0120162485
01-30-2017
Kyle S.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kyle S.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120162485
Agency No. 166133101770
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 1, 2016, dismissing a formal complaint alleging 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
During the period at issue, Complainant was placed by a contracting company ("Contractor 1") as a Reprographics Specialist at the Agency's Naval Surface Warfare Center, Panama City Division in Panama City, Florida.
Contractor 1 had a three-year contract with the Agency. At the end of the contract, the Agency converted the position Complainant had held to a government civil service position and, on March 7, 2016, placed another former contract employee ("E1") (Caucasian female) in it through the Schedule A hiring process. According to Complainant, when the contract he was working under expired and a new contract was awarded to another company ("Contractor 2"), Contractor 2 indicated Complainant would be hired and retained in the position he had held with Contractor 1. However, it later did not hire him because the position had been converted to a government position.
On June 13, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), color (Black) and sex (male) when:
1. A former contracting employee ("E1") was provided secretive information about the availability of, and hired for, the Reprographics Specialist position in Code 1032, by the Branch Head Code 1032, which Complainant held when it was in contractor status for Contractor 1, while it was being converted to a government civilian position with Complainant still performing the contractor job.
2. E1 was afforded the knowledge, ways and means to obtain the government civilian position through the Schedule A hiring process, with direct assistance from the Branch Head, who was in charge of establishing the government civilian position and making the selection of E1 for the Reprographics position.
3. E1 was instructed by the Branch Head to keep the hiring process quiet, and not to discuss it with anyone, for fear of Complainant finding out; however, Complainant u allegedly overheard about this matter during a discussion between the Branch Head and E1.
4. E1 was shown favoritism by the Branch Head.
5. The Branch Head inappropriately discussed his feelings about how Complainant's contractor, Contractor 1, treated their employees with low pay and lack of training.
6. Complainant was openly harassed by E1, with her constant attempts to undermine Complainant's abilities to perform his duties, in order to gain greater favorability in the eyes of the Branch Head, who would eventually be the one to assist E1 in getting in position to be hired, hire her and become her supervisor.
7. Complainant was disparaged regularly by E1 in her conversations with the Branch Head in her attempt to gamer greater favorability in the eyes of the one who would eventually be the one to help her get in position to be hired, hire her and become her supervisor>
8. Pre-selection for the Reprographics Specialist position was at play, in order for the Branch Head to keep Complainant from being able to apply for the position Complainant was performing as a contractor, with the Branch Head knowing the facts of what was happening with his job in advance of when it was actually happening, and him knowing he had already encouraged and hired E1 for the position, affording her the inside track opportunity to go through the Schedule A hiring process unimpeded, and purposefully waiting to notify Complainant of his job being eliminated with the new contract, only after the hiring process for the government civilian position had been completed with E1.
On July 1, 2016, the Agency issued its dismissal of Complainant's formal complaint. The Agency determined that Complainant had no standing to file an EEO complaint as he was not an employee of the Agency. Accordingly, the Agency dismissed Complainant's EEO complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
The instant appeal followed.
ANALYSIS AND FINDINGS
The matter before us is whether the Agency properly dismissed the formal complaint for failure to state a claim on the basis that Complainant was not its employee. 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 � 1614.103(c) provides that within the covered departments, agencies and units, Part 1614 applies to all employees and applicants for employment.
We find that the essence of Complainant's claim is that the Agency, through the named responsible management officials, intentionally prevented him from becoming an applicant for the position he had held as a contractor once it was converted to a federal civil service position. Moreover, he alleged that this was done because he would have been the best qualified candidate because he had successfully performed in the position in question for the past three years. Finally, Complainant alleges that the named officials were motivated by discriminatory animus when taking these actions in order to favor a Caucasian woman.
In making such a claim, Complainant has standing to use the 29 C.F.R. Part 1614 complaint process to allege he was discriminated against as an applicant for federal employment. The Commission has long held that, generally, a claim of discriminatory non-selection fails to state a claim when the complainant has not applied for the position. See Owen v. Social Security Administration, EEOC Request No. 05950865 (December 11, 1997). However, when a complainant claims that the agency discouraged him from applying, or that the application process was secretive, in order to avoid giving the position to him for discriminatory reasons, he does state a claim. See Ozinga v. Department of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991); Lall v. Department of the Navy, EEOC Request No. 05A00064 (April 24, 2000). Here, this is precisely what Complainant has alleged in his complaint.
Accordingly, we find that Complainant has stated a viable claim of discrimination as an applicant for federal employment and is entitled to bring that claim under the 29 C.F.R. Part 1614 EEO complaint process.
The final decision dismissing the complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following ORDER.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
Carlton M. Hadden, Director
Office of Federal Operations
January 30, 2017
__________________
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.
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