U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adah P,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Fish and Wildlife Service), Agency. Appeal No. 0120170966 Agency No. DOI-FWS-16-0457 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 16, 2016, 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. BACKGROUND During the period at issue, Complainant worked as a Visual Information Specialist (Web), GS-9, at the Agency's Region 5 facility in Hadley, Massachusetts. On August 30, 2016, Complainant filed the instant formal complaint. Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female) and age when: on June 17, 2016, the Regional Chief, Web and Multi-Media informed her that he was going to announce a vacancy on USAJOBS to fill the position as Web Manager, GS-11 (1-year temporary position), and that he hoped another individual would apply. In its December 16, 2016 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that since Complainant did not apply for the Web Manager position and the record does not reveal that she was actively discouraged from applying or that the application process was secretive, she was not aggrieved. The record contains a copy of the Regional Chief's email dated June 17, 2016 to Complainant. Therein, the Regional Chief notified Complainant "you will soon see an advertisement for a Temporary promotion opportunity in EA as our Web Manager. This is a 1-year temporary position that we hope [a named male employee] will apply for at the GS-11 level. I know you will see it on USAjobs, but wanted you to know what it was about (and not worry!). It's really more of a digital media strategist position, but we called it Web Manager to keep it simple." The instant appeal followed. Complainant, on appeal, stated that since she received the Regional Chief's email "indicating they were posting the job for [named male employee], I did not apply because I felt the position was intended for him and pre-selected." ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. § 1614.103. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The Agency asserts that Complainant was not aggrieved because she did not apply for the subject position. Generally, a complainant who claims discriminatory non-selection is not sufficiently aggrieved to state a valid claim when she has not applied for the position in question. See Owen v. Social Sec. Admin., EEOC Request No. 05950865 (Dec. 11, 1997). However, the Commission has found that, under certain circumstances, a complainant might be aggrieved by non-selection for a position for which she did not apply where the complainant demonstrates that the Agency discouraged her from applying or the application process was secretive. See Ozinga v. Dep't of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991). Here, we determine that Complainant has satisfactorily articulated a claim that she was in essence foreclosed from applying for the subject position, as it was anticipated that a named male employee would apply and be accepted for it. Given the specific circumstances of this case, we find that Complainant has indeed stated a justiciable claim. Accordingly, we REVERSE the Agency's final decision dismissing the formal complaint, and we REMAND this matter to the Agency for further processing in accordance with 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 June 20, 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 0120170966 5 0120170966