0120181156
07-06-2018
Murray H.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Murray H.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120181156
Agency No. EOI-2017-01004
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 17, 2018, 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
The record reflects the following chronology of events. During the period at issue, Complainant was an applicant for employment with the Agency. On October 4, 2016, Complainant filed a formal EEO complaint, Agency Case No. EOI-2016-01082. Therein, Complainant alleged that he was not selected as an Immigration Judge in one of the following Immigration Courts: Arlington, Baltimore, Miami, and Orlando. On December 14, 2016, the Agency issued its final decision dismissing his formal complaint for failure to state a claim since the hiring process for these positions were still ongoing. Complainant filed an appeal with the Commission's Office of Federal Operations (OFO). In EEOC Appeal No. 0120171071 (April 4, 2017), OFO affirmed the Agency's dismissal reasoning that "[f]rom the record it appears that the Agency is still in the hiring process." Complainant filed a request for reconsideration with OFO and asserted that some of the positions at issue had been filled. In EEOC Request No. 0520170322 (July 20, 2017), OFO denied Complainant's request. Therein, OFO stated "[w]e note that these matters may be new incidents which Complainant did not raise on the instant complaint. If Complainant wishes to pursue these matters through the EEO process, then he should contact an EEO Counselor...Even if these nonselections stem from the claims he raised in the instant complaint, such nonselections occurred, according to Complainant, after he filed the instant complaint, and after the Agency issued its decision dismissing the complaint." EEOC Request No. 0520170322.
On August 4, 2017, after receiving OFO's decision in EEOC Request No. 0520170322, Complainant once again initiated EEO contact. In September 2017, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of age and in reprisal for prior protected EEO activity. In its final decision dated, Janaury 17, 2018, the Agency framed Complainant's claims in the following fashion:
1. On February 6, 2017, [Complainant] became aware that [he was] not selected for an Immigration Judge position with the Arlington Immigration Court; Job Announcement Number EOIR-16-1541393-JC.
2. On April 10, 2017, [Complainant] became aware [he was] not selected for an Immigration Judge position with the Miami Immigration Court, Job Announcement Number EOIR-16-1542684-JC.
3. On or about July 20, 2017, [Complainant] became aware [he was] not selected for an Immigration Judge position with the Baltimore Immigration Court, Job Announcement Number EOIR-16-1541469-JC.
4. On or about July 20, 2017, [Complainant] became aware [he was] not selected for an Immigration Judge position with the Orlando Immigration Court; Job Announcement Number EOIR-16-1542723-JC.2
The Agency dismissed claims (1) and (2) for untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory incident in claim (1) occurred on February 6, 2017, but Complainant did not initiate EEO contact until August 4, 2017. Regarding claim (2), the Agency reasoned that the alleged discriminatory incident occurred on April 10, 2017, but Complainant did not initiate EEO contact until August 4, 2017. The Agency dismissed claim (3) for failure to state a claim reasoning that the Agency decided not to hire anyone for this vacancy. The Agency dismissed claim (4) for failure to state a claim reasoning that the hiring process for this vacancy was still ongoing. Finally, the Agency dismissed Complainant's complaint on the grounds that Complainant had previously raised these matters in a prior complaint and that OFO denied her request for reconsideration.
The instant appeal followed. On appeal, Complainant asserts that he continuously followed up with the Agency regarding the status of his applications for the positions in question. Complainant states after months of waiting and failing to hear from the Agency, he contacted the Agency on a regular basis but was told the Agency could not provide any information. Complainant states it was only after a random internet search in which he found press releases from the Agency, that he realized that some of the positions in question had been filled. Complainant states that the Agency failed to inform OFO during his initial appeal and request for reconsideration that some of the positions at issue had been filled. Regarding claim (3), Complainant asserts that the Agency erred in not considering whether its decision to not make a selection on this vacancy was due to a discriminatory intent against Complainant.
ANALYSIS AND FINDINGS
Claims (1) and (2)
The Agency improperly dismissed claims (1) and (2) for untimely EEO Counselor contact. The Agency in its final decision asserts that the alleged discriminatory incidents for claims (1) and (2) occurred on February 6, 2017 and April 10, 2017. However, the record reflects that Complainant was not aware of the nonselections on February 6, 2017, and April 10, 2017. Complainant states that he was not aware of these nonselections until he did a random internet search and found Agency press releases indicating the positions in claims (1) and (2) had been filled. Complainant then submitted this information to OFO as part of his request for reconsideration for EEOC Request No. 0520170322. OFO records reflects that Complainant sent a copy of this information contained in his request for reconsideration to the Agency (thus, the Agency was on notice that he was trying to pursue these nonselections through the EEO process). Based on the foregoing, we find that Complainant was consistently trying to pursue the nonselections for claims (1) and (2) through the EEO complaint process. The Agency initially dismissed claims (1) and (2), stating that the positions had not been filled. Thus, the Agency was claiming that Complainant's claims at the time were premature. OFO's decision in EEOC Request 0520170322 indicates contacting the EEO Counselor if she wished to pursue these nonselections. Complainant indeed contacted an EEO Counselor on August 4, 2017, shortly after receiving OFO's decision in EEOC Request No. 0520170322. Based on the foregoing, and the specific facts of this case, we find Complainant's EEO contact to be timely.
Claim (3)
We find that the Agency improperly dismissed claim (3) for failure to state a claim reasoning that the Agency decided not to make a selection for this opening. We find that on appeal Complainant is alleging that the Agency decided not to make a selection on this opening in order to prevent Complainant from being selected. On appeal, Complainant asserts that the Agency's decision not to make a selection was done with the intention of discriminating and/or retaliating against Complainant. Generally, when an Agency cancels a vacancy announcement without making a selection, the complainant suffers no personal harm that would render him "aggrieved." See Grace v. Dep't of the Army, EEOC Request No. 05940969 (May 18, 1995). However, when a complainant claims that the vacancy was canceled for a discriminatory motive, and that the cancellation was to avoid giving complainant the position, he does state a claim. See Lall v. Dep't of the Navy, EEOC Request No. 05A00064 (April 24, 2000). Based on Complainant's allegation that the Agency decided not to make a selection from this vacancy due to discriminatory motives, we find that claim (3) states a valid claim.
Claim (4)
The Agency properly dismissed claim (4) for failure to state a claim. The Agency stated in its final decision that the selection for this vacancy remained ongoing. To the extent that the Agency has not yet made a selection on this vacancy, we find that claim (4) fails to state claim. Complainant has not provided sufficient evidence to contest the Agency's assertion that the selection process is ongoing. However, should selections be made in the future for the position at issue in claim (4), Complainant is entitled to file a new complaint if he elects to do so.
Dismissal for Stating the Same Claim
The Agency in its final decision also dismisses Complainant's complaint on the grounds that Complainant previously raised these claims in a prior complaint and that the Commission addressed these matters in EEOC Appeal No. 0120171071 and EEOC Request No. 0520170322. However, in these decisions by OFO we found that selections had not been made and that these matters were premature. In the instant formal complaint, the record reflects that selections have been made for the for the positions set forth in claims (1) and (2). In addition, Complainant is alleging in claim (3) that the Agency decided not to make a selection for the position at issue for discriminatory motives. Based on the foregoing, we find that the matters set forth in claims (1), (2), and (3) are no longer premature and thus, are not the same claims decided in EEOC Appeal No. 0120171071 and EEOC Request No. 0520170322.
We AFFIRM the Agency's dismissal of claim (4). However, we REVERSE the Agency's final decision dismissing claims (1), (2), and (3) and we REMAND these matters to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims (Claims (1), (2), and (3)) in accordance with 29 C.F.R. � 1614.108. 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
July 6, 2018
__________________
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 The Agency noted that its vacancy announcement numbers were previously captured inaccurately and that the vacancy announcement numbers are now listed properly according to USAjobs.gov.
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