U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaqueline L.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 0120150694 Agency No. FBI-2014-00121 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 9, 2014, regarding her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a variety of positions with the Agency from April 29 through September 21, 2014. On July 8, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (Native American), national origin (Italian), sex (female), religion (Lutheran/Catholic), disability, age (over 50), and reprisal when, from April 29 through September 21, 2014, Complainant was not selected for the following positions: 1. IT Specialist (Forensic Examiner), GS-7/9 (EX), job announcement number: FO-2014-0045; 2. IT Specialist (Forensic Examiner), GS-11/12 (EX), job announcement number: FO-2014-0046; 3. Community Outreach Specialist, GS- 9/11. (EX), job announcement number: PD-2014-0003; 4. IT Specialist, GS-11 (FBI), job announcement number: 22-2014-0018; 5. Management and Program Analyst, GS- 7/9 (EX), job announcement number: HQ-2014-0003; 6. Management and Program Analyst, GS-11/12 (EX), job announcement number: HQ-2014-0004; 7. Supervisory Physical Scientist, GS-15 (Unit Chief) (FBI), job announcement number: 07-2014-0017; and 8. Supervisory Physical Scientist, GS-15 (Unit Chief) (EX), job announcement number: 07-2014-0018. The Agency acknowledged receipt of the complaint. On November 11, 2014, the Agency asked Complainant to provide additional information about the complaint. Complainant provided responses on November 25, 2014. On November 28, 2014, the Agency informed Complainant that it would not be completing the investigation within the regulatory timeframes. It should be noted that several times, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). On December 3, 2014, the record includes a series of emails between Complainant and the Agency's EEO Office. During the exchange, Complainant indicated that her complaint had not been investigated and she wanted the matter before an AJ. The EEO Office sent Complainant a document concerning the withdrawal of her formal complaint. The Agency asked that Complainant sign and submit the withdrawal form. By letter dated December 9, 2014, the Agency notified Complainant that her complaint was closed based on her "voluntary withdrawal" of her EEO complaint. This appeal followed. ANALYSIS AND FINDINGS Upon review of the record, we find that Complainant was confused by the Agency's failure to investigate her complaint and made a number of inquiries about it from June 2014 to December 2014. Complainant, in her frustration, asked the Agency how she could request a hearing. Rather than providing the appropriate information, the Agency provided Complainant with a withdrawal notice. We find that the Agency's actions resulted in Complainant becoming further confused regarding the processing of her complaint. As such, we find that Complainant was not attempting with withdraw her complaint and the Agency's closure of the matter was improper. The Agency failed to explain to her the process for filing a hearing request. As such, we remand the matter so that the Agency can process the complaint and provide Complainant with the appropriate information regarding how she can request a hearing before an EEOC AJ. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's closing of the instant matter and REMAND the complaint further processing in accordance with 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 sixty (60) days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time.2 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 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 November 10, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 When the Agency resumes processing, the Agency should provide Complainant with the proper forms for making a request for a hearing. If Complainant wishes to proceed with her hearing request, she can file her request to the appropriate EEO Hearings Unit rather than waiting the sixty days for the Agency to complete the investigation. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120150694 2 0120150694