Predrag Tijanich, Complainant,v.Condoleezza Rice, Secretary, Department of State, Agency.

Equal Employment Opportunity CommissionMar 30, 2005
01a44959 (E.E.O.C. Mar. 30, 2005)

01a44959

03-30-2005

Predrag Tijanich, Complainant, v. Condoleezza Rice, Secretary, Department of State, Agency.


Predrag Tijanich v. Department of State

01A44959

March 30, 2005

.

Predrag Tijanich,

Complainant,

v.

Condoleezza Rice,

Secretary,

Department of State,

Agency.

Appeal No. 01A44959

Agency No. 03-57

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 8, 2004, 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. In his complaint, complainant alleged that he was

subjected to discrimination on the bases of national origin (American),

sex (male), and age (D.O.B. 8/27/56) when:

Complainant was not selected for the position of Commercial Specialist,

American Consulate General, Milan, Italy under Vacancy Announcement

No. 02-51.

Originally, the agency dismissed complainant's complaint on August 22,

2003, for untimely EEO Counselor contact. In EEOC Appeal No. 01A35118

(December 18, 2003), the Commission reversed the agency's dismissal

and remanded the complaint for further processing. The agency filed

a request for reconsideration, which the Commission denied under EEOC

Request No. 05A40503 (March 31, 2004). The agency attempted to file

a second request for reconsideration, EEOC Request No. 05A40702 which

the Commission administratively closed.

Thereafter, the agency issued a final decision on July 8, 2004 dismissing

complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for

failure to state a claim. The agency noted that the position for which

complainant was non-selected was a Department of Commerce position.

The agency explained that it provides human resource services and

processing to other U.S. government agencies that have staff at embassy

and consulate facilities on a reimbursable basis through an inter-agency

agreement. In the present case, the agency states that it assisted

the Department of Commerce with processing the applications for staff

to be recruited and hired through local mechanisms. The agency noted,

however, that it did not act as a decision-maker in the selection process.

The agency stated that it advertised and processed the position by its

Office of Human Resources at post, which conducted a paper review of the

applications and then referred thirty-three candidates to the Commercial

Section for selection and further processing. The agency noted that

Person A, Principle Commercial Officer, Department of Commerce, was the

selecting official for the position at issue. The agency stated that

Person A consulted with five other Commercial Specialists and the Deputy

Commercial Officer, all of whom are Department of Commerce employees.

Additionally, the agency noted that in his complaint and in the EEO

Counselor's Report, complainant alleged that Person A informed him

that he was �overqualified for the position,� which he considered a

euphemism for being considered too old for the job. Thus, the agency

argued that any alleged discrimination in the selection process did not

occur during the Office of Human Resource's processing of his application.

The agency stated that complainant's complaint should be filed with the

Department of Commerce.

On appeal, complainant claims that the U.S. Consulate General's Commercial

Service in Milan, Italy failed to grant him initial appointment.

He states they also failed to list the vacancy on their bulletin boards

as done in the past and failed to consult their active application file

and contact him on their own initiative. Complainant states that he

was told by Person A that he was overqualified which he understood as a

statement that he was too old for the job. Additionally, in an August

10, 2004 letter, complainant states that Person B, and her assistant,

Person C, in the agency's Department of Human Resources, had material

control of the recruitment procedures.

In response to complainant's appeal, the agency reiterates its position

that the Department of Commerce is the proper agency to pursue this

complaint because that is the agency that employs the individuals who

were the decision makers in this case. The agency notes that it was a

Department of Commerce position for which complainant applied and the

Department of Commerce that rejected complainant after interviewing him.

The agency notes that it merely processed complainant's application and

claims that other than serving in this administrative capacity, it had

no additional involvement in the selection process.

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 or she

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. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Upon review, we find that the agency properly dismissed the present

complaint for failure to state a claim. The record reveals that the

Commercial Specialist position for which complainant applied was a

position with the Department of Commerce. The record reveals that the

selecting official for that position was Person A, Principle Commercial

Officer, a Department of Commerce employee. Person A notes that she

shared responsibility for final selection with five other Commercial

Specialists and her deputy, who were Commerce employees. The agency

contends that other than processing the initial applications for the

Commercial Specialist position and forwarding the minimally qualified

candidates to Commerce, it had no other involvement in the selection

for the position. The record reveals that complainant was interviewed

by Person A for the Commerce Specialist position and ultimately not

selected. In the present case, complainant fails to identify a specific

discriminatory action allegedly committed by the subject agency sufficient

to state a cognizable claim against that agency.

Accordingly, the agency's decision to dismiss complainant's complaint

is AFFIRMED.

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 (S0900)

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 (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 30, 2005

__________________

Date