U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * BUCK H., COMPLAINANT, v. ANTHONY FOXX, SECRETARY, DEPARTMENT OF TRANSPORTATION (FEDERAL AVIATION ADMINISTRATION), AGENCY. Request No. 0520160350 Appeal No. 0120152830 Agency No. DOT-2015-26117-FAA-06 July 27, 2016 DECISION ON REQUEST FOR RECONSIDERATION The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120152830 (Apr. 14, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). On July 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of race (African-American) and color (black) as evidenced by numerous instances of discriminatory harassment. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely filing of his formal complaint. Complainant appealed and, in Buck H. v. Dep't of Transp., EEOC Appeal No. 0120152830 (Apr. 14, 2016), the Commission reversed the Agency's dismissal. The Commission noted that Complainant moved from his address of record and retained counsel, but failed to notify the Agency of these issues. As a result, Complainant did not receive the Notice of Right to File a Formal Complaint on June 15, 2015, as the record indicated. When Complainant actually physically received the Notice on June 22, 2015, he contacted the EEO Counselor seeking clarification on how to determine the starting point of the 15-day filing period. The EEO Counselor responded, "[y]ou have 15 days from the time you receive the paperwork to file the complaint." Complainant acted in reliance of this explanation when he based his 15-day filing period on the date he physically received the Notice on June 22, 2015. Complainant, via his attorney, filed his formal complaint on July 7, 2015. Based on the circumstances present, the Commission found that Complainant demonstrated that he relied on the Agency's explanation of the filing period and, therefore, the Agency's dismissal of the complaint for untimeliness was improper. The Commission reversed the Agency's dismissal and remanded the complaint for further processing. In its request for reconsideration, the Agency argues that the Commission erred in not affirming its dismissal. The Agency contends that Complainant was constructively served on June 15, 2015, and that the Commission added additional facts not supported by the record. In response, Complainant argues that the Commission correctly found that he received actual notice on June 22, 2015, and that he filed his complaint within the 15-day filing period. The Commission emphasizes that a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120152830 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth 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 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 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. 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 Director Office of Federal Operations 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.