U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eryn M.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency. Appeal No. 0120152545 Agency No. 15-00030-01985 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated June 30, 2015, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Branch Administrative Assistant, GS-06, Step 10, in the Agency's Strategic Systems Program at the Navy Yard facility in Washington, D.C. Believing that she was subjected to unlawful discrimination, Complainant contacted an EEO Counselor on April 29, 2015. Informal efforts to resolve Complainant's concerns were unsuccessful. On June 9, 2015, Complainant filed a formal complaint based on race, age, and in reprisal for prior protected EEO activity. The Agency framed the claims as follows: 1. On May 3, 2015, Complainant received a mid-year performance appraisal from her former supervisor [CDR W] that reflected a Career Stage rating of "entry" instead of "expert". 2. On April 16, 2015, Complainant's current supervisor [CDR C] changed her performance objectives. 3. On or about April 27, 2015, Complainant was not selected for the contractor Executive Assistant position which supported the Technical Director In the instant final decision, the Agency dismissed the formal complaint. The Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant previously received and acknowledged the "entry" rating for the 2014 performance cycle, and again, when her 2015 performance objectives were established and agreed upon on December 18, 2014. The Agency found, however, that Complainant did not question the rating and raise it with the EEO Counselor until April 29, 2015. Regarding claim (2), the Agency found that Complainant failed to state a claim as she did express how she was harmed. Further, the Agency noted that while a new appraisal system was introduced, the objectives remained the same. The Agency also dismissed claim (3) for failure to state a claim. According to the Agency, the position at issue was filled by contractor personnel. The Agency found that, because Complainant did not apply to the position, and that she did not allege that the Agency discouraged her from doing so or hid the application process, she did not suffer a harm or loss. Finally, the Agency dismissed the entire formal complaint for abuse of process. Complainant filed seventeen complaints since 2003, most of which, according to the Agency, involved similar or identical claims. In particular, the Agency noted that claim (3) was "nearly identical to a non-selection claim of two prior complaints." Additionally, the Agency observed that Complainant filed a complaint regarding her performance rating "nearly every year since 2007." Complainant is "trying to 'clog' the EEO system at the Department of Navy." 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). On appeal, Complainant contends that she has not been promoted since June 2000. Complainant specifically argues that she and three other African-American GS-06 Secretaries have been with the Agency for over 15 years, and are "ripe for promotion." Complainant asserts, however, that the Agency hires Contractor Administrative Personnel at SSP level (equivalent to GS-06 Secretary) as Executive Assistants (EAs). Complainant and the other experienced African-American secretaries then train these individuals who are then promoted to management and program analyst positions. Most recently, Complainant describes a vacant GS-08 secretary position that resulted when a white employee retired. Complainant states that, rather than promote Complainant, the Agency non-competitively placed a contractor employee into the position. Further, with respect to the "entry" level rating, Complainant believes it was done deliberately, to "adversely affect her chances of promotion and bonuses." Based on a review of the record, we find that a fair reading of the instant formal complaint addresses the denial of a promotion to the vacant GS-8 secretary position. Complainant's concerns regarding the allegedly intentional rating of "entry", new objectives, and history of filling positions with contractor personnel are background and supporting evidence regarding the promotion matter. Complainant is alleging that the Agency is filling the position with contractors to prevent her from being placed in the position. Generally, where Complainant fails to apply for a position she fails to state a claim. See Hailer v. Dept. of the Air Force, EEOC Appeal No. 01A40961 (March 12, 2004). However, Complainant may still maintain a discrimination claim even if he or she failed to properly apply for a position, if it can be proven that he or she was discouraged from applying by the agency or that the application process was informal and secretive. Yartzoff v. Thomas, 809 F.2d 1371, 1374 (9th Cir. 1987); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984); Ferguson v. du Pont Co., 560 F. Supp. 1172, 1192-1193 (D. Del. 1983). We find this to be the case in the matter before us. Complainant was unable to apply or be placed in the GS-8 position because the Agency was filling the higher level vacancies with contractors. Complainant's complaint, as framed above, alleges a personal loss or harm and renders Complainant an "aggrieved" employee. Finally, we consider the Agency's dismissal on the grounds of abuse of process. This Commission has the inherent power to control and prevent abuse of its orders and processes and procedures. See Buren v. United States Postal Service, EEOC Request No. 05850299 (November 18, 1985). The procedures contained in Commission regulations provide the process by which claims of discrimination are processed in the Federal sector, with a goal of eliminating or preventing unlawful employment discrimination. The procedures set forth should not be misconstrued as substitutes for either inadequate or ineffective labor-management relations or an alternative or substitute for labor-management dispute resolution procedures. Sessoms v. United States Postal Service, EEOC Appeal No. 01973440 (June 11, 1998). EEOC Regulations provide for dismissal of complaints that are part of a "clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination." 29 C.F.R. § 107(a)(9). The criteria required to justify dismissal for abuse of process, as set forth in Commission decisions, must be applied strictly. Id. These criteria require:(i) Evidence of multiple complaint filings; and(ii) Claims that are similar or identical, lack specificity or involve matters previously resolved; or(iii) Evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative processes or overburdening the EEO complaint system. On rare occasions, the Commission has applied abuse of process standards to particular complaints. Occasions in which application of the standards are appropriate must be rare, because of the strong policy in favor of preserving a complainant's EEO rights whenever possible. See generally Love v. Pullman, Inc., 404 U.S. 522 (1972); Wrenn v. Equal Employment Opportunity Commission, EEOC Appeal No. 01932105 (August. 19, 1993). In the instant case, the Agency states that complainant has filed 17 complaints over the last twelve years, she has previously filed non-selection claims, and files a complaint regarding her performance rating "nearly every year since 2007." Complainant's actions have not been shown to be so egregious as to justify the extreme sanction of cutting off her access to the EEO process. See Kessinger v. United States Postal Service, EEOC Appeal No. 01976399 (June 8, 1999)(filing hundreds of EEO complaints, including scores of duplicate complaints "evidenced an intent to 'clog' the EEO system" and warranted dismissal for abuse of process.) We conclude that the case for dismissal for abuse of process under 29 C.F.R. § 1614.107(a)(9) has not been made. CONCLUSION The Agency's final decision to dismiss the formal complaint was improper, and is REVERSED. The formal 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) 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 77960, Washington, DC 20013. 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. See 29 C.F.R. § 1614.409. 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 (Nov. 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 (R0610) 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 (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 January 19, 2016 __________________ 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152545