U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erika H.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120162843 Agency No. ARBENNING16MAY02050 DECISION Complainant timely appealed to this Commission from the Agency's August 9, 2016 dismissal of her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cook in the Nutrition Care Division of the Martin Army Community Hospital in Fort Benning, Georgia. On or around July 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity (March and May 2015) when: On May 3, 2016, the Supervisor of the Nutrition Care Division told her that she had been selected for a permanent position, and after numerous months two other employees were made permanent and she was told that she would have to apply for a permanent position. In January 2015, Complainant accepted a position as a Cook for an initial term of 1 year. As a term employee, Complainant continuously sought a permanent position as a Cook (GS-6) with the Agency, but was passed over multiple times. The Management Officials responsible for selecting applicants for full time permanent Cook (GS-6) positions were the Supervisor and the Non-Commissioned Officer in Charge ("NCOIC") of the Nutrition Care Division ("M1" and "M2"). Complainant alleges that M1 and M2 showed preferential treatment by hand selecting and assisting (usually male) term cooks with the application process. In March and May of 2015, Complainant named M1 and M2 in two EEO complaints alleging discriminatory hiring. During the relevant time frame for the instant complaint, Complainant's first line supervisor ("S1") heard some of the Human Resources ("HR") employees responsible for processing hiring applications talking about how "awful" Complainant was, in a manner Complainant alleges related to her prior EEO activity. Concerned this would impact Complainant's ability to obtain a permanent position, Complainant and S1 both told M2, who they allege took no action. On or around April 28, 2016, M2 allegedly spoke with HR and confirmed that three new vacancies for permanent Cook (GS-6) positions were "good to go." M2 told Complainant that she would be awarded one of the positions, effective May 1, 2016. The other two would go to two of her (male) coworkers ("C1" and "C2"). M1 also called Complainant and informed her about the permanent position. S1 was also notified that Complainant, C1 and C2 would all be converted to permanent positions. Shortly afterward, M2 Contacted Complainant and informed her that her paperwork did not go through, and she would have to compete for the position by reapplying to it online rather than as a direct hire. Complainant then learned that a panel of her peers, managers and HR was to be convened to interview individuals interested in the permanent Cook (GS-6) position Complainant had been promised. According to S1, this would be the first use of a panel to hire a Cook (GS-6) in 6 or 7 years. He believed its purpose was to allow HR to select C2, but not Complainant without appearing discriminatory. S1, aware that Complainant had been promised a position, spoke with M1 and M2 without any results. S1 believed they were not observing Agency hiring protocol, so he brought Complainant to meet with the Deputy Commander of Nursing. According to Complainant, the Deputy Commander "put a stop to" the panel and ordered M2 to hire Complainant to the permanent Cook (GS-6) position as promised. On May 25, 2016, Complainant raised the instant matter as an EEO complaint. On June 3, 2016 she received an initial offer letter for a permanent full time Cook (GS-6) position, which she accepted. Complainant was converted to permanent status on June 26, 2016. The Agency dismissed the complaint under 29 C.F.R. §§ 1614.107(a)(1) and 1614.107 (a)(5), reasoning that the matter was moot once Complainant was converted to a permanent employee.2 ANALYSIS AND FINDINGS EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant's complaint are moot, the fact finder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep't of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. It is well established that a rescinded employment offer addresses a claim of personal injury or harm to a term, condition, or privilege of employment for which there is a remedy. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141044 (Dec. 18, 2014) (citing Ali v. Dep't of Homeland Security, EEOC Request No. 0120101042 (Jun. 17, 2010)). The record indicates regardless of the official practice, it was standard in Complainant's facility for M1 and M2 to fill vacancies for permanent Cook positions by hand-selecting a candidate from among term cooks. In the instant case, management personally informed Complainant and two male term cooks, C1 and C2, that they were selected for permanent employment effective May 1, 2016. That C1 and C2 were converted to full time employees under the conditions promised, and Complainant was allegedly asked to reapply and compete with other candidates after being promised the same position, indicates (among other things) that the employment offer from M1 and M2, identical to that provided to C1 and C2 had been rescinded. Hence, Complainant established that she is an "aggrieved employee." The Agency erred in finding Complainant's claim rendered moot once she was hired as a permanent full time Cook (GS-6) effective June 26, 2016. Here, Prong 1 of the mootness analysis is satisfied, as it can be said with assurance that there is no reasonable expectation that the alleged discriminatory action, rescinding an offer for position Complainant now holds, will recur. However, the Agency has not demonstrated that interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination, as is necessary to satisfy Prong 2 of the analysis. Complainant's claim relates to a direct hire position with an effective date of May 1, 2016. She was not converted to a permanent position for nearly two more months. The delay represents a harm to a term, condition, or privilege of employment (e.g. seniority, retirement, leave accrual, income differential) for which there is a remedy. Complainant provided a list of evidence in her formal complaint sufficient to raise a question of whether the Agency's rationale for its actions was pretext for discrimination. Specifically, her formal complaint alleges deliberate attempts by the Agency to avoid converting Complainant to permanent status, including its decision to convene a panel for the selection process. Complainant also cites instances where the selecting officials, HR and M1, make negative comments about her, which she attributes to her prior EEO complaints; and M2's failure to act when both Complainant and S1 reported the comments to him. A significant portion of these allegations are supported by witness statements within the Counselor's report. After a thorough review of the record, we find Complainant provided sufficient evidence to warrant an investigation. We note that on appeal, Complainant alleges that she has been subject to an ongoing hostile work environment. Complainant provides one example of a Lieutenant singling her out in front of her colleagues, and applying different standards to Complainant than that of her colleagues. According to Complainant on appeal, "this seems to happen quite often." A review of the record reveals that the only negative actions in Complainant's formal complaint by management and coworkers toward Complainant appear to be pretext allegations for the instant complaint. Therefore, Complainant is advised that if she wants to pursue, through the EEO process, the additional claims she raised for the first time on appeal, she must initiate EEO counseling. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E1016) 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 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. 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 (M0416) 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 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. The requests 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 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 February 7, 2017 __________________ 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 On Appeal, the Agency raised alternate grounds for dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), arguing that Complainant filed her formal complaint after the deadline to file had passed. We decline to consider this argument because it was not discussed in the Agency's August 9, 2016 dismissal, depriving Complainant an adequate opportunity to respond. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162843 2 0120162843 8 0120162843