[Redacted], Sammy R., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2021003369 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sammy R.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003369 Hearing No. 570-2020-00956X Agency No. ARHQOSA19APR01334 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final action dated March 31, 2021, dismissing his 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for employment at the Agency. On June 18, 2019, Complainant filed a formal complaint alleging that he was subjected to discrimination in retaliation for prior protected EEO activity (April 2014 and May 2016) when: a. On February 8, 2019, he became aware that a position which he was previously referred (Museum Curator) for but not hired by the Agency’s Center of Military History was offered to Selectee A on August 2, 2016.2 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 claims have been renumbered in this decision. 2021003369 2 The Agency accepted claim (a) for processing. Thereafter, Complainant amended his complaint and alleged that the Agency subjected him to discrimination in reprisal for prior protected EEO activity (April 2014 and May 2016) when: b. On December 25, 2019, Complainant became aware that he was not selected for a position he applied for under vacancy announcement number NCHT194503012924RD (Museum Specialist, GS-101-09 at 3rd Cavalry Museum, Fort Hood, TX) when he saw a staff picture on the 3rd Cavalry Museum Facebook page which included the new Museum Specialist. The position was advertised from August 21-26, 2019. c. On August 21, 2019, Complainant received notification that a position he applied for under vacancy announcement number NCHT194503012672D (Museum Specialist, GS- 101-09 at 3rd Cavalry Museum, Fort Hood, Texas) was cancelled and would be readvertised under NCHT194503012924RD. The position was advertised from July 18 - 29, 2019. d. On June 6, 2019, Complainant received notification that a position he applied for under vacancy announcement number NCHT191503011875 (Museum Specialist, GS-101-09 at 3rd Cavalry Museum, Fort Hood, TX) was cancelled. The position was advertised from April 24 - May 6, 2019. The Agency accepted claim (b) for further processing. The Agency dismissed claims (c) and (d) for failure to state a claim. At the conclusion of the investigation on accepted claims (a) and (b), the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. While his Complainant was pending before the AJ, he moved to reinstate dismissed claims (c) and (d) and to add an additional claim: e. On August 22, 2019, Complainant applied for the same vacancy/position - Museum Specialist GS-1016-09 at the 3rd Cavalry Museum duty location Ft. Hood Texas now advertised under USAJOBS Announcement No. NCHT194503012924RD. Complainant was notified by USAJOBS that his application was received on August 22, 2019; however, Complainant was never notified of the status of his application. In response, the Agency noted that amended claim (e) was accepted by the Agency and was already part of the case. The Agency noted it previously dismissed claims (c) and (d) for failure to state a claim. The Agency also argued that claim (c) was untimely as Complainant received notice on August 21, 2019, that the Museum Specialist position he applied for under Vacancy Announcement No. NCHT1945030127672D was cancelled and he did not initiate EEO contact until January 2, 2020. 2021003369 3 The Agency also argued that claim (d) was untimely since Complainant received notification on June 6, 2019, that the Museum Specialist position he applied for under Vacancy Announcement No. NCHT191503011875 was cancelled and he did not initiate EEO Counselor contact until January 2, 2020. Additionally, the Agency argued that claim (a) should be dismissed for untimely EEO Counselor contact since the nonselection for the Museum Curator position occurred in 2016, and Complainant did not contact an EEO Counselor until February 2019. Finally, the Agency argued that claim (b) should be dismissed for failure to state a claim as no selection was made for that vacancy announcement. On March 26, 2021, the AJ issued a Decision and Order on Complainant’s Motion to Amend the Complaint and the Agency’s Cross-Motion to Dismiss the Complaint. The AJ noted the Agency stated it accepted amended claim (e) as part of the complaint. Upon review, the AJ dismissed claims (c) and (d) based on timeliness. Further, the AJ noted that Complainant applied for the two posted positions and both were withdrawn without a selection. The AJ stated Complainant could not have been selected and suffered no harm and thus, also dismissed claims (c) and (d) on the grounds Complainant was not aggrieved by the complained of actions. Next, the AJ addressed the two claims accepted by the Agency. Regarding the Museum Curator position (claim (a)), the AJ noted that in July 2016, Complainant applied for the position. On October 4, 2016, he was advised that “[a]nother candidate was selected for this position.” Complainant initiated EEO Counselor contact on February 21, 2019. The AJ noted the record showed the challenged nonselection occurred years before initial contact was made and the record revealed that Complainant suspected retaliation much earlier than February 21, 2019. The AJ cited to Complainant’s formal complaint in which he acknowledged that at the time of the nonselection in 2016 he had a reasonable suspicion of retaliation. Thus, the AJ found Complainant cannot overcome the timeliness issue and dismissed this claim. Regarding the nonselection for the Museum Specialist position advertised from August 21 - 26, 2019 (claim (b)), the AJ noted Complainant presumed he was not selected for the position when he saw a picture of someone with a title of the position at issue beneath a picture. However, the record showed the position was closed without any selection. Thus, the AJ found Complainant suffered no harm as no one was selected for the position. On March 31, 2021, the Agency issued a final action. The Agency’s final action fully implemented the AJ’s decision. Complainant filed an appeal from the Agency’s final action on April 29, 2021. Complainant did not file a brief in support of his appeal until June 2, 2021. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As Complainant’s brief was filed beyond the applicable limitations period, we will not consider it in our decision. 2021003369 4 ANALYSIS AND FINDINGS Upon review, we dismiss claim (e) pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claim that is pending before or has been decided by the agency or Commission. Specifically, the record reveals that both claim (b) and claim (e) refer to the same nonselection for the Museum Specialist position which was advertised from August 21-26, 2019. 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 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five days of the effective date of the action. Upon review, we find the AJ properly dismissed claim (a) for untimely EEO Counselor contact. The record reveals that Complainant was advised on October 4, 2016, that another candidate was selected for the Museum Curator position, but failed to make EEO Counselor contact until 2019. The record supports the AJ’s conclusion that Complainant had a reasonable suspicion of discrimination regarding his nonselection in 2016. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Additionally, regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for failure to state a claim. Here, we find that the AJ properly dismissed claims (b), (c), and (d) for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). The record reflects that management decided not to select any of the applicants, including Complainant, for the vacancy announcements at issue. Further, we find that Complainant failed to present any evidence that the Agency’s actions in cancelling the vacancy announcements were based on his prior protected EEO activity. CONCLUSION Accordingly, the Agency's final action dismissing Complainant’s complaint is AFFIRMED. 2021003369 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003369 6 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 April 14, 2022 Date