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