0120103036
11-29-2010
Frederick S. Felt, Complainant, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency.
Frederick S. Felt,
Complainant,
v.
Christopher J. Scolese,
Acting Administrator,
National Aeronautics and Space Administration
(Goddard Space Flight Center),
Agency.
Appeal No. 0120103036
Agency No. NCN-09-GSFC-077
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 29, 2010, 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.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events at issue, Complainant worked as a Senior Electrical Engineer for QSS Group, Inc. at the Agency's Goddard Space Flight Center in Greenbelt, Maryland. On March 31, 2009, Complainant submitted an unsolicited proposal to set up a night-time laboratory to assist with the work overload in the Parts Analysis Laboratory. On June 19, 2009, the Agency rejected Complainant's unsolicited proposal for failing to meet the requirements set forth in NASA FAR 15.606 Content of Unsolicited Proposal.
According to the Agency's Guidance for the Preparation and Submission of Unsolicited Proposals, the Agency "depends upon the private sector - industry, educational institutions and other nonprofit organizations -- for the greater part of its research needs" and therefore encourages the submission of unsolicited proposals which will further the Agency's mission. The Guidance defines an unsolicited proposal as follows:
An unsolicited proposal is a written proposal that is submitted to an agency on the initiative of the submitter for the purpose of obtaining a contract (or other agreement) with the Government and which is not in response to a formal or informal request (other than an agency request constituting a publicized general statement of needs).
In his formal complaint, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity [under Title VII and the ADEA] when management refused to discuss, modify, or accept an unsolicited proposal that he submitted.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Given the definition of unsolicited proposals under the Agency's guidelines, the Agency found that Complainant's unsolicited proposal could not be deemed to encompass an employment relationship with the Agency. Instead, the Agency found that Complainant's submission of his unsolicited proposal created a relationship with the Agency equivalent to a private citizen seeking a contract or some other form of non-employment based relationship. The Agency found that management's refusal to accept Complainant's unsolicited proposal was not an adverse employment action under 29 C.F.R. � 1614.103(a).
CONTENTIONS ON APPEAL
On appeal, Complainant asserted that his complaint falls under the applicable EEO regulations because his submission of the unsolicited proposal had a direct correlation to his employment relationship with the Agency. In support of this contention, Complainant explained that he is a contractor employee currently working in the laboratory for which the unsolicited proposal was suggested. In addition, Complainant asserted that the two management officials who rejected his unsolicited proposal have engaged in a pattern of ongoing employment discrimination against Complainant in his current position as a contract employee.
In response, the Agency requested that we affirm its final decision. The Agency argued that, although Complainant is currently a contract employee, the instant complaint pertains to his failed attempt to have the Agency engage him as an independent contractor. In addition, the Agency argued that unsolicited proposals fall within the purview of procurement matters because they contemplate contractual relationships with the Agency. Further, the Agency noted that this was not analogous to a contingent worker case where an employee of a contractor seeks to obtain access to the federal sector EEO complaint process as if he were a civil agent.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he 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, .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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review of the record, we find that Complainant's complaint fails to state a claim. The Agency's Guidance explicitly defines an unsolicited proposal as "a written proposal that is submitted to an agency on the initiative of the submitter for the purpose of obtaining a contract (or other agreement) with the Government." In addition, it is clear from the language in the Guidance that the Agency envisions unsolicited proposals as a way for "the private sector" to help further the Agency's mission. As such, we find that the Agency's rejection of Complainant's unsolicited proposal concerns Complainant's capacity as a private individual and not as a contractor employee who works at the Agency.
Complainant asserted on appeal that his unsolicited proposal had a direct correlation to his employment relationship with the Agency because the contents of the proposal involved the laboratory in which he was working as a contractor employee and the proposal was rejected by management officials against whom he had filed prior EEO complaints. Complainant may have suffered a harm or loss as an individual proposer from "the private sector" when management rejected his unsolicited proposal, but we find that he has not suffered a harm or loss with respect to a term, condition, or privilege of employment. We emphasize that the alleged discriminatory action, the rejection of Complainant's unsolicited proposal, may touch upon various aspects (the laboratory and the management officials) of his employment relationship with the Agency, but the action itself ultimately concerns Complainant's non-employment relationship with the Agency. 1 Accordingly, we affirm the Agency's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency's dismissal of Complainant's complaint.
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 (S0610)
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. 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 (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
__11/29/10________________
Date
1 The instant decision does not address whether Complainant, a contractor employee with QSS Group, Inc., is an Agency employee for purposes of Title VII and the ADEA.
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0120103036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103036