Bill A.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

2019004071 (E.E.O.C. Aug. 29, 2019)

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.
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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.

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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.
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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