Tu D.,1 Complainant,v.David Bernhardt, Acting Secretary, Department of the Interior (Bureau of Land Management), Agency.

Equal Employment Opportunity Commission

Aug 8, 2019

0120182677 (E.E.O.C. Aug. 8, 2019)

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

Tu D.,1
Complainant,

v.

David Bernhardt,
Acting Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.

Appeal No. 0120182677

Agency No. BLM-18-0370

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from a final Agency decision (FAD) dated July 17, 2018, dismissing her
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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Greater Sage Grouse Project Manager, GS-0301-14, at the Montana State Office. While this
office is located in Billings, Montana, Complainant was duty stationed in Montrose, Colorado.

The Agency advertised the job of District Manager, GS-0340-14, in Montrose, Colorado for the
Colorado State Office’s subordinate Southwest District Office via vacancy announcement # CO
Merit-2018-0063. The opening and closing dates were January 23, 2018 – February 20, 2018.
When Complainant tried to submit her application on February 17, 2018, she was notified by the
system that the job was closed. Thereafter, Complainant was notified on February 27, 2018, by
Human Resources that the announcement was cancelled. On March 8, 2018, the Acting Director

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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of the Colorado State Office, who was the selecting official, sent out a blast email, including to
Complainant, announcing that another individual was coming on board to the position.

On June 13, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging
that the Agency discriminated against her based on her sex (female), age (56), and reprisal for prior
protected EEO activity under Title VII when on March 8, 2018, she learned that someone else was
selected for the position, not her.2

The EEO counselor relayed that the Acting Director of the Colorado State Office said he cancelled
the vacancy announcement because he learned that the person he later chose, the Wyoming District
Manager, wanted to be considered for the Southwest District Manager position and she was widely
considered to be a prized manager.

The Agency dismissed the claim before us for failure to timely initiate EEO counseling. It reasoned
that Complainant learned on February 27, 2019, that the vacancy announcement was cancelled,
but did not initiate EEO counseling until April 20, 2019, beyond the 45 calendar day time limit. It
further reasoned that Complainant had a reasonable suspicion of discrimination by February 27,
2019, and her discovery of a comparator on March 8, 2018, without more, is insufficient to
conclude that she did not suspect discrimination earlier. It found that rather, the evidence of the
comparator was simply further support for Complainant’s claim. The Agency also dismissed this
claim for failure to state a claim. Citing Commission case law, it reasoned that when an agency
cancels a vacancy announcement without a selection, the complainant suffers no personal harm
that would render her “aggrieved” for purposes of stating a claim. The instant appeal followed.

On appeal, Complainant argues that because she initiated EEO counseling within 45 calendar days
of learning on March 8, 2018, that the Agency filled the position, i.e., instead of hiring a person
on the list of qualified candidates, it put someone else in the position who never applied. She argues
that she stated a claim because the Agency filled the position.

In opposition to the appeal, the Agency argues that the FAD should be affirmed.

2 The Agency defined the complaint in terms of Complainant learning on February 27, 2018, that
the vacancy announcement was cancelled. On appeal, Complainant, who is represented by counsel,
clarifies that while she raised the cancellation in her complaint, it was background to her allegation
therein that after the cancellation someone else was selected, not her. See Appellate brief, p. 7, top;
EEO complaint typed attachment, top of 1st page, 2nd page, 2nd to last ¶, 3rd page, 1st ¶. In defining
the complaint, the Agency included two prior claims, i.e., (a) after applying for the same job via a
prior vacancy announcement, Complainant was notified on December 1, 2017, that she was not
selected [no one was], and (b) after applying for a detail to the same job pursuant to another
vacancy announcement, Complainant was notified on February 9, 2018, that the Agency cancelled
the announcement [and permitted the current temporary incumbent to continue performing the
duties]. On appeal, Complainant clarifies that incidents (a) and (b) were intended as background,
not actionable claims. Appellate brief, numbered paragraph 20. While Complainant alleged age
discrimination in her EEO complaint, the Agency failed to capture this.
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ANALYSIS AND FINDINGS

The case of Pearcy v. EEOC, Request No. 05890567 (Oct. 12, 1989) presents a situation similar
to the case before us. Therein, the complainant alleged that the agency cancelled a vacancy
announcement in reprisal for her EEO activity. The agency dismissed the EEO complaint because
the complainant did not identify any injury which resulted from a discriminatory personnel action
and no one was ultimately selected. In reversing the dismissal, the Commission, in its adjudicatory
capacity, found that the complainant alleged that an applicant was selected before the vacancy
announcement was cancelled, and hence stated a claim. In the case before us, the selecting official
relayed to the EEO counselor that he cancelled the vacancy announcement so he could choose the
eventual selectee. While the Agency’s finding that Complainant was not aggrieved by the
cancellation of the vacancy announcement makes sense in isolation, because the Agency
nevertheless filled the position, Complainant’s claim that she was discriminated against when she
was not selected states a claim. Further, we agree with Complainant that the time limit for initiating
EEO counseling began to run on March 8, 2018, when she learned the position was filled.
Accordingly, we find Complainant timely initiated EEO counseling.

The FAD is REVERSED.

ORDER (E0618)
The Agency is ordered to process the remanded claim, as redefined herein, in accordance with 29
C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim 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
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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). 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
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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 (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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 8, 2019
Date