Felix R.,1 Complainant,v.Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2020000132 (E.E.O.C. Dec. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felix R.,1 Complainant, v. Dr. Benjamin S. Carson, Sr., M.D., Secretary, Department of Housing and Urban Development, Agency. Appeal No. 2020000132 Agency No. HUD-000158-2019 DECISION Complainant filed a timely appeal2 with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 27, 2019, dismissing his complaint of unlawful employment discrimination in 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 an applicant for employment at the Agency’s facility in Fort Worth, Texas. On July 24, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age when: (1) on or about May 24, 2019, he learned that he was not selected for the position of Account Executive, GS-13, under Vacancy Announcement Number 19-Hud-348-P; and (2) he became aware in the summer of 2018 that he was not selected for the position of Senior Underwriter in the Fort Worth Office under Vacancy Announcement No. 18-HUD-474-P. 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 The Agency argues Complainant’s appeal is untimely. Complainant submitted proof that he mailed his appeal on September 6, 2019. 2020000132 2 The Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, and claim 2 for untimely EEO counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Here, we concur with the Agency that Complainant failed to allege sufficient facts, which if proven true and considered together, would establish that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Here, the Agency states that a selection for the position in question has not yet been made. Complainant admits in his appeal that he is still considered “referred” in USA Jobs. The Agency, in its decision, informed Complainant that should the position be filled, he may file a new complaint. The complaint, as written, without more, simply does not state a viable claim of discrimination at this juncture. Claim 2 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, Complainant found out in the summer of 2018 that he was not selected for the Senior Underwriter position. Complainant first contacted an EEO counselor regarding his non-selection on May 24, 2019, well beyond the 45-day limitation period. He stated that he first contacted the FHA Commissioner and other individuals concerning his non-selection. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED 2020000132 3 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. 2020000132 4 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 26, 2019 Date