0120080348
03-05-2008
Ahmed S. Osman, Complainant, v. Henrietta H. Fore, Acting Administrator, Agency for International Development, Agency.
Ahmed S. Osman,
Complainant,
v.
Henrietta H. Fore,
Acting Administrator,
Agency for International Development,
Agency.
Appeal No. 0120080348
Agency No. EOP 07-12
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated September 28, 2007, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. Complainant alleged that he was
subjected to discrimination based on his race (African-American), national
origin (Sudanese), religion (Muslim), age (65), and was retaliated against
for prior protected EEO activity when he was not hired for the position
of Deputy Country Representative, Sudan.
EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of
employment discrimination shall be processed in accordance with Part
1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c)
provides that within the covered departments, agencies and units, Part
1614 applies to all employees and applicants for employment. The FAD
dismissed the complaint for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). It reasoned that complainant submitted a bid for a
personal service contract in response to a solicitation for contract bids,
and hence he was not an applicant for employment.
Complainant applied for a personal service contract under solicitation
number M-OAA-DCHA-OTI-07-1275 to serve as a Deputy Country Representative,
Sudan. The solicitation sets forth in detail the qualifications
of the job. These include a bachelor's degree and seven years of
specified type experience, or a master's degree and five years of
specified type experience. The position is in the agency's Office of
Transition Initiatives (OTI), and is described in the solicitation as
being a middle management position requiring excellent managerial and
communication skills, an ability to perform in a complex and highly
sensitive political environment, experience in policy formulation
and negotiation at the highest levels (government and non-government
organizations), and assisting countries in transition. It includes the
performance of a wide range of administrative functions, i.e., budget
preparation, financial management, records management, and so forth.
The solicitation indicates that the incumbent will be supervised by the
OTI Country Representative or designee. The period of performance is
two years, with three one year option periods.
While the solicitation provided that bids/applications were to go
to GlobalCorps, a private company, it indicated that the contracting
office was in the Agency for International Development. In reply to
complainant's appeal, the agency concedes that the bids were submitted
to the agency.
The agency argues that complainant was not an applicant for employment
because he submitted a bid governed by various contracting procedures
and laws. However, it concedes that if complainant's bid was accepted, he
would have become an employee. It explains that once a bid is selected,
the successful personal service contract bidder gets fringe benefits
not offered in other agencies and comes under the direct supervision of
government employees.
As an initial matter, we agree with the agency's concession that
the incumbent of the Deputy Country Representative, Sudan, is an
agency employee, not contractor. The position is a management
position within the agency, performs a core agency function, and
is supervised by government employees. See EEOC Compliance Manual,
Section 2: Threshold Issues, 2-III.A.1, pages 2-25 and 2-26 (May 12,
2000) (available at www.eeoc.gov). Since the position complainant
sought has employer/employee status, he was an applicant for employment,
regardless of whether the application is through a contract solicitation
or a traditional application process. While the agency cites to authority
that a losing bidder can file a protest about not getting a bid with the
Comptroller General, this does not persuasively show that complainant
is not an applicant for employment as defined by 29 C.F.R. Part 1614.
Accordingly, the FAD is reversed.
ORDER (E0900)
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 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (R0900)
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 (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
March 5, 2008
__________________
Date
2
0120080348
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120080348