0120063540
09-19-2007
Ahmed Osman, Complainant, v. Ambassador Randall L. Tobias, Administrator, Agency for International Development, Agency.
Ahmed Osman,
Complainant,
v.
Ambassador Randall L. Tobias,
Administrator,
Agency for International Development,
Agency.
Appeal No. 0120063540
Agency No. EOP 04-08
DECISION1
On May 23, 2006, complainant filed an appeal from the agency's April 25,
2006, final decision concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final decision.
During the relevant time, complainant was an applicant for employment with
the agency. On April 28, 2004, he filed an EEO complaint alleging that
he was discriminated against on the bases of race (African-American),
national origin (Sudan), religion (Muslim), color (Black), and reprisal
for prior protected EEO activity when:
1. on January 15, 2004, he was informed that his application for the
position of Program Manager (Sudan), Solicitation Number DCHA/OTI-04-0334,
was not accepted due to an untimely application submission, which he
alleged was inaccurate; and
2. he was not selected for the position of Senior Humanitarian Advisor for
Northern Sudan, Solicitation Number M/OP-03-870, dated March 28, 2003.
On July 19, 2004, the agency dismissed claim (2) for untimely EEO
Counselor contact. The agency determined that complainant learned of his
nonselection for the Senior Humanitarian Advisor position on September
2, 2003. However, he did not seek EEO counseling until January 28,
2004, which was more than 45 days after the nonselection.
The agency thereafter investigated claim (1), and at the conclusion of
the investigation, provided complainant with a copy of the report of
investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). On April 25, 2006, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b), concluding that complainant
failed to prove that he was subjected to discrimination as alleged.
Therein, the agency found that complainant failed to establish a prima
facie case of discrimination on any of the claimed bases. Nonetheless,
the agency assumed argunedo that complainant had established a prima
facie case of discrimination. It then found that the responsible
management official (RMO) articulated a legitimate nondiscriminatory
reason for his action, and that complainant failed to show that the
reason was pretextual.
Complainant filed the present appeal from the aforesaid decision.
Although he requested an extension of time in which to file a statement,
which the Commission granted until August 24, 2006, complainant failed
to submit a statement on appeal. The agency submitted an opposition to
complainant's appeal, and requested that we affirm the agency's dismissal
of claim (2) and the April 25, 2006 decision finding no discrimination
as to claim (1).
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Claim 1
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In the present case, we find that the RMO articulated a legitimate
nondiscriminatory reason for not accepting complainant's application for
the position of Program Manager. Specifically, complainant's application
was considered untimely because it was received at 23:52 p.m. on January
15, 2004, well after the 4:30 p.m. (16:30 p.m.) deadline. The RMO
provided a detailed explanation for the aforesaid conclusion. First,
he noted that, in his haste to post the solicitation for applications,
he inadvertently failed to include a specific time for submission on
the solicitation. Although he initially agreed to accept complainant's
application, review of Federal Acquisition Regulations (FAR), Part 15.208,
governing the submission of proposals, revealed he could not waive the
time limit. The aforesaid regulation reads, in relevant part:
Offerors are responsible for submitting proposals, and any revisions,
and modifications, so as to reach the Government office designated in
the Solicitation by time specified in the solicitation. Offerors may use
any transmission method authorized by the solicitation (i.e., regular
mail, electronic commerce, or facsimile). If no time is specified in
the solicitation, the time for receipt is 4:30 p.m. local time, for the
designated Government office on the date that proposals are due.
Report of Investigation, Exhibit (Exh.) D2, p 2. The RMO further noted
that three other applicants' proposals were also found untimely under
the same regulation.2
In his effort to show pretext, complainant asserted that, inasmuch as the
solicitation for applications did not specify a time limit on the closing
date, his application should have been considered timely. We find,
however, that the RMO appropriately referred to Federal Acquisition
Regulations in determining the timeliness of the applications. Moreover,
the record reveals that he applied said regulations to all proposals
received after 4:30 p.m. Complainant also argued that another management
official (MO) influenced the RMO to discriminate against complainant
due to his prior EEO activity. Complainant, however, failed to present
any evidence to support this assertion. For the foregoing reasons, we
find that complainant failed to prove by a preponderance of the evidence
that the agency discriminated against him when it refused to accept his
application for the position of Program Manager (Sudan).
Claim 2
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires agencies to dismiss a
complaint or a portion of a complaint which fails to comply with the time
limitations set forth in 29 C.F.R. � 1614.105(a). An aggrieved person
is required to initiate contact with an EEO counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1).
In the present case, complainant discovered that he was not selected
for the position of Senior Humanitarian Advisor for Northern Sudan
on September 2, 2003. However, he did not seek EEO counseling until
January 28, 2004, more than 45 days after the nonselection. Accordingly,
the Commission finds that the agency properly dismissed claim (2) as
untimely pursuant to 29 C.F.R. �� 1614.105(a)(1); 107(a)(2).
Based on a thorough review of the record, we affirm the agency's final
decision.
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
__9/19/07________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The proposals of the other three applicants were received at 21:40 p.m.,
20:53 p.m., and 16:37 p.m.
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0120063540
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063540