COMPLAINANT, v. PETER D. KEISLER, ACTING ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, AGENCY. Request No. 0520070207 APPEAL 0120064115 Agency No. F056050 October 12, 2007 REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in Complainant v. Department of Justice (FBI), EEOC Appeal No. 0120064115 (November 22, 2006). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b). For the reasons set forth herein, the Commission grants complainant's request for reconsideration. BACKGROUND Complainant filed a complaint of discrimination against the agency claiming unlawful retaliation for engaging in protected EEO activity when, on or about May 9, 2005, he was not selected for a contract Special Investigatory position with the Background Investigation Contract Services (BICS) Unit, Personnel Security Investigation Section of the Federal Bureau of Investigation's (FBI's) Security Division. The agency dismissed the complaint for failure to state a claim, finding that complainant was attempting to enter into an independent contractor relationship with the agency, and, therefore, was not an agency employee or applicant for agency employment as required by 29 C.F.R. Part 1614. The agency noted that the Basic Ordering Agreement for the background investigator position explicitly states that the "[c]ontractors are not considered Federal Government employees." In EEOC Appeal No. 0120064115, the Commission affirmed the agency's dismissal of the instant formal complaint for failure to state a claim because complainant was not an applicant for a position as a federal employee. In his request for reconsideration, complainant explains that he was an FBI employee from 1976 until 1998. In 1998, complainant was demoted, which complainant believed was due to his sex. He filed an EEO complaint, and later filed a civil suit to pursue his discrimination claim. According to complainant, the litigation continued until March 26, 2005. During this same time period in 2005, complainant, who had retired from his employment with the agency, applied for the position as a BICS Special Investigator, a job he contends is "the most common post-retirement position sought by retired FBI Agents."Complainant argues that Title VII prohibits an employer from retaliating against a former employee because that employee engaged in protected EEO activity related to his/her employment. Complainant asserts that he should be allowed to proceed with his formal complaint that the FBI's determination to exclude him from its BICS program was in reprisal for his filing an EEO complaint during the period when he was an FBI employee. The agency does not provide any response to the complainant's request. ANALYSIS After a careful review of the record, including complainant's arguments on request for reconsideration, the Commission finds that its previous decision erred when it affirmed the agency's dismissal of the instant complaint for failure to state a claim. Complainant is alleging that the agency retaliated against him for protected EEO activity that he engaged in while an FBI employee by rejecting him for the BICS contract investigator position, a job he contends is commonly held by retired FBI agents like himself. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a case involving a claim of retaliation when a former employer gave an ex-employee a negative job reference, the Supreme Court clarified that the term "employees," as used in the anti-retaliation provision of Title VII, includes former employees. In light of the particular circumstances in this case, we find that complainant has presented a cognizable claim of unlawful retaliation. See also, Machlin v. United States Postal Service, EEOC Appeal No. 0120070788 (March 29, 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); Bimes v. Department of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving the agency's refusal to provide a former employee with post-employment letters of reference states a claim). CONCLUSION Accordingly, complainant's request for reconsideration is granted, and the decision of the Commission in Appeal No. 0120064115 and the agency's final decision are REVERSED and the complaint is REMANDED to the agency for further processing in accordance with the Order set forth below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. ORDER (E0900) The agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission's corrective action is mandatory. The agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the complainant. If the agency does not comply with the Commission's order, the complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The 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. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the 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 the complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See29 C.F.R. §1614.409. COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900) This is a decision requiring the agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: Stephen Llewellyn Executive Officer Executive Secretariat