2020001843•EEOC Appeal 2020001843
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maynard G.,1 Complainant, v. Eugene Scalia, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency. Appeal No. 2020001843 Agency Nos. IM20-05-096 and 98-05-115 DECISION On January 15, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission). As part of his appeal, Complainant submitted documents related to a class complaint filed against the Agency alleging age discrimination with respect to certain promotional opportunities, that was dismissed by an EEOC Administrative Judge on August 9, 2019. See EEOC Hearing No. 531- 2018-00316X, Agency No. 98-05-115. It is clear from these documents that Complainant was not the class agent for this complaint. While not clear from the record, it appears Complainant may have been a member of the proposed class. The Agency adopted the AJ’s dismissal of the class complaint and sent notice to all the identified class members that they could now pursue their individual complaints of alleged age discrimination by contacting an Agency EEO counselor within 45 days. Following the dismissal of the class action, Complainant sought EEO counseling from the Agency in order to pursue an individual complaint of age discrimination. This matter appears to have been docketed by the Agency as CRC No. IM20-05-096. However, by email to the Agency dated January 29, 2020, Complainant withdrew his individual complaint after learning the two selectees for the positions he had applied for were 45 years old or older. 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.
2020001843 2 Therefore, the subject of Complainant’s January 15, 2020 appeal to this Commission cannot be determined. Complainant does not have the right to appeal the dismissal of the class complaint under EEOC regulations because he was not the class agent. See 29 C.F.R. § 1614.401(c). With regard to the subsequent processing of his individual complaint, it appears Complainant has withdrawn that complaint. On February 19, 2020, this office sent Complainant an email asking him to clarify his appeal and explain what it was that he was appealing. No response has been received from Complainant. Accordingly, Complainant’s appeal is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required.
2020001843 3 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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 September 9, 2020 Date
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