0120064096
06-12-2007
Jason Burgos, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Jason Burgos,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200640961
Agency No. HS-06-0264/DOT-7-03-7169
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 4, 2006, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim.
In November 2002, complainant applied for a position with Covenant
Aviation Security ("Covenant") as a Transportation Security Screener
at San Francisco International Airport. The record indicates that the
agency had selected San Francisco International Airport, among others,
to participate in a pilot program testing the feasibility of private
contractors performing passenger and property screening at airports.
On November 16, 2002, complainant was administered an assessment test
required for the Screener position. The same day, complainant learned
that he did not pass the assessment test and, thus, was not hired.
On March 31, 2003, complainant initiated contact with an Equal Employment
Opportunity (EEO) Counselor and, subsequently, filed a formal individual
and class complaint, alleging that the agency discriminated against
him and others similarly situated to him. Specifically, complainant
alleged that he failed the Screener assessment test and did not receive a
Screener position due to his race (Asian), national origin (Phillippines)
and reprisal for prior EEO activity. Separately, complainant also alleged
discrimination by NCS Pearson, the company that developed and administered
the Screener assessment test, and Covenant, the private security company
that won the contract to provide screeners to the agency.
On April 5, 2004, an EEOC Administrative Judge (AJ) dismissed the class
complaint for failure to state a claim2. The AJ held that the class
members were applicants for employment with a private contractor and not
with a Federal agency. As a result, the agency processed complainant's
complaint as an individual one. On May 4, 2006, the agency issued a
final decision also dismissing complainant's individual complaint for
failure to state a claim. The agency stated that officials from NCS
Pearson conducted the Screener assessment test and Covenant made hiring
determinations, and the record does not indicate intent to create an
employee-employer relationship between the Screeners and the agency.
Subsequently, complainant filed the instant appeal. On appeal,
complainant asserted that the agency had primary control and oversight
for aviation security and government mandates were imposed on security
screening contractors, so the agency should be held accountable.
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).
After a careful review of the record, we affirm the agency's final
decision dismissing complainant's complaint. Specifically, as we found in
Melendez v. Dep't of Homeland Security (Transportation Security Agency),
EEOC Appeal No. 0120063765 (November 13, 2006) (citing Ma v. Dep't of
Health and Human Services, EEOC Appeal No. 01962390 (May 29, 1998)),
which is like the instant matter, we find that complainant was not an
applicant for employment with the agency, neither solely or jointly,
and therefore has no standing in this matter.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 12, 2007
__________________
Date
1 Due to a new Commission data system, the instant case has been
redesignated with the above-referenced appeal number.
2 The AJ's Order of Dismissal is for EEOC Hearing Numbers 370-2003-02622X,
370-2003-02625X, 370-2003-0264X and 370-2003-02618X.
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0120064096
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064096