U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Long B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120141596 Agency No. 200H-0632-2014101342 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 21, 2014, dismissing a formal 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Nursing Assistant at the Agency's facility in Northport, New York. On February 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), disability, and in reprisal for prior protected EEO activity. The Agency treated the formal complaint as an individual complaint and dismissed the complaint on various procedural grounds. The instant appeal followed. On appeal, Complainant states that he wants to make this "a class action matter" and asserts that white employees are treated more negatively with respect to various employment matters such as promotions and disciplinary actions. ANALYSIS AND FINDINGS Upon review of the record, we find that Complainant wanted to raise a class complaint. The record contains a copy of Complainant's formal complaint which is mostly illegible. However, we note that the formal complaint contains the handwritten notation "class action status." In addition, in a letter from Complainant to the Agency dated March 19, 2014, in response to an Agency request for clarification of his claims, Complainant states in pertinent part that that white employees (in contrast to black employees) are not promoted, are given more difficult assignments, and are subjected to a hostile work environment. In addition, in Complainant's March 19, 2014 letter he states "this requires us to ask for class action [status]..." Finally, the record contains a document entitled "Report of Contact" for the instant case from an EEO Manager who stated, in pertinent part, that Complainant left voice mail messages in which "he made reference to a class action complaint to include the event at issue in the instant complaint." Based on the foregoing, we find that Complainant was filing a class complaint. 29 C.F.R. § 1614.204(d)(1) provides, in part, that "within 30 days of an agency's receipt of a complaint, the agency shall: designate an agency representative...and forward the complaint, along with a copy of the Counselor's report and other information pertaining to timeliness or other relevant circumstances related to the complaint, to the Commission. The Commission shall assign the complaint to an administrative judge..." We find that the Agency did not have authority to simply not process Complainant's class complaint and that the Agency did not comply with the provision set forth above. If the Agency determined that Complainant's class complaint lacked specificity then it should have made the Commission aware of its position when it forwarded the complaint to the appropriate Commission office for the assignment of an EEOC Administrative Judge.2 Accordingly, we REMAND Complainant's class complaint to the Agency in accordance with the ORDER below. Furthermore, we are REVERSING the Agency's final decision regarding his individual complaint and will REMAND this matter for the Agency to hold in abeyance until a final determination is made on Complainant's class complaint. ORDER The Agency is ORDERED to process the remanded claim in accordance with 29 C.F.R. § 1614.204 et seq. The Agency shall acknowledge to Complainant that it has received the remanded class claim within thirty calendar days (30) from the date this decision becomes final. The Agency shall hold in abeyance Complainant's individual complaint until such time as a final determination is made on his class complaint. 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 25, 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 29 C.F.R. § 1614.204(d) (2) provides that "the Administrative Judge may dismiss the class complaint...for any of the reasons listed in § 1614.107 or because it does not meet the prerequisites of a class complaint under § 1614.204(a)(2)." In addition, 29 C.F.R. § 1614.204(d)(4) provides, in pertinent part ""[i]f an allegation lacks specificity and detail, the administrative judge shall afford the agent 15 days to provide specific and detailed information. The administrative judge shall dismiss the complaint if the agent fails to provide such information within the specified time period." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141596 2 0120141596