01a53525
05-04-2006
Cora A. Upshaw, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Cora A. Upshaw,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53525
Agency No. 200I-0322-2005100850
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 23, 2005, dismissing 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.
Upon review, the Commission finds that the agency dismissed complainant's
complaint improperly.
During the relevant period, complainant was employed as a GS-10 Veterans
Service Representative at an Alabama facility of the agency. In July
or August 2004, complainant applied for a promotion to a GS-11/12
Rating Veterans Service Representative (RVSR) position. In a letter
dated September 30, 2004, the agency informed complainant that it did
not refer her for final consideration for the position. Subsequently,
on November 17, 2004, the agency chose five selectees to encumber RVSR
positions, effective November 28. In memorandums dated November 18,
2004, the agency informed the candidates, whom it deemed qualified and
referred for consideration for the RVSR position but whom it did not
select, of its selectees. On December 17, 2004, complainant initiated
contact with an EEO Counselor alleging that the agency discriminated
against her based on race (Black) and sex (female) when it failed to
refer her for a GS-11/12 RVSR position.1 Subsequently, on January 28,
2005, complainant filed a formal EEO complaint alleging that the agency
discriminated against her on the bases of race and sex when it failed
to refer and select her for a RVSR position. In her formal complaint,
complainant alleged that the agency compromised its selection process with
"unfair selection procedures, fraternization, and allocating preference
points to veterans during internal merit promotion."
On March 23, 2005, the agency issued a final action identifying
complainant's claim as "[w]hether [complainant] was discriminated against
based on her race (Black) and her sex (female) when on September 30,
2004, she did not rank high enough to be referred for final consideration
for the position of Rating Veterans Service Representative." In its
final action, the agency dismissed the matter for untimely EEO contact
and failure to state a claim. Specifically, the agency averred that
complainant initiated EEO contact more than 45 days from the date she
learned the agency did not refer her for consideration and that its
non-referral and non-selection of complainant are not inter-related
because they involved different management officials. Further, the agency
stated that complainant alleged discrimination based on an inappropriate
application of veterans' preference and such is not within the purview
of the EEO process. Subsequently, complainant filed the instant appeal.
On appeal, complainant stated that she was not aware that the agency
made a selection for the RVSR position until November 17, 2004 and it
was at that time that she suspected discrimination. She asserted that
the non-referral and the non-selection are inter-related. Further,
complainant indicated that the misapplication of veterans' preference
rules is not the sole basis of her complaint and that she also alleged
the bases of race and sex. Essentially, complainant stated that the
agency should not have dismissed her complaint.
The Commission agrees that the agency should not have dismissed
complainant's claim. The agency, in its dismissal of complainant's
complaint, characterized her claim as solely challenging the agency's
non-referral of her for a RVSR position and its use of veterans' status.
First, regarding timeliness, in the formal EEO complaint, complainant
stated clearly that the alleged discriminatory incidents are the agency's
non-referral and non-selection of her for a RVSR position. The record
reveals that the agency selected incumbents for the five RVSR positions
on November 17, 2004 and that complainant initiated contact with an EEO
Counselor on December 17, 2004, which would render her EEO contact timely.
See 29 C.F.R. � 1614.105(a) ("An aggrieved person must initiate contact
with a Counselor...in the case of a personnel action, within 45 days of
the effective date of the action.").
Second, regarding the viability of complainant's claim, the EEO
Counselor's report and the formal EEO complaint indicate that complainant
felt that the agency treated her disparately due to her race and sex.
For example, separate and apart from her concerns about the misapplication
of veterans' preference points, complainant referred to the lack of
racial and gender diversity on selection rating panels. Finally, with
regard to the allocation of veterans' preference points, a fair reading
of complainant's allegations indicate that she has raised a claim that
the agency's practices in this regard are having a disparate impact on
her protected groups. While Title VII provides an affirmative defense to
employers accused of discrimination when implementing the laws creating
special preferences for veterans, this defense would not be available
if the agency was not authorized by law to apply veterans' preference
in the selections at issue. Therefore, investigation of the veterans'
preference issue would be appropriate to determine whether the agency
is entitled to evoke its affirmative defense. See Hall v. Department of
Veterans Affairs, EEOC Request No. 05A51206 (March 23, 2006). For these
reasons, we find that complainant alleged discrimination on the bases
of race and sex in her formal EEO complaint and that non-referral and
non-selection on those bases would render her aggrieved. See generally
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994).
Based on the above, the Commission reverses the final action of the
agency in the instant matter and remands the matter to the agency for
further processing from the point processing ceased.
ORDER (E0900)
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 (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. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 4, 2006
__________________
Date
1 The EEO Counselor's Report indicated that complainant expressed concern
about the racial and gender diversity of the selection rating boards.
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01A53525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
01A53525