0520120232
06-08-2012
Victor Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Victor Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120232
Appeal No. 0120113353
Agency No. 200406522009101144
DENIAL
The agency timely requested reconsideration of the decision in Victor Jones v. Department of Veterans Affairs, EEOC Appeal No. 0120113353 (December 9, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our previous decision, we reversed an Agency's dismissal of one of Complainant's three claims. Specifically, we found that the Agency failed to substantiate that Complainant had raised the same issue in a Union grievance because the record only contained correspondence about a Union grievance, but not the Union grievance itself. We also affirmed the Agency's finding that Complainant failed to establish that discrimination existed in his existing two claims of discrimination.1
In its request for reconsideration, the Agency contends that the Commission erred in its original decision with regard to claim 1 because the record contains the Union grievance filed by the Union representative. A review of the record reveals that the Agency is referring to a December 26, 2008 letter from Union President with the subject line "Union Filed 3rd Step Grievance - Violation of the Merit Promotion, Article 22, of the Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees." This letter does in fact discuss the non-selection at issue in Complainant's claim 1. However, the letter does not mention Complainant, nor does the reply to the letter from the Agency's Action Associate Director dated January 22, 2009. Instead, the Union President's letter generally discusses the alleged violation of the "Master Agreement" between the Agency and the Union when the Agency sought and selected outside candidates for the position. In seeking resolution to the grievance, the Union President asked that the Agency place the ten in-house candidates into the position without naming any of the candidates. There is no indication from the documents the Agency provided that Complainant filed a grievance; the documentation from the Union President was general and the grievance could have been initiated by any of the ten in-house candidates not selected for the position.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120113353 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to process the remanded claim 1 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that h has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue lo 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 dale 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 (K0610)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
06/08/2012
__________________
Date
1 Neither the Agency nor Complainant requested reconsideration of our previous decision with regard to Complainant's claims 2 or 3.
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2
0520120232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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