U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120151663 Agency No. 146172602124 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 20, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Optometry Technician at the Agency's Health Clinic, Naval Hospital, Puget Sound Naval Shipyard in Bremerton, Washington. On July 29, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and age when, on April 14, 2014, he was advised to file an EEO complaint for his non-selection in January 2014 for the position of Optometry Health Technician, GS-0640-6/7. On August 18, 2014, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant appealed the dismissal. In EEOC Appeal No. 0120143175 (January 30, 2015), we reversed the Agency's dismissal and remanded the complaint for processing. The decision found that "the record does not demonstrate either actual or constructive knowledge by Complainant of the 45-day limitation period, for the period at issue, and that Complainant on appeal delineated his confusion with the pursuit of the EEO complaint process time limitations." The Agency did not seek reconsideration of the decision. Instead, on March 15, 2015, it issued a "Notice of Amended Dismissal," again dismissing the complaint for failing to contact an EEO counselor in a timely manner. The decision determined that Complainant had a "reasonable suspicion" of discrimination when he was not selected on January 28, 2014, and his contact with a union representative was additional evidence of a reasonable suspicion. The decision also pointed to information Complainant received as a new hire, and training that he took on April 23, 2013, concerning the EEO complaint process. The instant appeal of the amended dismissal decision followed. ANALYSIS AND FINDINGS We have already reversed the Agency's initial dismissal of the complaint in this matter and have ordered the Agency to process the complaint. See EEOC Appeal No. 0120143175. The Agency did not file a request for reconsideration of that decision. Had it done so, it could have then presented its arguments and evidence supporting its disagreement with that decision. Instead, the Agency ignored the finding that its dismissal for untimely EEO counselor contact was reversed and that it was being ordered to process the complaint. Rather, it issued an "amended decision" consisting of a new dismissal for the same reason - untimely EEO counselor contact. We find that in the instant case, the Agency improperly dismissed the complaint after the Commission had already addressed the issue. That decision became final when both parties failed to file a request for reconsideration, and the Agency was bound to follow the Order to process the complaint. Our regulations allow for disagreements with our decisions to be addressed in requests for reconsideration. They do not permit an Agency to unilaterally decide not to comply with a Commission order. Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED as set forth below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (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 Complainants 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 20, 2015 __________________ Date 2 0120151663