01a04609
02-02-2001
Melissa Fussell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Melissa Fussell v. Department of Veterans Affairs
01A04609
February 2, 2001
.
Melissa Fussell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04609
Agency No. 992898
DECISION
Melissa Fussell (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning 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.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged that
she was discriminated against on the basis of race (Black) when she was
notified on March 31, 1999, that she was not promoted to the position
of Employee Relations Assistant under Vacancy Announcement No. VR4-99.
For the following reasons, the agency's decision is VACATED.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Personnel Action Clerk in the Human Resources Management
Services (HRMS) section of the agency's Houston, Texas Medical Center.
Believing she was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on May 26, 1999.
At the conclusion of the investigation, complainant was informed
of her right to request a hearing before an EEOC Administrative
Judge or, alternatively, to receive a final decision by the agency.
When complainant failed to respond within the requisite regulatory time
period, the agency issued a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race discrimination because she failed to establish
that she was treated differently than similarly situated individuals
outside her protected group. The agency asserted that complainant
was not comparable to the selectee as the selectee had more relevant
experience. The agency went on to note that the selecting official
and others involved in the selection process articulated a legitimate
non-discriminatory reason for its action. Specifically, the agency
noted that after reviewing all of the applications, the recommending
official (RO) determined that the selectee (S1) was the best-qualified
applicant because she had knowledge of the entire human resource area
and experience in processing retirements. The selecting official (SO)
based his selection on RO's recommendation. Both SO and RO asserted
that race played no part in the decision to select S1.
The agency then found that complainant failed to establish that this
explanation was a pretext for discrimination. The agency acknowledged
that the facility had been deficient in hiring Hispanic applicants
in the past, but noted that the selection at issue was based on the
qualifications of S1 compared to the other applicants. In response to the
testimony of various employees that it was difficult for Black employees
to receive promotions, the agency noted that none of these witnesses
stated that they believed race was a factor in the decision at issue.
The agency concluded that complainant failed to establish that she was
subjected to race discrimination by a preponderance of the evidence.
After a careful review, we find that the evidence of record is
insufficient to allow a determination on the merits of this complaint.
This insufficiency stems from the agency's failure to properly
characterize complainant's complaint. As established by the EEO
Counselor's Report, the formal complaint and complainant's affidavit,
complainant alleged that the March 31, 1999 non-selection was one of
several non-selections she was subjected to since the beginning of
1997 and that all were due to the agency's policy of favoring Hispanic
and Caucasian applicants. While the investigator attempted to gather
information concerning these other non-selections and succeeded in
obtaining certain information, the FAD only addressed the March 31,
1999 non-selection. The record does not contain the applications for
the other positions mentioned by complainant, nor testimony from the
selecting officials as to who was selected for these positions and why.
Although the record contains some vacancy announcements, it is unclear
whether the positions complainant mentioned are covered by these
announcements, as she did not provide the vacancy numbers. Moreover,
while the investigator requested information as to the racial breakdown
of the selectees for these positions several times, the agency never
provided this information.
Based on the above, the Commission concludes that this record lacks
the necessary information upon which to adequately determine if the
agency's actions were lawful under Title VII. Our regulations require
agencies to develop an impartial and appropriate factual record. See 29
C.F.R. � 1614.108(b)). We therefore VACATE the agency's finding of no
discrimination and REMAND the complaint in accordance with the following
ORDER and applicable regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following actions:
1. The agency shall ensure that the investigator obtains vacancy
announcement for every position complainant applied for since January
1997, along with all applications submitted in response to these vacancy
announcements, and a list of the selectees for each position.<2> The
agency shall also indicate the race of each applicant and selectee.
2. The agency shall ensure that the investigator obtains affidavits
from the selecting official(s) for each of the positions described in
the vacancy announcements. Each selecting officer shall be asked to
explain how the selecting process worked and why the selectees were
selected instead of complainant.
3. The agency shall ensure that the investigator obtains any other
affidavits or records not specifically requested in this ORDER, and not
inconsistent with this opinion, which may be relevant in determining
whether complainant was non-selected for promotions since January 1997
due to a policy of favoring Caucasian and Hispanic applicants.
4. The agency shall acknowledge that it has received the remanded
complaint within fifteen (15) calendar days of the date this decision
becomes final.
5. The agency shall ensure that the investigator completes a supplemental
investigation within one hundred and twenty (120) calendar days of the
date this decision becomes final. The agency shall then immediately
issue to complainant a copy of the supplemented investigative file.
Thereafter, the agency shall issue a new final agency decision within
sixty (60) days. Copies of the completed supplemental investigation and
new final agency decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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
February 2, 2001
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although the previous non-selections occurred more than 45 days prior
to complainant's EEO contact, we note that she may have a continuing
violation claim. Complainant contacted an EEO Counselor within 45 days
of the March 1999 non-selection and alleged that the agency's policy
of favoring certain racial groups over her own led to it, as well as
previous non-selections. The agency may not argue that the previous
non-selections are time-barred in lieu of complying with this Order,
as without the information requested we are unable to determine if
complainant established a continuing violation.