0120180224
03-27-2018
Sang G.,1 Complainant, v. Rex W. Tillerson, Secretary, Department of State, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sang G.,1
Complainant,
v.
Rex W. Tillerson,
Secretary,
Department of State,
Agency.
Appeal No. 0120180224
Agency No. DOS-0288-17
DECISION
On October 13, 2017, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 13, 2017, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant with a staffing firm to serve the Agency as a Uniformed Protective Officer.
Complainant filed a formal complaint dated August 7, 2017, alleging that the Agency discriminated against him based on his race/color (Caucasian/White) and age (47) when the staffing firm sent false information about him to the Agency, resulting in his not being hired.
When Complainant applied for a position with the staffing firm he worked for the Pentagon Force Protection Agency. According to Complainant, the following occurred. He was interviewed by the staffing firm on June 28, 2017. The interview consisted of 13 questions listed on a Department of State Disclosure Statement. After these questions were asked, the staffing firm called him on the telephone the same day and asked if he was leaving the Pentagon Force Protection Agency under favorable circumstances. He disclosed that he was being fired in retaliation for whistleblowing effective July 14, 2017. The staffing firm replied that he should have disclosed that. He countered that this was not one of the 13 questions asked, but he intended to disclose it on a standard form 86, under the caption "Is there anything you want to disclose that has not been asked."
By email to Complainant dated June 28, 2017, the staffing firm offered him the position of Uniformed Protective Officer, conditioned in part on approval by the Agency. Complainant stated that when he inquired with the staffing firm about his background investigation, it advised that additional information was added to his application after his above telephone conversation, and his application was sent to the Agency for approval. By June 30, 2017, the Agency disapproved Complainant's application. By email to the staffing firm on June 30, 2017, Complainant asked exactly what information it sent to the Agency about him. He elaborated that since he was asked in the interview if he had ever was fired (and he had not been at that point), the staffing firm wrongly accused him of failing to disclose that the Pentagon Force Protection Agency intended to fire him. He asked the staffing firm if it advised the Agency that he failed disclose.
In his complaint, as relief, Complainant asked that the staffing firm send the correct information to the Agency, that two staffing firm members be disciplined, for the hiring process to resume, and for compensatory damages.
The Agency dismissed the complaint for failure to state a claim. It reasoned that since the complaint involved concerns with the staffing firm, the proper defendant was the staffing firm, not the Agency. The instant appeal followed.
Complainant argues that the Agency exercises enough control over the staffing firm and its hiring process to be held accountable for their actions.
ANALYSIS AND FINDINGS
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).
Here, Complainant does not contend that the Agency took any discriminatory action against him or failed to prevent discrimination against him. Given this, we agree with the Agency that his complaint against the Agency fails to state a claim.
The FAD is AFFIRMED.
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 (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
March 27, 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.
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