[Redacted], Harley J.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Jun 3, 2020

Appeal Nos. 2019001886, 2019001887 (E.E.O.C. Jun. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harley J.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency. Appeal Nos. 2019001886, 2019001887 Hearing Nos. 450-2017-00192X, 450-2016-00141X Agency Nos. BEP-16-0497-F, BEP-15-1411-F DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated October 23, 2018, consolidating and dismissing two of his equal employment opportunity (EEO) complaints alleging 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. For the sake of clarity and administrative efficiency, we exercise our discretion and consolidate the above-referenced appeals. 29 C.F.R. § 1614.606. For the following reasons, the Commission AFFIRMS the Agency’s final order and finds that Complainant's complaints were properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as Bookbinder II, WE-4441, at the Agency’s Western Currency facility in Fort Worth, Texas. 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. 2019001886, 2019001887 2 Prior to the events giving rise to Complainant’s complaint, the law firm that ultimately represented Complainant, represented another Agency employee (hereafter “Employee A”) in an EEO complaint alleging retaliation when he was not selected for the position of Assistant Supervisor Bookbinder II. Ultimately, Employee A and the Agency entered into a voluntary settlement agreement. As a part of that settlement agreement, Employee A was placed into the position of Assistant Supervisor Bookbinder II. On May 13, 2015, Complainant learned of Employee A’s new position as Assistant Bookbinder II. Complainant alleged he inquired to his manager, Operations Manager, Mechanical Exam, WE-4441, (hereafter “Manager”) as to why he was not selected for the position. Complainant alleged Manager told him there was no posting and the selection “came from above him.” On July 12, 2015, Complainant filed a formal complaint (Agency No. BEP-15-1411-F) alleging that the Agency subjected him to discrimination in reprisal for filing a EEO prior complaint (Agency No. BEP-12-0195-F) when he was denied the opportunity to apply/compete for the position of Assistant Supervisor Bookbinder II. On March 28, 2016, the Agency posted a vacancy on USAJOBS, announcement number 16- BEP-58-M, for a Bookbinder, Assistant Supervisor, at the Agency’s Fort Worth, Texas facility. The vacancy posting was open from March 28 through April 11, 2016. For the 21 years Complainant had been with the Agency, he alleged the promotions for Acting/Assistant Supervisors have been made from the applicant pool. Complainant stated for some reason on this open position, they opened up the announcement to everyone via the USAJOBS website instead of retrieving someone from the applicant pool to fill the position. Complainant did not submit an application for the open position. Complainant stated that on May 17, 2016, he learned he was not selected for the open position. Complainant stated since he knew the previous selections had been done from this applicant pool, he did not believe he needed to apply nor was he told by Manager or any of the other Agency officials that he needed to submit an application for the open position. On June 28, 2016, Complainant filed a second formal complaint (Agency No. BEP-16-0497-F) alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when on May 17, 2016, Complainant learned that he was not selected for an open Assistant Supervisor position. At the conclusion of the investigations on both complaints, the Agency provided Complainant with a copy of the report of investigations and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. The same AJ was assigned to both complaints. Complainant submitted a motion to consolidate both complaints. The AJ did not rule on the consolidation. Rather, the Agency submitted two separate motions to dismiss for failure to state a claim, both filed on April 24, 2018. Over Complainant's objections, the AJ granted the Agency’s motions to dismiss. On September 27, 2018, the AJ issued two separate decisions on the instant complaints. On October 23, 2018, the Agency issued a final order consolidating the two complaints and adopting the AJ’s finding that Complainant’s complaint failed to state a claim. 2019001886, 2019001887 3 On appeal, Complainant argues the AJ erred in dismissing the complaints. Complainant requests the Commission reverse the Agency’s final order and remand the matter for a hearing. In response, the Agency contends the Commission should affirm the final order adopting the AJ’s dismissals of Complainant’s complaints for failure to state a claim. ANALYSIS AND FINDINGS The Commission finds that the complaints fail to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Commission's guidance provides that an employee states a claim of retaliation or reprisal when an Agency takes a materially adverse action against him for engaging in protected EEO activity, such as participating in an EEO claim or opposing a discriminatory practice in the workplace. The Commission considers reprisal claims broadly. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (April 4, 2000). The alleged retaliatory actions need not impact a term, condition, or privilege of employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). For retaliation, a complainant need only show that a materially adverse action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. 548 U.S. at 68. Complainants are protected from any discrimination that is reasonably likely to deter protected EEO activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); see also Carroll, supra. The Commission’s guidance states if the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation. Id. With regard to Complainant’s first complaint (Agency No. BEP-15-1411-F), this Commission has held that settlement agreements may not be considered independent acts of discrimination against those not benefitted by the agreement “unless there are allegations of bad faith in making the agreement, that is, that the agreement was not a bona fide attempt to conciliate a claim but rather an attempt to bestow unequal employment benefits under the guise of remedying discrimination.” See Grasso v. Dep’t of Agriculture, EEOC Appeal No. 01A05316 (January 31, 2002); Dashek v. U.S. Postal Serv., EEOC Appeal No. 01A50145 (January 14, 2005). Here, Complainant never alleged bad faith in Employee A’s settlement agreement, only that he was unable to compete for the position. Since Complainant's claim is based on a settlement agreement that cannot be considered an independent act of discrimination against a third party, we agree with the AJ that dismissal was proper because Complainant failed to state a claim. With regard to Complainant’s second complaint (Agency No. BEP-16-0497-F), we find that the AJ properly dismissed this complaint for failure to state a claim. The record reveals that Complainant did not apply for the Assistant Supervisor Bookbinder position. Complainant states his non-application was based on his belief that these positions were selected from the applicant pool within the Agency. 2019001886, 2019001887 4 Generally, a claim of discriminatory non-selection fails to state a claim when a complainant failed to apply for the position. See Owen v. Social Security Administration, EEOC Request No. 05950865 (December 11, 1997). A complainant is only aggrieved by such claims where he proves that the agency discouraged him from applying, or that the application process was secretive. See Ozinga v. Dep’t of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991); Smith v. Dep’t of the Army, EEOC Appeal No. 0120073553 (October 31, 2007). In the present case, Complainant admits that he never applied for the position. He has failed to show that the Agency discouraged him from applying, or otherwise kept him unaware of the opening. Complainant did state on April 20, 2016, after the vacancy announcement ended, he emailed Manager asking why the Assistant Supervisor job was open this time to everyone. Manager responded he would get me an answer in a few days. A few days later, when Complainant followed up, Manager referred his questions to Labor Relations, which Complainant stated never responded. These facts, without more, simply do not indicate that Complainant was affirmatively discouraged from applying for the position or that the process was held in secret. Significantly, we note that the record establishes that the position was openly advertised online on USAJOBS. Based on this public vacancy announcement, Complainant could have applied for the position, but did not. Accordingly, his complaint fails to state a claim and was properly dismissed. CONCLUSION Accordingly, the Agency's final order dismissing Complainant's complaints is affirmed. 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. 2019001886, 2019001887 5 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 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 (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 (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 June 3, 2020 Date