0120141502
09-14-2016
Raquel T.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raquel T.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Appeal No. 0120141502
Agency No. FD13002
DECISION
On March 2, 2014, Complainant filed an appeal with this Commission from the Agency's final order dated April 8, 2014, adopting an EEOC Administrative Judge's (AJ's) decision dismissing her 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.2 For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a job applicant at the Agency's New York Field Detachment office in Rochester, New York. Complainant applied for an Auditor position, under Job Vacancy Announcement Number D-DCAA-FD-78004-13. This position required a Top Secret Sensitive Compartmental Information clearance, which necessitates that the incumbent's immediate family members be citizens of the United States.3 During the hiring process, the Agency learned that Complainant's mother held Canadian citizenship. On May 21, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of national origin (US and Canadian citizenship) when she was informed that she was not eligible for the position on February 4, 2013.
On June 7, 2013, Complainant moved for class certification on this matter, and submitted a brief in support of class action certification on December 3, 2013. The Agency filed an opposition brief on January 9, 2014. The AJ provided the parties with copies of Espinoza v. Farah Mfg Co., Inc. 414 U.S. 86 (1973), and requested that the parties provide their respective positions regarding the decision. Complainant provided comments, while the Agency chose not to respond.
On February 18, 2014, the AJ issued a decision finding that the Commission lacked subject-matter jurisdiction over Complainant's complaint, and as such, the class certification was moot. The AJ found that the Supreme Court held that "nothing in the Act [Title VII] makes it illegal to discriminate on the basis of citizenship or alienage." Id., at 95. Additionally, the AJ noted that the Supreme Court found that national origin is considered synonymous with ancestry, while citizenship implies only those minimal requirements that make up actually being a citizen of a country; and that the distinction is strengthened in noting that the federal government denies employment to non-citizens, while expressly prohibiting discrimination based on national origin. Id., at 89.
In responding to Complainant's specific arguments, the AJ determined that the Immigration Reform and Control Act of 1986 (IRCA) is not an amendment to Title VII, and that the Commission does not have jurisdiction to enforce provisions in the IRCA. Additionally, the AJ found that citizenship does not necessarily imply national origin, just as national origin does not necessarily imply citizenship. The AJ also found that Complainant made arguments that would only be relevant after establishing the Commission's jurisdiction.
In regards to Complainant's amendment to include a basis of discrimination under the Genetic Information Nondiscrimination Act of 2008 (GINA), the AJ found that Complainant did not provide any evidence to show that she, or any of her family members, was subjected to genetic tests, or was required to provide medical histories as part of the application process. Accordingly, the AJ denied Complainant's motion to amend.
The AJ concluded that the Commission lacked subject-matter jurisdiction over Complainant's claim that she was discriminated against based on national origin when on February 4, 2013, she was notified that her employment application was rejected due to the Agency's security protocol. The Agency issued its final order fully adopting the AJ's decision.
Complainant filed the instant appeal, and submitted a brief in support of her appeal. The Agency submitted an opposition brief on May 23, 2014.
CONTENTIONS ON APPEAL
Among other things, Complainant argues that the Agency "seems to be hiding behind the subtle differences between national origin and citizenship, because both are the same in this instance." Additionally, Complainant alleges that "one can assume genetics from both national origin and citizenship information, without the need for a blood test."
In response, the Agency states that it did not deny consideration for Complainant's employment based on her mother's country of birth, but rather, her mother's country of citizenship. The Agency also states that the Supreme Court held in Espinoza that "Congress did not intend the term 'national origin' to embrace citizenship requirements."
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
National Origin
We note that with respect to Complainant's claim of discrimination based on national origin, the term "national origin" does not include citizenship. See Espinoza, supra. We also note that the Commission defines national origin discrimination as including, in pertinent part, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin. 29 C.F.R. � 1606.1. While Complainant argues that national origin and citizenship are the same, we find that the Supreme Court has clearly decided that there is a distinction between the two. In this case, the Agency's decision to cease Complainant's application process was based on her mother's citizenship. Therefore, because citizenship is not a protected basis under Title VII, we find that the AJ properly found that the Commission lacks jurisdiction for Complainant's complaint.
Genetic Information
Title II of GINA prohibits employers from discriminating against any employee because of genetic information with respect to the employee. 29 C.F.R. � 1635.1. Genetic information means information about (i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii) the manifestation of a disease or disorder in family members of such individual (family medical history). 29 C.F.R. � 1635.3(c). The Commission concurs with the AJ's dismissal of genetic information as a basis of discrimination because there is no indication that the Agency made any employment decisions based on Complainant's, or any of her family members', genetic information.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's decision. We find that the AJ properly found that the Commission lacks subject-matter jurisdiction over Complainant's claim that she was discriminated against based on national origin when on February 4, 2013, she learned that she was no longer being considered for the Auditor position; and, therefore, the class certification was moot.
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 (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
___9/14/16_______________
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 While we note that Complainant's March 2, 2014, appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on April 8, 2014.
3 See Intelligence Community Directive Number 704: Personnel Security Standard and Procedures Governing Eligibility for Access to Sensitive Compartmented Information and Other Controlled Access Program Information (Effective October 1, 2008).
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