0120180480
04-06-2018
Cary R,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cary R,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120180480
Agency No. OCFO201700811
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 6, 2017, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-7, at an Agency facility in New Orleans, Louisiana. The Agency hired Complainant, in December 2016, under a non-competitive term appointment, not to exceed January 7, 2018. On April 3, 2017, Complainant's immediate supervisor (S1) submitted a Request for Personnel Action proposing Complainant's conversion to career appointment.
On September 28, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American)2 and sex (male) when, as of July 26, 2017, it failed to convert Complainant from his 30% Disabled Veteran Provisional Appointment to a permanent or career conditional status. Complainant stated that he learned that the Agency converted the status of an intern, who is outside of his protected classes, although his conversion remained pending. Complainant stated, due to uncertainty regarding approval of his conversion, he was forced to seek a position outside of the Agency and left the Agency.3
In a final decision, dated October 6, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency stated that Complainant did not identify an individual harm to him. The Agency stated that Complainant did not allege that his conversion was denied, but that the status of the conversion was pending and unknown at the time he asked. The instant appeal from Complainant followed.
On appeal, Complainant stated that it was clear that senior management would not approve his conversion, and he "could not afford to wait until January to see if they would convert [him.]" Further, following the final agency decision, Complainant sought to amend his complaint to allege that the Agency retaliated against him when it denied him a cash award and gave him a performance rating below "Exceptional/Outstanding."4
ANALYSIS AND FINDINGS
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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The record reflects that Complainant was in a temporary appointment that could not last beyond January 7, 2018. Complainant's immediate supervisor, S1, submitted paperwork to convert Complainant's appointment early. Upper management did not deny the request, but had not approved it when Complainant asked about it in July 2017. The matter was pending and Complainant's temporary appointment was still active. Ultimately, Complainant left the Agency before senior management rendered a decision on his conversion and at least two months prior to January 7, 2018. We find that Complainant was not an "aggrieved" employee who suffered a present 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). Complainant failed to state a viable claim.
We note that Complainant's claims of retaliation regarding a cash award and performance appraisal are new claims that should be processed by the Agency in accordance with EEOC Federal Regulation 29 C.F.R. Part 1614.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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. 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
April 6, 2018
__________________
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.
2 On appeal, Complainant stated that his formal complainant indicates "African American," but he identifies more with Hispanic and Creole. We note that the Commission categorizes "Hispanic" as national origin rather than race.
3 The record shows that Complainant no longer worked at the Agency at least two months before the not-to-exceed date of his temporary appointment, January 7, 2018.
4 In a letter, dated October 17, 2017, Complainant asked the Agency to amend the instant complaint. In a letter, dated December 12, 2017, the Agency informed Complainant that it could not amend the instant complaint because the matter was now before the Commission on appeal.
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