of the alleged discrimination on April 10, 2014. On July 7, 2014, the EEO counselor conducted her initial interview with Complainant. During that interview, Complainant stated that he was unsure whether he should proceed with his claim. On that same date, the counselor emailed Complainant to let him know that the counseling would have to be extended due to his previous withdrawal of his claim. Complainant avers that he did not withdraw his claim. On September 19, 2014, the Agency issued a final decision dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that Complainant raised the same claim as stated in his informal EEO complaint initiated on May 13, 2014. Next, the Agency found that, on June 12, 2014, Complainant "requested to withdraw [his] complaint from the EEO Intake Specialist." The Agency stated that, on June 16, 2014, Complainant "requested to be readmitted into the EEO process. The Agency dismissed the September 3, 2014 complaint for stating the same claim that has been previously raised. This appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before, or has been decided by, the Agency or Commission. On appeal, Complainant maintains that he did not withdraw his complaint. Moreover, the record does not show that Complainant previously filed a complaint or that the same matter had been decided by the Agency or Commission. On the contrary, the Agency issued Complainant the Notice of Right to File in this case after the date that the Agency claims Complainant withdrew his claim. The Agency failed to include information about the previous complaint such as the complaint number. Nor is there a copy of any withdrawal form or email suggesting complaint withdrew the complaint. 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). Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER 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 tends 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 March 31, 2015 __________________ Date 2 0120150200 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120150200