Bill A.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionAug 29, 20192019004071 (E.E.O.C. Aug. 29, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill A.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019004071 Hearing No. 570-2018-00684X Agency No. HS-ICE-01594-2017 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was worked as a Supervisory Detention & Deportation Officer at the Agency’s Enforcement and Removal Operations in Washington D.C. On June 13, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), disability, and age when, on April 6, 2017, he became aware that Agency management did not select him for the Deputy Field Office Director position, GS-15, advertised under Vacancy Announcement Number LAG- ERO-1783209-SB-565. 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. 2019004071 2 After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. Thereafter, the Agency filed a Motion to Dismiss to which Complainant filed an opposition. The AJ issued a document entitled “Decision and Order” dated April 22, 2019, dismissing the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the AJ noted that as a result of Complainant’s qualifications, on March 30, 2017, a Special Assistant (“SA”) contacted Complainant offered him the opportunity to interview for the subject position. On the same day, Complainant notified the SA that he had “no further interest in participating in the interview exercises” for the subject position. Based on this evidence, the AJ determined that Complainant withdrew his application from the selection process. Specifically, the AJ stated that according to Complainant, he argued that based on his experience with the interview process “he views the process ‘as a sham with the outcome already predetermined.’” The AJ further noted that Complainant stated he had no further interest in participating in the interview process because he “had no confidence in the agency hiring process.” Subsequently, the Agency issued the instant final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, we find that the instant complaint was properly dismissed for failure to state a claim. Complainant does not dispute the AJ’s contention that he withdrew his application from consideration for the subject position. Because Complainant withdrew his application prior to an applicant being selected, Complainant is not aggrieved. We AFFIRM the Agency’s final order implementing the AJ’s dismissal of Complainant’s complaint for failure to state a claim. 2019004071 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 2019004071 4 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 August 29, 2019 Date Copy with citationCopy as parenthetical citation