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

Equal Employment Opportunity Commission

Nov 18, 2021

Appeal No. 2021004960 (E.E.O.C. Nov. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Travis S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004960 Agency No. ARBENNING21JUN02015 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 9, 2021, dismissing his 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., 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 worked as a Contract Specialist, Grade GS-12, at the Agency’s Mission Installation Contracting Command facility in Fort Benning, Georgia. On June 17, 2021, Complainant contacted an EEO counselor. The parties did not resolve the matter informally. On July 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), sex (male), color (Black), age (68), and reprisal for prior protected EEO activity (witness in Agency No. ARBENNING14OCT03833) under Title VII when: 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 2021004960 a) On 25 September 2020, Complainant became aware via USAJobs notification he was not selected for vacancy announcement SCEA202332987117, Contract Specialist, GS-12, by Director, Mission and Installation Contracting Command; and b) On 24 May 2021,Complainant became aware via USAJobs notification that vacancy announcement NEAD210073236364, Procurement Analyst Position, GS-12, was cancelled by Director, Mission and Installation Contracting Command. On August 9, 2021, the Agency issued a final decision dismissing the formal complaint. The Agency reasoned that Claim (a) was untimely pursuant to 29 C.F.R. § 1614.107(a)(2), because Complainant had not brought to the attention of an EEO Counselor within 45 days the Agency’s non-selection notification. Regarding Claim (b), concerning the vacancy cancellation, the Agency found that this matter failed to state a claim, and dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. On appeal, Complainant contended that his claims were part of a pattern wherein he was passed-over for promotion to GS-12. Complainant stated that Agency management demonstrated an obvious preference for younger female applicants. Complainant further stated that, although he was more qualified, management had abused technicalities of the selection processes to subject him an individual “glass ceiling” for speaking-out about discriminatory hiring practices. ANALYSIS AND FINDINGS Claim (a): Non-Selection EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that claims of discrimination shall be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of that action. 29 C.F.R. 1614.107(a)(2) mandates that a discrimination complaint that fails to comply with the applicable time limits shall be dismissed. Based on a careful analysis of the record, we find the Agency properly dismissed Claim (a) because the non-selection occurred in September 2020 but Complainant’s contact in June 2021 was untimely. Claim (b): Vacancy Cancellation Under the Commission’s regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106(a) the Agency must accept a complaint from an aggrieved employee states a justiciable claim that he has been subjected to employment discrimination because of EEO-protected characteristics or because of EEO-protected activities. 3 2021004960 Generally, cancellation of a vacancy does not render an applicant aggrieved for purposes of stating a claim. Raheem v. Dep’t of Commerce, EEOC Appeal No. 01A05334 (Aug. 28, 2000). However, in this present case, Complainant accused management of cancelling the vacancy with deliberate intent to avoid selecting him because of race, gender, age and protected activity. Complainant stated that younger less qualified females have been selected for multiple GS-12 vacancies to which Complainant had applied. Taking these circumstances of Complainant alleging the vacancy cancellation was part of an ongoing practice where management targeted him specifically, we conclude that the Agency erred is dismissing Claim (b) for failure to state a claim. CONCLUSION The Commission AFFIRMS the Agency’s dismissal of Claim (a) for untimely EEO Counselor contact in accordance with 29 C.F.R. 1614.107(a)(2). However, the Commission REVERSES the Agency’s dismissal of Claim (b) concerning the vacancy cancellation. Claim (b) is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (Claim (b)) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. 29 C.F.R. § 1614.403(g). 4 2021004960 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to Complainant and his representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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 Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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 5 2021004960 Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M St. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request 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. 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. 6 2021004960 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 November 18, 2021 Date