U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jefferey G,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (U.S. Mint), Agency. Appeal No. 0120162440 Agency No. MINT160480F DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 24, 2016, 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. The Agency dismissed the Complaint for stating claims that were not brought to the attention of a Counselor during the pre-complaint phase, pursuant to 29 C.F.R. § 1614.107(a)(2). For the following reasons, the Commission REVERSES the Agency's final decision and REMANDS the matter for further processing. ISSUE PRESENTED The issue presented is whether Complainant's claims were properly dismissed by the Agency for failing to state the basis of his claims during pre-complaint counseling, pursuant to § 1614.107(a)(2). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Production Maintenance Mechanic at the Agency's United States Mint facility in Philadelphia, Pennsylvania. On June 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. He received verbal counseling for false accusations against him; 2. A supervisor said "fucking nigger" under his breath in the presence of the complainant eating lunch in the break room; and 3. After that incident the complainant was escorted out of the building by police and has not been allowed to return to work. The record shows that Complainant first sought EEO counseling on May 4, 2016. He was interviewed by the EEO Counselor on May 17, 2016. In the Counseling Report, the Counselor stated that Complainant "Refused to disclose details" of his discrimination claims and said that the "EEO process at the informal stage is a waste of time." However, on the same form, the Counselor also checked off "Race" under question seven: Basis or Type of Complaint. Additionally, under question 8: Matter Causing Complaint or Issue, the Counselor marked "x" in the box for harassment. On the Dispute Resolution Specialist's Checklist the Counselor initialed the line stating "I explained that I will not be the one who will make the decision on the acceptability of complainant's claims(s); but there is a possibility that, for the reason(s) below, the claim(s) may be dismissed in accordance with 29 C.F.R. § 1614.107." The Counselor did not identify any issues that could result in the dismissal of Complainant's claims. Complainant was sent a Notice of Right to File a Formal Complaint on June 2, 2016 and filed his formal complaint on June 10, 2016. The Agency dismissed the Complaint because Complainant failed to identify his claims during pre-complaint counseling and refused to participate in the informal counseling process as required by 29 C.F.R. § 1614.105(a). CONTENTIONS ON APPEAL Complainant contends that he had the right to file a formal complaint because the 30 day counseling period, under 29 C.F.R. § 1614.105(d), expired before he was given a final interview. Complainant requests that the Final Agency Decision be overturned and the Agency ordered to process his Complaint. The Agency contends that it was required to dismiss the Complaint pursuant to § 1614.107(a)(2), which calls for the Agency to dismiss a complaint that "raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a counselor." The Agency asserts that because Complainant refused to identify the basis of his claims at the informal processing stage, his Complaint could not raise claims that were "like or related" to any claims brought to a Counselor and therefore must be dismissed. ANALYSIS AND FINDINGS After a careful review of the record, the Commission finds that the Agency failed to notify Complainant that only those claims raised in pre-complaint counseling could later be the subject of his formal Complaint. Under 29 C.F.R. § 1614.105(b)(1), the Counselor is required to inform the complainant in writing of his rights and responsibilities, including "that only the claims raised in pre-complaint counseling (or issues or claims like or related to issues or claims raised in pre-complaint counseling) may be alleged in a subsequent complaint filed with the agency." § 1614.105(b)(1); see also, Management Directive 110, Appx. C(p) (Aug. 15, 2015). While the record shows that Complainant chose not to reveal the specific underlying events giving rise to his complaint of discrimination, he was never informed that his failure to do so would allow the Agency to dismiss his formal complaint pursuant to § 1614.107(a)(2). Neither the Counselor's Report nor any of the documentation relating to the Notice of Right to File a Formal Complaint indicates that the Counselor gave Complainant notice in writing of the effect of his refusal to adequately participate in the informal process, as required by § 1614.105(b)(1). Additionally, the EEO Counselor's Report shows that Complainant did identify the basis of his complaint as race discrimination and the issue as harassment during his pre-complaint counseling appointment. For these reasons, the Commission finds that the Complaint was improperly dismissed and orders the Agency to process the remanded claims in accordance with 29 C.F.R. § 1614.108. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed herein, the Commission REVERSES the Agency's final action and REMANDS the matter to the Agency in accordance with this decision and the ORDER below. ORDER (E0610) 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 of this decision. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 10-28-16 __________________ 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 01-2016-2440 2 0120162440