0120122055
09-25-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Health Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.
Appeal No. 0120122055
Agency No. JTFCAMED-12-0010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated February 6, 2012, dismissing her 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.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee at the Agency's Bethesda Naval Medical Center facility in Bethesda, Maryland.
Complainant indicated that she had a difficult time finding employment since being forced out of the Agency in December 2008. She applied for at least five positions, but was not selected for them. In July 2011, Complainant contacted a recruiter (Recruiter) for a private employer about the possibility of an EEG Technologist position. She provided her resume to the Recruiter who sounded very positive that a position was going to become available. However, she was later told that she was not eligible for the position. Complainant believed that the Recruiter spoke with her former supervisor (Supervisor) and, as a result, was not considered for the position.
Complainant contacted an Agency EEO Counselor on August 1, 2011. The EEO Counselor attempted to contact the Recruiter, but she had left the private employer. She was referred to another individual who stated that there was no EEG position available at the time Complainant contacted the Recruiter. When the matter was not resolved informally, Complainant was issued a Notice of Right to File her formal complaint.
On December 16, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on July 6, 2010, she was informed that she was deemed not qualified for a position for which she applied with a private employer.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant did not apply for a position with the Agency but with the private employer. Therefore, the Complainant failed to allege a viable claim of discrimination on the part of the Agency.
Complainant appealed asserting that the Agency has prevented her from obtaining employment with other agencies despite her qualifications. She claimed that she was not given one position because of a conversation the selecting official had with the Supervisor. As such, Complainant requested that the Commission reverse the Agency's decision dismissing her complaint.
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 or disabling condition. 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 (Apr. 21, 1994).
Upon review of the record, we find that the Agency improperly defined the claim at hand. Complainant clearly has alleged that the Supervisor provided a bad reference and as a result she has not been selected for positions for which she has applied. In the specific event at hand, Complainant claimed that, in retaliation for her prior EEO activity when she was employed with the Agency, the Supervisor gave Complainant a bad reference to the Recruiter. As a result, she asserted that she was not given an EEG position with the private employer. Therefore, we shall review the Agency's dismissal based on Complainant's claim of retaliation when she believed the Supervisor gave a bad reference to the Recruiter and, as a result, Complainant was not selected for an EEG position.
Generally speaking, a former employee can allege a viable claim of discrimination on the basis of reprisal regarding a bad reference. See e.g. Bimes v. Dep't. of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim). However, here Complainant merely speculated that the Supervisor spoke to the Recruiter and therefore, she was not selected for an EEG position. However, the EEO Counselor spoke to a representative with the private employer who indicated that there was no such position available. As such, there is no evidence that there was a position for which Complainant was not selected. Furthermore, based on the emails provided by Complainant between herself and the Recruiter, there is no indication that the Supervisor was contacted by the Recruiter. As such, we find that Complainant's claim is merely based on speculation and a hunch. Therefore, Complainant has not shown that she has been aggrieved. Accordingly, we find that the Agency's dismissal was appropriate pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 Complainants 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
September 25, 2015
__________________
Date
1 The record indicated that Complainant received the FAD which included the wrong address for the Office of Federal Operations. The Agency provided Complainant with the correct appeal address in March 27, 2012. Therefore, we find that Complainant's appeal dated March 28, 2012, was timely filed.
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