0120152548
01-29-2016
Alfonzo H.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Alfonzo H.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120152548
Agency No. DD-FY14-147
DECISION
On August 11, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 17, 2015, concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Teacher (Hearing Impaired) at the Agency's Education Activity, Domestic Dependents Elementary and Secondary Schools (DDESS) in Camp Lejeune, North Carolina, who pursuant to a reduction-in-force (RIF) was terminated effective June 28, 2014, with alleged status of having priority consideration through the DDESS Reemployment Priority List.
On November 3, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (White), disability (hearing impaired), and reprisal for prior protected EEO activity under the Rehabilitation Act when the Agency did not rehire him for a vacant full time Deaf and Hard of Hearing teaching position announced through the Sunbelt Staffing Agency, even though because he was separated via a RIF he had priority consideration through the DDESS reemployment priority list.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency found no discrimination.
In August 2014, Complainant conducted an online search and found a listing for the full-time position of Teacher for the Deaf (2014 - 2015 school year) advertised by the Sunbelt Staffing Agency. It was listed as being near Camp Lejeune, North Carolina, and required a Master's Degree in Deaf Education with certification in North Carolina. Complainant did not apply.
Complainant believed the Agency was trying to bypass the use of the DDESS Reemployment Priority List and Human Resources to discriminatorily not hire him by bringing on a contract teacher. Complainant stated that knowing the deaf education community, there was no other teaching position available in the area other than Onslow County Schools, but they advertised it as a full-time, permanent position within their own system, not though a staffing agency.
The District Superintendent of the Camp Lejeune District Schools countered that to the best of his knowledge, the Camp Lejeune District Schools does not use the Sunbelt Staffing Agency. An Agency Human Resources Specialist in the Recruitment/Placement stated that her office did not process any hiring action for a full-time, Deaf and Hard of Hearing teaching position announced through the Sunbelt Staffing Agency. She stated that she inquired with the Sunbelt Staffing Agency and it indicated this announcement was not for a position within the Department of Defense Education Activity.
An email by the Agency Diversity Management & Equal Opportunity Program Manager reflects that a Human Resources Specialist contacted the Sunbelt Staffing Agency and was advised it only fills positions with the local Public, Private and Charter Schools, not the Department of Defense.
In its FAD, the Agency found that Complainant did not apply with a position with the Sunbelt Staffing Agency, and the advertised position was not with the Agency. It found that since he was not an applicant for federal employment, his complaint was outside the jurisdiction of the EEO process, and as a matter of fact and law Complainant's allegations were without merit and there was no violation of employment discrimination statutes.
The instant appeal followed. On appeal, Complainant argues that the "investigation was not conducted throughout the entire case and the RIF should not be separate from my original complaint for discrimination..." Complainant filed a prior EEO complaint which has been generally described as regarding a denial of reasonable accommodation. The Commission's case tracking system reveals it is pending EEOC's hearing process.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency's definition of the complaint as regarding not being rehired was a reasonable reading of a complaint that was not entirely clear. When the Agency defined the complaint, it provided Complainant an opportunity to correct the definition, and he did not do so. Even on appeal, it is not clear if Complainant is arguing that his complaint was incorrectly defined.
The issue before us is whether the Agency properly determined, in essence, that Complainant was unable to establish the necessary causal connection between his alleged injury and an action of the Agency when he was not rehired for a teaching position announced through the Sunbelt Staffing Agency, a private staffing firm. Here, Complainant contended that the Agency tried to bypass the use the DDESS Reemployment Priority List and Human Resources to discriminatorily avoid rehiring him as a full-time teacher by bringing on a contract teacher. He points to a vacancy announcement by the Sunbelt Staffing Agency. However, the weight of the evidence supports the Agency's determination that this position was not with the Agency, by contract or otherwise. Therefore, Complainant has no claim against the Agency regarding the selection process identified in his complaint.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
January 29, 2016
_________________
Date
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.
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