01990096
10-03-2001
Sam A. Hout, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Sam A. Hout v. Department of Agriculture
01990096
October 3, 2001
.
Sam A. Hout,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01990096
Agency No. 960503
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
alleges he was discriminated against on the bases of national origin
(Lebanese) and age(DOB 12/24/51), when he was not selected for a permanent
position as a Chemical Engineer GS-12 in 1996.
For the following reasons, the Commission VACATES and REMANDS the agency's
final decision.
The agency accepted the complaint for investigation on the issue of
the complainant's termination in February 1996. We view the complaint
as alleging both discriminatory termination and non-selection for the
permanent position of Chemical Engineer which was advertised through
merit promotion procedures. The record contained some witness references
to the non-selection issue and the two vacancy announcements but no
other parts of the merit promotion package were included. There is
also documentation of the agency's Post Doc Referral System (Automated)
which has as its purpose, the provision of a �readily available means for
identifying permanent vacancies in the agency� to temporary scientists.
It also was intended to provide a source of potential candidates
for selecting officials when filling permanent Agricultural Research
Service (ARS) vacancies. Therefore, the record indicates preliminarily,
that the complainant could have been selected for a permanent vacancy
through an established agency program. The agency, however, fails to
provide complete documentation of its consideration of the complainant's
application through this process when compared to similarly situated
temporary scientists.
After a thorough review of the record, we find that the evidence is
insufficient to allow a determination on the merits of complainant's
claims of discrimination under any of complainant's alleged bases.
Our regulations and the EEOC Management Directive (MD) 110, as revised,
November 9, 1999 for 29 C.F.R. Part 1614 require agencies to develop
a complete and impartial factual record. See 29 C.F.R. � 1614.108(b)
and EEOC Management Directive (MD) 110, as revised, November 9, 1999,
Chapter 6, page 6-1.
We therefore vacate the agency's finding of no discrimination, and
remand this matter for a supplemental investigation in accordance with
the following ORDER, and the applicable EEOC Regulations.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1) A copy of the merit promotion package including the selection
certificate for both selections, selection criteria, rating sheets,
interview notes, candidate applications, the application of the selectee
and documents indicating the merit promotion procedures followed.
The agency shall designate the national origin and age of each applicant
and the selectee;
Supplemental affidavits of the selection official and those involved in
the selections at issue herein stating the reasons why the complainant
was not selected in 1995 and why he was not hired to fill the permanent
position advertised in 1994 after being selected;
3) If no selection was made the supplemental affidavits should state
the reason why;
4) The agency shall also address whether any other temporary
appointments of Chemical Engineers resulted in permanent employment
through the Post Doc Referral System or any other means between the
dates of 1990 and 1996 and if so, the employee's national origin, age
and dates of employment shall be provided.
5) The agency shall ensure that the investigator obtain any other
affidavits, records or statistics not specifically requested in this
ORDER, and not inconsistent with this opinion, which may be relevant in
determining the veracity of complainant's complaint allegations.
4. The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of
the date this decision becomes final. Thereafter, the agency shall
provide the complainant, within thirty (30) calendar days from the date
the agency completes the supplemental investigation, an opportunity to
respond to the supplemental investigative report. The agency shall then
take any action appropriate and consistent with complainant's response,
and issue a new final agency decision within thirty (30) calendar days of
complainant's response or, if complainant fails to respond, within thirty
(30) calendar days following the last day complainant would have been
permitted to respond. Copies of the completed supplemental investigation
and new final agency decision must be submitted to the Compliance Officer,
as referenced below.
In accordance with the Equal Employment Opportunity Commission Management
Directive for 29 C.F.R. 1614 (EEO MD-110), 9-23 as revised ( November 9,
1999), the agency shall give priority to this remanded case in order to
comply with the time frames contained in this Order.
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
October 3, 2001
Date