U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tania O,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180536 Agency No. 1K-304-0018-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 30, 2017, dismissing 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. 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 Tractor Trailer Operator at the Agency's Atlanta Network Distribution Center facility. On July 11, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and age. In its final decision dated October 30, 2017, the Agency determined that Complainant's complaint was comprised of the following claim: On or about February 26, 2017, [he] became aware that [he was] not permitted to bid on any of the Tractor Trailer Operator positions on Job Posting Number 17MV03. The Agency dismissed Complainant's complaint for failure to state a claim. The Agency, in its final decision, reasoned that "[Complainant] opted not to apply for the positions because [he] did not want to lose [his] seniority should he have been selected as a successful candidate. Thus, [he] has failed to show that [he was] harmed because [he has] not identified a position that [he] applied for but [was] not selected. As [Complainant] did not apply for the positions in question and therefore [was] not denied any of these positions, [he] cannot show that he [was] denied any entitlement in relation to a term, condition, or privilege of employment." Final Agency Decision at 3. The instant appeal followed. On appeal, Complainant reiterates his claim that if he applied for the position in question through the E-Reassign process, he would have lost his current seniority if he was the successful applicant. The Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's formal complaint for failure to state a claim. The record contains an affidavit from Complainant that he did not apply for the position in question. Generally, a complainant who claims discriminatory non-selection is not sufficiently aggrieved to state a valid claim when he has not applied for the position in question. See Owen v. Soc. 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 he did not apply where the complainant demonstrates that the Agency discouraged him from applying or the application process was secretive. See Ozinga v. Dep't of Veterans Affairs, EEOC Request No. 05910416 (May 13, 1991). In the instant matter, Complainant has not presented evidence that he was actively discouraged from applying for the position by management or that the application process was secretive. Rather, he acknowledges that he could apply through the E-Career/E-Reassign process. We note that Complainant could have applied for the position through the E-Career process and if he had been selected for the position and his seniority was allegedly changed due to his protected classes, he could have filed an EEO complaint at that time. Based on the foregoing, we find the Agency properly dismissed Complainant's complaint for failure to state a claim. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 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 (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 (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 April 25, 2018 __________________ 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 0120180536 4 0120180536