0120082062
04-23-2010
Joseph Ponisciak, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Joseph Ponisciak,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120082062
Hearing No. 170-2005-00312X
Agency No. 03-0062-SSA
DECISION
On March 27, 2008, complainant filed an appeal concerning his equal
employment opportunity (EEO) complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission MODIFIES the agency's final order.
ISSUES PRESENTED
(1) Whether the EEOC Administrative Judge's (AJ) decision, finding that
complainant was not subjected to discrimination in reprisal for his prior
protected EEO activity is supported by substantial evidence in the record;
(2) whether one of complainant's claims states the same claim that
has been decided by the Commission; (3) whether the AJ properly denied
complainant's motions and his requests for a supplemental investigation;
and (4) whether the AJ erred in issuing summary judgment on three of
complainant's claims.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Post Entitlement Technical Expert (PETE) at the agency's
Disability Quality Branch, Regional Office of Quality Assurance in
Philadelphia, Pennsylvania. On October 16, 2002, complainant filed an EEO
complaint that was subsequently amended multiple times. Complainant's
complaint and amendments alleged that he was discriminated against in
reprisal for prior protected EEO activity arising under Title VII when:
(1) He was not selected for the following positions:
a. Social Insurance Specialist, GS-105-11/12, advertised under Vacancy
Announcement Number (VAN) 2002-028;
b. Claims Authorizer, GS-105-09/11, advertised under VAN 2003-082;
c. Operations Specialist, GS-301-11, advertised under VAN 2003-160;
d. Program Analyst, GS-343-11/12, advertised under VAN 2002-087;
e. Social Insurance Specialist, GS-105-11/12, advertised under VAN
2002-195;
f. Social Insurance Specialist (Disability), GS-105-11/12, advertised
under VAN SA158515 and VAN RQ-NT-02-0201;
g. Social Insurance Specialist, GS-105-11/12, advertised under VAN
ROQANTA-3017;
h. Social Insurance Specialist, GS-105-11/12, advertised under VAN
2003-031;
i. Social Insurance Specialist (Disability), GS-105-11, advertised under
VAN 2003-248;
(2) He did not receive an award for the performance period ending on
September 30, 2002;
(3) In November 2002, the Philadelphia Regional Office of Quality
Assurance announced a vacancy as an outside hire only, which made
complainant ineligible for the position; and
(4) Management has been unresponsive to his request to participate in
volunteer activities, thereby denying him an opportunity to improve his
job application.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
The agency filed a motion for summary judgment, which the AJ denied.1 The
AJ subsequently held a two-day hearing January 11-12, 2007, and the AJ
issued a bench decision on January 22, 2007, finding no discrimination.
The AJ noted in her bench decision that there was some confusion between
the parties about the accepted claims, and that the parties did not
address claims 1(a) - 1(c) during the hearing stage. However, the AJ
decided to accept these claims through the agency's motion for summary
judgment, and she incorporated them into her decision. The AJ indicated
that she was "essentially" adopting the agency's arguments for claims
1(a) - 1(c) into her decision finding no discrimination. The AJ also
indicated that she was going to use credibility determinations arrived at
during the hearing in arriving at determinations on claims 1(a) - 1(c).
With respect to the remaining claims, the AJ found that complainant
failed to establish a prima facie case of retaliation because he did
not establish a nexus between his prior protected EEO activity and the
alleged adverse actions. The AJ further found that complainant failed
to establish that the agency's legitimate, nondiscriminatory reasons
for its actions were a pretext for unlawful discrimination.
When the agency failed to issue a final order within forty days of receipt
of the AJ's decision, the AJ's decision finding that complainant failed
to prove that he was subjected to discrimination as alleged became the
agency's final action pursuant to 29 C.F.R. � 1614.109(i).
CONTENTIONS ON APPEAL
On appeal, complainant argues that the AJ erred in finding no
discrimination. He argues that he established a prima facie case of
retaliation and that the AJ's legal analysis "permits some forms of
retaliation to go unpunished," which undermines "the effectiveness of
the EEO statutes" and conflicts with the language and the purpose of the
anti-retaliation provisions." He further argues that the AJ based her
decision on "inaccurate testimony" from the hearing; unfairly denied
his requests to combine his pending cases and amend his complaints;
failed to sanction the agency for "destroying evidence" when two agency
officials were unable to produce their personal interview notes; failed
to compel the agency to provide more documentation; and improperly
ruled on the dismissal of his claim regarding the agency's processing
of his complaint. Complainant also argues that the AJ should have
allowed him to call more witnesses at the hearing, denied him proper
representation, and participated in improper ex parte discussions with
the agency representative. The agency did not provide a response to
complainant's appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Claim 1(i)
At the outset, we note that the regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. It has long been established that "identical"
does not mean "similar." The Commission has consistently held that in
order for a complaint to be dismissed as identical, the elements of the
complaint must be identical to the elements of the prior complaint in
time, place, incident, and parties. See Jackson v. Department of the Air
Force, EEOC Appeal No. 01955890 (April 5, 1996), rev'd on other grounds,
EEOC Request No. 0560524 (April 24, 1997).
Here, the record reflects that complainant alleged that he was not
selected for the position of Social Insurance Specialist (Disability),
GS-105-11, advertised under VAN 2003-248. However, he alleged the same
claim in a different complaint, Agency No. PHI-04-0359, and an appeal of
the agency's final order in that case was decided by the Commission in
Ponisciak v. Social Security Administration, EEOC Appeal No. 0120073332
(March 4, 2010). Therefore, claim 1(i) is dismissed for stating the
same claim that has been decided by the Commission.
Claims 1(d) - 1(h), 2 - 4
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially
establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978). Proof of a prima facie case will vary depending
on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804
n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of retaliation by presenting
facts that, if unexplained, reasonably give rise to an inference
of discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas, 411
U.S. at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, complainant may establish
a prima facie case of reprisal by showing that: (1) he engaged in
a protected activity; (2) his employer was aware of the protected
activity; (3) subsequently, he was subjected to adverse treatment by
his employer; and (4) a nexus exists between the protected activity
and the adverse treatment. Whitmire v. Department of the Air Force,
EEOC Appeal No. 01A00340 (September 25, 2000).
The Commission has stated that adverse actions need not qualify as
"ultimate employment actions" or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998);
see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)
(finding that the anti-retaliation provision protects individuals from a
retaliatory action that a reasonable person would have found "materially
adverse," which in the retaliation context means that the action might
have deterred a reasonable person from opposing discrimination or
participating in the EEO process).
Assuming arguendo that complainant established a prima facie case
of retaliation, we find that the agency articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim 1(d),
the non-selection for VAN 2002-087, the Operations Support Branch
Chief (OSBC) testified that the three selectees were more qualified
than complainant. She noted that the selectees' applications gave
more specific information about the kinds of things they have done in
the PETE position. She testified that the selectees received awards
for their positive work performance and appeared to be able to perform
higher level work than complainant.
OSBC also testified that, unlike complainant, the selectees performed
well during their interviews. She also testified that complainant did
not appear to want to be present during his group interview as evidenced
by the fact that he "slumped" in his chair and had a smirk on his face
during much of the interview. She further testified that complainant
made an inappropriate comment during the interview when he stated
"lets speed this up" after another candidate had given a "wordy" answer.
She testified that complainant's behavior concerned her because the job
required patience, the ability to interact well with different levels
of people, and a "team player attitude."
With respect to claim 1(e), the former Director, Regional Office of
Quality Assurance and Performance (Director 1) submitted an affidavit into
the record indicating that he neither considered nor selected complainant
for the Social Insurance Specialist, GS-105-11/12, position, advertised
under VAN 2002-195, because he was not on the promotion certificate
provided by the Personnel Specialist.2 Director 1 indicated that a panel
scored all of the applications, and complainant was ranked 44 out of 51
eligible candidates. The promotion certificate only included the top
12 candidates, plus two exceptions. Director 1 further indicated that
he was unaware complainant had applied for the position.
Regarding claims 1(f) - 1(g), the record reflects that Director 1
ultimately made selections for these Social Insurance Specialist,
GS-105-11/12, positions from external VAN ROQANTA-3017. Director 1
indicated in his affidavit that this was an external vacancy announcement,
posted through the Office of Personnel Management (OPM), and he made
two selections on May 14, 2003, one selection on May 15, 2003, and one
selection on June 3, 2003. Director 1 further indicated that he utilized
the "rule of three" in making his selections,3 and complainant was never
considered because he was ranked 10 out of 10 eligible candidates on the
initial promotion certificate. Director 1 noted that he only made GS-12
selections, but complainant would not have been selected for either the
GS-11 or GS-12 positions.
With respect to claim 1(h), the non-selection for the Social Insurance
Specialist, GS-105-11/12, position, advertised under VAN 2003-031,
Director 1 indicated in his affidavit that 41 candidates applied for
the position, 32 were found eligible, complainant was ranked 21 out of
the 32 eligibles, and only 17 candidates were included in the promotion
certificate. Director 1 indicated that he did not consider or select
complainant because his name was not on the promotion certificate provided
by the Personnel Specialist. Director 1 further indicated that he was
not aware that complainant had applied for the position.
With respect to claim (2), the Module Manager (MM) testified that in
2002, the agency offered several types of awards: the Recognition of
Contribution Award (ROC), the Commendable Act of Service Award (CASA),
an On the Spot Award, and a Time Off Award. MM testified that he and
his assistant manager decided who would receive the ROC awards, which
were given for "sustained superior performance over a period of time."
MM further testified that a panel determined who would receive the
remaining awards.
MM testified that he did not recommend complainant for a ROC award because
he did not feel that complainant performed "in a superior fashion over
a sustained period of time." He testified that complainant was "a fully
successful employee. He did his job, nothing above and beyond that, but
he did his job on a daily basis." The Operations Manager (OM) concurred
with MM, testifying that complainant's work performance during the
relevant time period did not qualify him for a ROC award. OM testified
that complainant was not a "top performer," and his work performance
during the relevant time period was only "satisfactory or adequate."
MM noted that complainant received a $200.00 On the Spot award in 2003,
some of which was for work completed in 2002. MM testified that On the
Spot awards are sometimes delayed because funding can be delayed for
these awards.
With respect to claim (3), the current Director, Regional Office of
Quality Assurance (Director 2), formerly the Director, Disability Quality
Branch, testified at the hearing that management has the right to recruit
and decide whether to utilize an internal or external announcement.
Director 2 testified that management considers various factors when
deciding whether to use an internal or external hiring process, such
as the amount of training that would be necessary when hiring someone
internally for a position. Director 2 further testified that an internal
vacancy announcement may be issued, but, if there is insufficient funding
available to train an internal hire, management may opt to use an external
vacancy announcement to broaden the applicant pool and hire someone who
would not require a great deal of training. She noted that external
postings are listed on the USAJOBs website.
Regarding claim (4), OM testified that complainant was given opportunities
to volunteer for activities, including mentoring or teaching. OM
testified that complainant did not always accept invitations to volunteer
for various activities, and she noted that there were instances where he
volunteered for an activity and later declined to do it. OM noted that
complainant has taken advantage of some volunteer activities in the past.
Complainant now bears the burden of proving by a preponderance of
the evidence that the agency's articulated reasons were a pretext for
discrimination. Complainant can do this directly by showing that the
agency's proferred explanation is unworthy of credence. Burdine, 450
U.S. at 256. In a non-selection case, pretext may be found where the
complainant's qualifications are demonstrably superior to the selectees.
Williams v. Department of Education, EEOC Request No. 05970561 (August 6,
1998). However, the agency has broad discretion to carry out personnel
decisions and should not be second-guessed by the reviewing authority
absent evidence of unlawful motivation. Burdine, 450 U.S. at 259.
Upon review, we find that the AJ's determination that complainant
failed to establish pretext is supported by substantial evidence in the
record. We find no evidence that the agency's actions were motivated by
discriminatory animus. Complainant argues that he proved pretext because
he felt that he was the most qualified person for the positions. We find
that complainant has not shown that his qualifications for the positions
were so plainly superior to that of the other selectees to warrant a
finding of pretext. Moreover, complainant failed to establish that the
agency improperly allowed for selections from external VANs, and he did
not provide evidence to establish that officials intentionally advertised
positions externally in retaliation for his prior protected activity.
Regarding claim (2), we note that complainant received a $200.00 On the
Spot award in 2003, some of which was for work completed in 2002, and
he failed to establish that his work performance during the relevant
time period merited a ROC or CASA award. With respect to claim (4),
agency officials testified that employees were given opportunities to
volunteer for activities, and complainant acknowledged at the hearing
that he had participated in volunteer activities in the past.
On appeal, complainant argues that the AJ improperly relied on
"inaccurate" testimony from agency officials in finding no discrimination.
However, the AJ found that the agency officials provided credible
testimony throughout the hearing, and credibility determinations of an AJ
are entitled to deference due to the AJ's first-hand knowledge, through
personal observation, of the demeanor and conduct of the witnesses at
the hearing. See Esquer v. United States Postal Service, EEOC Request
No. 05960096 (September 6, 1996). We do not find evidence in the record
that undermines the testimony provided by the officials at the hearing.
We note that the AJ relied on Director 1's affidavit in examining the
agency's legitimate, nondiscriminatory reasons for claims 1(e) - 1(h)
because Director 1 did not testify at the hearing. We also concur with
the AJ that complainant failed to provide evidence that he should have
been placed on the best qualified lists or that he was more qualified
than the selectees for these positions.
Regarding complainant's contention that the investigation was inadequate,
we find the overall record is sufficient and appropriate upon which
to make findings on the claims raised by complainant. See 29 C.F.R. �
1614.108(b). To the extent that complainant objects to the manner in
which the AJ conducted the hearing process, we note that an AJ is given
wide latitude in directing the terms of EEOC administrative hearings.
See 29 C.F.R. � 1614.109. We do not find that the AJ abused her
discretion in denying complainant's requests to compel the agency to
supplement the record, allow him to call more witnesses at the hearing,
sanction the agency for two agency officials' failure to retain a copy of
their personal interview notes, or consolidate his pending cases. We also
find that the AJ did not abuse her discretion in dismissing complainant's
claim alleging dissatisfaction with the processing of his allegations
during EEO counseling. Finally, we find no evidence in the record that
the AJ participated in improper ex parte discussion with the agency
representative or somehow denied complainant proper representation.
Claims 1(a) - 1(c)
As noted above, the AJ indicated in her decision that there was some
confusion during the pre-hearing conference about the accepted claims.
The parties did not address claims 1(a) - 1(c) during the hearing, but
these claims were addressed in the agency's motion for summary judgment.4
The AJ indicated in her decision that "given what [she] entertained at
the hearing and given [her] credibility determinations," she decided to
accept these claims through the agency's motion for summary judgment.
The AJ also adopted the analysis presented in the agency's motion for
summary judgment regarding these claims into her final decision finding
no discrimination with regard to claims 1(a) - 1(c).
Upon review, we find that the AJ improperly issued what was, in effect,
summary judgment on claims 1(a) - 1(c). The Commission's regulations
allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. �
1614.109(g). This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate
where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine
issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court's
function is not to weigh the evidence but rather to determine whether
there are genuine issues for trial. Id. at 249. The evidence of the
non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence,
issuing a decision without holding a hearing is not appropriate. In the
context of an administrative proceeding, an AJ may properly consider
issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003). Upon review, the Commission finds that the AJ erred in issuing
a decision without a hearing because the investigation record was not
complete, which should have precluded a decision by summary judgment.
See Petty, EEOC Appeal No. 01A24206.
A review of the record reveals that critical documents are missing from
the record, including the vacancy announcement for VAN 2002-028, the
promotion certificate for VAN 2002-028, and the applications submitted
by complainant and the selectees for VAN 2002-028 and VAN 2003-082.5 As
a result, we are unable to discern from the record whether complainant
was not selected in a discriminatory manner for the positions at issue in
claims 1(a) and 1(b)6 or if his applications were demonstrably superior
to those of the selectees. See Garrett v. United States Postal Service,
EEOC Appeal No. 07A30090 (September 29, 2004) (finding summary judgment
inappropriate, in part, because "the agency failed to document with
written materials the particular selection process followed, as well as
the promotion package indicating the candidates referred for consideration
and the ultimate selectee"); see also Petty, EEOC Appeal No. 01A24206
("the [AJ] erred when he concluded no evidence of falsity existed when
the agency was not required to turn over information which . . . may
have proven such pretext"). Therefore, we find that the AJ should have
required the agency to supplement the record.
Finally, we note that, in granting summary judgment, an AJ should not
utilize credibility determinations. Here, however, the AJ indicated that
she relied upon credibility determinations arrived at during the hearing
in finding that complainant was not discriminated against with respect to
claims 1(a) - 1(c) despite the fact that theses claims were not addressed
during the hearing. Since the testimony of agency officials involved in
this case raises the issue of witness credibility, we find that a decision
without a hearing was improper. The hearing process is intended to be
an extension of the investigative process, designed to "ensure that the
parties have a fair and reasonable opportunity to explain and supplement
the record and to examine and cross-examine witnesses." See MD-110,
Chapter 7, � 1; see also 29 C.F.R. � 1614.109(e). "Truncation of this
process, while material facts are still in dispute and the credibility
of witnesses is still ripe for challenge, improperly deprives complainant
of a full and fair investigation of [his] claims." Mi S. Bang v. United
States Postal Service, EEOC Appeal No. 01961575 (March 26, 1998); see
also Peavley v. United States Postal Service, EEOC Request No. 05950628
(October 31, 1996); Chronister v. United States Postal Service, EEOC
Request No. 05940578 (April 25, 1995).
CONCLUSION
Accordingly, claim 1(i) is DISMISSED. With respect to claims 1(d) -
1(h), 2, 3, and 4, the Commission finds that the AJ's factual findings
are supported by substantial evidence in the record. After a careful
review of the record, including complainant's contentions on appeal
and arguments and evidence not specifically addressed in the decision,
the agency's final order with respect to claims 1(d) - 1(h), 2, 3,
and 4 is AFFIRMED. The Commission VACATES the agency's finding of no
discrimination regarding claims 1(a) - 1(c) and REMANDS these claims
for a hearing in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Philadelphia
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on claims 1(a) - 1(c) in accordance with 29 C.F.R. � 1614.109
and the agency shall issue a final action in accordance with 29 C.F.R. �
1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_____4/23/10_____________
Date
1 The record does not contain a copy of the agency's motion for summary
judgment, complainant's response to the agency's motion, or the AJ's
decision denying the motion.
2 Director 1 had retired and left the agency at the time of the hearing.
As a result, he did not testify at the hearing.
3 The agency's "rule of three" required selecting officials to only
consider the top three candidates on the promotion certificate for a
vacant position.
4 We again note that the Commission was not provided with copies of the
agency's motion for summary judgment, complainant's response, or the
AJ's decision denying the motion.
5 The agency informed the EEO investigator that it had no record of
complainant applying for VAN 2002-028. However, the agency provided
no supporting documentation, such as a list of the applicants and the
selectee(s) for the position.
6 With respect to claim 1(c), the record contains copies of the vacancy
announcement, promotion certificate, complainant's application, and the
selectees application for VAN 2003-160.
??
??
??
??
2
0120082062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082062