[Redacted], Avery S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2022001365 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022001365 Hearing No. 550-2020-00245X Agency No. DON CASE No 19-00253-02783 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 13, 2021, dismissing a formal complaint alleging 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., 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 as an applicant for employment with the Agency. On August 20, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Vietnamese), sex (male), color (“yellow”), age (59 years old at the time of the alleged incident), and in reprisal for prior protected EEO activity. By letter dated September 19, 2019, the Agency determined that the formal complaint was comprised of the following four claims: 1. Based on race, color, national origin, sex, age, and reprisal (for prior EEO complaints), [Complainant was] subjected to disparate treatment discrimination 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. 2022001365 2 when on April 17, 2019, [he was] notified that the job offer for the Electronics Engineer, GS-0855-12 position was withdrawn by the Electrical Engineering Applied Technology Branch Head. 2. Based on whistleblowing activities and nepotism [Complainant was] subjected to disparate treatment when on April 17, 2019, [he was] notified that the job offer for the Electronics Engineer, GS-0855012, position was withdrawn by the Electrical Engineering Applied Technology Branch Head. 3. [Complainant was] subjected to disparate treatment discrimination when on an unspecified date, the agency did not allow [him] to have a copy of [his] background check report and withheld information. 4. On an unspecified date, [Complainant was] not allowed to provide clarification on [his] background check report. The Agency accepted claim (1) for investigation. However, the Agency dismissed the remainder of the formal complaint. The Agency dismissed claim (2) for failure to state a claim reasoning that the raised bases (nepotism and whistleblowing activities) are not within the jurisdiction of the Commission. The Agency noted that to the extent claim (2) could be construed as a reprisal claim for prior protected activity, claim (1), which was accepted for investigation, encompassed this matter. The Agency also dismissed claims (3) and (4) for failure to state a claim. The Agency reasoned that Complainant was not aggrieved by these actions alone and harm was not suffered until the withdrawal of the job offer, which was accepted for investigation. Upon completion of the investigation of claim (1), Complainant requested a hearing before an EEOC Administrative Judge (AJ). On August 9, 2021, the AJ issued an Order to Show Cause that Complainant’s claim involving the withdrawal of the job offer should be dismissed for failure to state a claim. Specifically, the AJ reasoned that “[i]t is undisputed that a job offer was made; that the offer was contingent upon a security clearance; that the security clearance could not be granted and that the job offer was withdrawn solely because a security clearance was not granted. The Commission has ruled that security clearance matters, including matters involving fingerprint issues; as here, gathered in a security clearance determination and, accordingly beyond the Commission’s jurisdiction.” The AJ provided the parties an opportunity to respond. Both parties submitted a response. On November 1, 2021, the AJ issued a decision dismissing the claim regarding the rescinding of the job offer for failure to state a claim. In support of his decision, the AJ cited to Gabriele G., EEOC Appeal No. 2020003214 (Sept. 17, 2020). Specifically, the AJ stated, “[i]n the Gabriele G. decision…, the Commission upheld the Agency’s dismissal of a similar complaint noting that an action accusing management officials of making or relying on false statements related to a security clearance investigation failed to state a claim.” 2022001365 3 The AJ also noted that Complainant’s claims based on whistleblower activities and nepotism should also be dismissed as set forth in the Agency’s partial acceptance and partial dismissal letter.2 The Agency issued a final order dated December 13, 2021 implementing the AJ’s decision dismissing the formal complaint. The instant appeal followed. Complainant asserts that pretext can be established regarding the Agency’s reason for withdrawing his job offer. Complainant asserts that he was not provided a specific reason for the Agency rescinding the job offer, and that he was simply provided a general statement of unfavorable fingerprint results. In addition, Complainant asserts he was not provided a period of time as set forth by regulations to correct any errors with respect to the fingerprinting issue. In response, the Agency asserts that the AJ’s decision dismissing the matter should be affirmed because the job offer was withdrawn solely because a security clearance was not granted. ANALYSIS AND FINDINGS Regarding the AJ’s dismissal of Complainant’s claim that his tentative job offer was rescinded based on his race, color, national origin, sex, age, and reprisal for prior EEO cases, we find that the AJ improperly dismissed this matter for failure to state a claim. In the instant matter, Complainant is alleging that the Agency rescinded his tentative job offer based on his protected classes. Thus, he has set forth an actionable claim. To the extent the Agency asserts that the offer was withdrawn due to unfavorable fingerprint results, we find that this assertion goes to the merits of Complainant’s complaint and is irrelevant to the procedural issue of whether he has stated a justiciable claim. See Tommy R v. Dep’t of Homeland Sec.., EEOC Appeal No. 2020001501 (March 13, 2020) (EEOC reversed Agency’s dismissal for failure to state a claim complainant’s allegation that his tentative job offer was withdrawn due to not completing a favorable polygraph examination); Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111 (July 19 1996). The AJ references the Gabriele G. decision (EEOC Appeal No. 2020003214) in support of his dismissal. We determine, however, that the claim at issue in Gabriele G. involved an agency official making false statements about the complainant to an investigator with the Office of Personnel Management (OPM) and not recommending the complainant for a security clearance. However, in the instant matter, the crux of Complainant’s claim was not the denial of a security clearance but the rescinding of a tentative job offer. 2 The AJ’s decision did not expressly address claims (3) and (4), thus, we decline to address these claims further herein. 2022001365 4 While the Agency asserted the job offer was withdrawn due to unfavorable fingerprint results, this assertion, as set forth above, goes to the merits of the complaint.3 Finally, we concur with the AJ’s dismissal regarding the bases of whistleblowing activities and nepotism for failure to state claim. These bases are not within the jurisdiction of the Commission. However, to the extent Complainant is alleging reprisal for his prior EEO cases when his tentative job offer was withdrawn, this matter sets forth an actionable claim within the jurisdiction of the EEOC. Accordingly, we AFFIRM the AJ’s dismissal of the bases of whistleblowing activities and nepotism. However, we REVERSE the remainder of Complainant’s claim (1), that this job tentative job offer was withdrawn, and REMAND this matter for continued processing and a decision on the merits of Complainant’s claim, in accordance with the ORDER below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing on Complainant’s behalf, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC's San Francisco District Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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). 3 While the AJ’s decision dismissed Complainant’s claim on procedural grounds, we do not issue a determination herein on whether this matter may be appropriate for a decision without a hearing (summary judgment) on the merits of the complaint. This matter is left for the AJ’s determination on remand. 2022001365 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022001365 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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. 2022001365 7 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 April 14, 2022 Date