____________________, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120103411 Agency No. ARTACOM09NOV05684 DECISION Complainant filed a timely appeal with this Commission from an Agency decision, dated July 15, 2010, pertaining to 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405. BACKGROUND Complainant is a former agency employee who worked for the agency from 1985 until his retirement in January 2009. Specifically, he was a Logistics Management Specialist at the Agency's Tank-Automotive and Armament Command (TACOM) in Warren, Michigan. During his time with the agency Complainant engaged in protected EEO activity, including the filing of several formal EEO complaints. Following his retirement from the Agency, Complainant began working for Booz Allen Hamilton (BAH), a sub-contractor providing services for the Agency as part of the Abrams Government Furnished Material (GFM) Program. On August 7, 2009, BAH issued Complainant a letter of termination. Believing that an Agency official recommended his removal in retaliation for his prior EEO activity, Complainant contacted the EEO office. Informal efforts to resolve his concerns were unsuccessful. Subsequently, Complainant filed a formal complaint based on reprisal. The Agency framed the claim as follows: On August 7, 2009, your employer, Booz, Allen, Hamilton issued a letter of termination; you believe [Employee T], an employee at HQ TACOM Life Cycle Management Command (LCMC) recommended your removal. In its decision, the Agency dismissed the complaint for failure to state a claim. The Agency reasoned that "[b]ased on information obtained regarding your employment status with [BAH], it was determined that you do not have an employee-employer relationship, and therefore are not a covered Army 'employee'." Complainant filed the instant appeal. 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). 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). As noted above, the Agency reasoned that Complainant failed to state a claim because he was not an agency "employee or applicant for employment". Instead, Complainant worked for BAH. To determine whether a complainant was an agency employee or applicant for employment within the meaning of Section 717(a) of Title VII of the Civil Rights Act of 1964, an amended, 42 U.S.C. 2000e-16(a) et seq. the Commission has applied the common law of agency test. See Ma v. Dep't of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998) (citing Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992)). However, in the instance case, such analysis is unnecessary. Complainant is alleging that the Agency retaliated against him for protected EEO activity that he engaged in while an Army employee by requesting that he be removed from his BAH contractor position. We find that he has presented a cognizable claim. See Doyle v. Department of Justice, EEOC Request No. 0520070207 (October 12, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the agency). The Commission has held that former employees have standing to file EEO complaints. See Sternberg v. Department of Defense Dependents Schools, EEOC Request No. 05890976 (January 9, 1990); Simpkins v. United States Postal Service, EEOC Appeal No. 01985154 (December 3, 1999). Commission precedent is consistent with Federal court cases which have held that a strict and narrow interpretation of the word "employee to exclude former employees would undercut the remedial purposes of the discrimination statutes which are to furnish a remedy against an employer's use of discrimination in connection with a prospective, present or past relationship." Pantchenko v. C.B. Dodge Co., 581 F.2d 1052, 1055 (2d Cir. 1978). The Commission has further held that "former employees frequently have standing to challenge agency actions that presently affect them and for which remedial action would be available if they prevailed on their complaints." Laborde v. United States Postal Service, EEOC Request No. 05910521 (July 25, 1991). In the matter presently before us, the Agency allegedly requested that BAH terminate Complainant from his project position in reprisal for his prior EEO activity. This is akin to refusing to provide post-employment letters or offering negative job references to prospective employers on behalf of former employees, actions violate the anti-retaliation provision of Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Lastly, we note that the Commission has previously addressed the merits of similar cases. See Long v. Tennessee Valley Authority, EEOC Appeal No. 01A31805, (September 27, 2004).1 The Agency in the instant case erred in dismissing the complaint for failure to state a claim. CONCLUSION Accordingly, the agency's decision is hereby REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the Order below. ORDER (E0610) The Agency is ordered to process the remanded claims 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 becomes final. 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 becomes final, 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations December 14, 2010 __________________ Date 1 In Long, Complainant was a long-time agency employee who was terminated by a reduction in force. Thereafter, he worked for General Electric doing temporary jobs as a commissioning manager. GE offered the complainant a job on a TVA project, but later was told by the agency that he was considered a "persona non gratis" and could not be used on agency projects. Consequently, GE did not allow him to work until he was assigned to a project out of the state. Ultimately, the Commission found that the complainant was subjected to unlawful retaliation. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120103411 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120103411