0120122210
10-16-2012
Ramsey K. Hamad, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Ramsey K. Hamad,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120122210
Agency No. HSCBP019052011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 21, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment as a Border Patrol Agent with the Agency. On November 16, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Palestinian), national origin (Palestine), and religion (Muslim) when he learned on August 12, 2011 that he was not selected for the position of Border Patrol Agent, GS-1896-5, as advertised under Vacancy Announcement Number 16339.
The Agency dismissed the complaint in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(5) on the grounds that Complainant alleged a preliminary step to taking an employment action was discriminatory. Specifically, the Agency argues that Complainant has not received official notification that he has not been selected for the position at issue herein. On appeal, however Complainant contends that the Agency has informed him that based on his failure to successfully complete the polygraph examination as part of the application process, he has been found unsuitable for employment as a Border Patrol Agent.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(5) provides for dismissal of a complaint that "alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action is discriminatory." Here, the record indicates that Complainant was advised in an email dated September 1, 2011 that "[t]he Customs and Border Protection, (CBP), Office of Internal Affairs (IA) has notified the Minneapolis Hiring Center (MHC) that based on the results of [Complainant's] background investigation (which may have included a polygraph examination), [he has] been found unsuitable for employment as a Border Patrol Agent." The Agency argues that because Complainant was further advised in the September 1, 2011 correspondence that he would later receive a letter from MHC rescinding the tentative job offer, the Agency has only taken a preliminary step. Specifically, the Agency contends that until Complainant has received final notification that he has not been selected for the position at issue, he is not aggrieved. We disagree. The record is clear that based on the results of Complainant's polygraph examination, he was found unsuitable for the position. He was further advised that he will receive a letter rescinding the tentative job offer. There is no ambiguity in the Agency's language that would justify Complainant's belief that the Agency's decision was not final or that he was still being considered for the position of Border Patrol Agent.
CONCLUSION
Therefore, after a careful review of the record, including complainant's arguments on appeal, the agency's response, and arguments and evidence not specifically discussed in this decision, the Commission REVERSES the agency's final decision and REMANDS the matter to the agency in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 16, 2012
__________________
Date
2
0120122210
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122210