0120161013
04-21-2016
Darren M.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (Bureau of Land Management), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darren M.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 0120161013
Agency No. BLM-15-0899
DECISION
On January 12, 2016, the Equal Employment Opportunity Commission (EEOC or Commission) received by mail Complainant's timely appeal from a final Agency decision (FAD) dated October 30, 2015, which was delivered to Complainant on January 4, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant wished to apply for a position with Merrick Company, a subcontractor for the Alyeska Pipeline in Anchorage, Alaska.
On September 22, 2015, Complainant filed a formal complaint alleging that Merrick Company discriminated against him based on his race (Indigenous Alaska Native) and reprisal when in May or June 2012, Merrick did not hire him, in March 2014, a Merrick official told him that his company would never accept his application and loudly defamed him by saying this was because he violated Alyeska Pipeline security, and on July 12, 2015, he learned that Merrick again refused to accept or consider his application for seasonal employment on the same ground.2
Complainant contacted an Agency equal employment opportunity (EEO) office in August 2015. In his report, the Agency Director of the Office of Civil Rights wrote that an initial interview was never conducted because Complainant did not cooperate with EEO counseling, Complainant did not respond to written requests or contacts, and he did not complete or return any pre-counseling forms. The Director wrote that Complainant was asked to clarify his claims to include specific dates and bases and why he believed it was discrimination, and he did not respond.
In his complaint, Complaint wrote that the "respondent" was Merrick.
In its FAD, the Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant not an applicant for employment with the Agency. It added that Complainant identified the responsible party as Merrick and did not allege any facts leading to an inference that Merrick Company was a contractor with the Agency.
On appeal, Complainant again refers to the "respondent" as being Merrick, makes no claim that Merrick was a contractor with the Agency or that he applied for employment with the Agency.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed Complainant's complaint for failure to state a claim. EEOC Regulation 29 C.F.R. �1614.103(a) provides that complaints of employment discrimination shall be processed in accordance with Part 1614 of the EEOC regulations. EEOC Regulation 29 C.F.R. � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
Here, there is no indication in the record, nor does Complainant allege, that he was an applicant for a position with the Agency, or a position partly or fully controlled by the Agency.
Applying the above regulation, we find that Complainant's complaint fails to state a claim.
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
April 21, 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 Complainant also discussed events in 2002, but it is not clear this regarded Merrick Company. He also wrote in his complaint that the timely incident occurred in July 2015.
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