0120162792
12-16-2016
Christopher N.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Christopher N.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120162792
Agency No. 9R1M16063
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 10, 2016, dismissing his complaint of unlawful employment discrimination alleging a violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a retired annuitant seeking employment at the Agency's facility at Robins Air Force Base, Georgia.
On July 12, 2016, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of age when, on March 20, 2016, he became aware he was not referred for an Aircraft Worker, WG-8852-08 position on Vacancy ID No. 1615159.
On August 10, 2016, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that on May 16, 2016, he was notified that he was tendered a tentative job offer for the position under the same vacancy announcement. The instant appeal followed
ANALYSIS AND FINDINGS
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).
Here, while the Agency dismissed the complaint on the grounds of failure to state a claim, we find that it is more appropriate to determine whether or not it was rendered moot and should be dismissed under 29 C.F.R. � 1614.107(a)(5). To determine whether the issue raised in Complainant's complaint has been rendered moot, we must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
Here, complainant has alleged discrimination when he was not referred for consideration to be hired for an Aircraft Worker position. However, we find that the fact the Complainant was later tendered a job offer for the position under the same vacancy announcement renders his claim moot as this event has removed any effects of the alleged discrimination. Complainant has not alleged any definable harm occurred to him between the time he learned he was not referred and when he was tentatively offered the position.2
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
December 16, 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.
2 On appeal, Complainant has claimed that in August 2016, after he completed the onboarding process for the position in question, he was notified that he was being "passed over" for the position pursuant to Department of Defense policies and procedures on reemploying annuitants. Complainant claimed this occurred in retaliation for the instant EEO complaint. However, it does not appear that Complainant sought EEO counseling on this matter or attempted to amend his pending complaint to add the retaliation claim. Therefore, as this matter has been raised by Complainant for the first time on appeal, we decline to consider it.
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