0120152735
01-19-2016
Man H.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Man H.,1
Complainant,
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120152735
Agency No. 2015-26204-FAA-04
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 28, 2015, dismissing a formal 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was a job applicant for positions with the Agency's Federal Aviation Administration, Great Lakes Regional Office in Des Plaines, Illinois. At the time, he was an employee of another federal agency. The record shows he submitted on-line applications for the positions in question.
On March 24, 2015, Complainant initiated EEO counselor contact with the Agency. Informal efforts to resolve his concerns were unsuccessful.
On July 6, 2015, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination on the bases of race (Asian), national origin (Indian), religion (Muslim), and age (57) when:
1. on March 2, 2015, he learned that he was not selected for the position of Civil Engineer, FV-0810-1, advertised under Vacancy Announcement No. AGL-ARP-14-0025-36744; and
2. in August 2014, he learned that he was not selected for the position of Civil Engineer, FV-0810-J, advertised under Vacancy Announcement No. AGL-ARP-14-0025-36746.
In its June 15, 2015 final decision, the Agency dismissed claim 1 for failure to state a claim, pursuant to 29 C.F.R. 1614.107(a)(1). Specifically, the Agency determined that the selection process for the position was cancelled without a selection.
The Agency dismissed claim 2 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 24, 2015, which it found to be beyond the 45-day regulatory limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to state a claim (claim 1)
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency dismissed the claim because ultimately no selection was made for the position in question. Generally, when an Agency cancels a vacancy announcement without making a selection, the complainant suffers no personal harm that would render him "aggrieved." See, Van Nest v. Department of the Army, EEOC Request No. 05940969 (May 18, 1995); Lester v. Department of the Army, EEOC Appeal No. 0120132195 (September 9, 2013). In this case, Complainant does not dispute the Agency's claim that the vacancy announcement was cancelled and no selection was made. While not altogether clear, it appears that Complainant believes he was eliminated from consideration even before the cancellation due to the fact that he was notified he was not selected within 72 hours of the closing of the vacancy announcement. It appears from the EEO counseling report that he may be correct about when he was eliminated from consideration because interviewed Agency officials confirm that the computerized application system determined Complainant did not meet the basic qualifications for the position due to his answers on his application form. While this would be relevant in a determination on the merits of Complainant's discrimination claim, those merits will not be reached because the Agency properly dismissed the claim in this case because ultimately no selection was made. In sum, Complainant has not alleged that he suffered any personal harm or loss sufficient to render him aggrieved because no one was selected for the position in question.
Untimely EEO contact (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 personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory event (non-selection under Vacancy Announcement No. AGL-ARP-14-0025-36746) occurred in August 2014, but Complainant did not initiate contact with an EEO counselor until March 24, 2015, well beyond the 45-day limitation period. Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed claim 2 on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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
January 19, 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.
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