Murray H.,1 Complainant,v.Dr. David J. Skorton, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

2019000719 (E.E.O.C. Feb. 6, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Murray H.,1
Complainant,

v.

Dr. David J. Skorton,
Secretary,
Smithsonian Institution,
Agency.

Appeal No. 2019000719

Agency No. 18-24-090618

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated September 25, 2018, dismissing a formal
complaint of unlawful employment discrimination in violation of 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 an applicant for a position at the Agency’s National
Museum of American History in Washington, D.C.

On September 6, 2018, Complainant filed a formal complaint, claiming that the Agency
subjected him to discrimination based on disability and age when, on June 28, 2018, he was not
selected for the position of Music Curator with the National Museum of American History,
advertised under Vacancy Number 18A-SB-303311-MPA-NMA.

On September 25, 2018, the Agency issued the instant final decision. The Agency determined
that because the vacancy announcement was closed, and no one was selected for the position,
there was no possibility that Complainant could have suffered any loss or harm.

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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The Agency therefore dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim, finding that Complainant was not aggrieved.

The instant appeal followed. Complainant argues that the Agency misconstrued his formal
complaint in the narrowest of light possible in order to dismiss it. Complainant states that the
Agency repeatedly faulted him for failing to apply to the proper vacancies, when the Agency
directed Complainant to apply only through a specific vacancy announcement meant for
Schedule A applicants. Complainant argues that an investigation would reveal the discriminatory
motive behind the cancellation.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing
initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the allegations of discrimination are raised. In
addition, the claims must concern an employment policy or practice which affects the individual
in his or her capacity as an employee or applicant for employment. 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; §1614.106(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).

The instant formal complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. Here, Complainant argued that the Agency’s vacancy announcement
was specifically cancelled to prevent Complainant from obtaining the Music Curator position.
Complainant made reference to an April 5, 2018 email from the Agency that stated:

At this time, the panel is only reviewing DEU [non-disabled] applicants. If they
choose to move onto review of the 8 qualified MPA [disabled] applicants (which
you are), then you will be notified.

Complainant argued that the email was direct evidence of discrimination, and that the Agency
did not provide all applicants with equal review. Complainant argued that he was more than
well-qualified for the position, and strongly believed that the announcement was canceled to
avoid even giving him the consideration due to his disability and age.

Generally, when an Agency cancels a vacancy announcement without making a selection, the
complainant suffers no personal harm that would render him or her “aggrieved.” See Van Nest v.
Department of the Army, EEOC Request No. 05960752 (November 20, 1998).
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However, when, as is the case here, a complainant claims that the vacancy announcement was
cancelled for a discriminatory motive, and that the cancellation was to avoid giving a
complainant the position, he does state a claim. See Lall v. Department of the Navy, EEOC
Request No. 05A00064 (April 24, 2000).

The Agency's final decision dismissing the formal complaint is REVERSED. The formal
complaint is REMANDED to the Agency for further processing in accordance with the ORDER
below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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).
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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 (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).

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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.
Carlton M. Hadden, Director
Office of Federal Operations

February 6, 2019
Date