0120101946
08-17-2010
Angela D. McCurry, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Angela D. McCurry,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120101946
Agency No. OBD20100053
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 18, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Complainant indicated that she interviewed for three positions but received notice in May 2009 that she was not selected for any of the positions for which she applied. Believing she was subjected to discrimination, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, Complainant filed a formal complaint. In her complaint dated January 23, 2010, Complainant alleged that the Agency subjected her to discrimination on the bases of race (African-American) and age (47 years old)1 when she was not selected for the following vacancy announcements:
1. The position of Paralegal Specialist in the Office of Solicitor General (OSG), GS-0950-09, under Announcement No. OSG-09-147(SS)DEU;
2. The position of Paralegal Specialist with OSG, GS-0950-11, under Announcement No. OSG-09-148(SS)MPP; and
3. The position of Paralegal Specialist with OSG, GS-0950-09, under Announcement No. OGC-09-148(SS)MPP.
The Agency dismissed the complaint. The Agency noted that the EEO Counselor spoke to a representative in OSG who indicated that the vacancy announcements were cancelled with no selections made for the positions at issue. As such, no one has been selected for the positions in question. The Agency determined that Complainant has not shown that she was harmed when the announcements were cancelled. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Complainant appealed. She asserted that she stated a claim in that she believed that the Agency cancelled the vacancy announcements in bad faith and failed to fill the positions in order to obstruct her employment opportunities based on her race and/or age. Complainant indicated that while she was in the EEO Counselor's office, management indicated that there was no selection made for "management wanted a more robust selection." She also argued that the Agency cancelled the vacancy announcements while her non selection notices stated that she did not meet the basic qualification requirements, she was evaluated and referred for consideration, and, however, for all three positions, she was not selected. Complainant contended that the Agency implied that someone else had been selected for the positions and failed to notify her that the announcements had been cancelled and the positions left unfilled. Complainant believed that this inconsistency in information from the Agency regarding the positions shows that the Agency may have cancelled the vacancy announcements for discriminatory reasons. Therefore, Complainant requests that the Commission reverse the Agency's dismissal of the complaint and remand the matter for further processing.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dept. of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Agency dismissed the claim for failure to state a claim, finding that since no selection had been made for the positions in question, Complainant had not been harmed by the Agency's actions. We note, however, that in the record and on appeal, Complainant believed that the positions were canceled in order to prevent her from being considered for selection. Generally, when an agency cancels a vacancy announcement without making a selection, the complainant suffers no personal harm that would render her "aggrieved." See Van Nest v. Dept. of the Army, EEOC Request No. 05940969 (May 18, 1995). However, when Complainant claims that the vacancy announcement was canceled for a discriminatory motive, and that the cancellation was to avoid giving Complainant the position, she does state a claim. See Lall v. Dept. of the Navy, EEOC Request No. 05A00064 (April 24, 2000). Because of Complainant's allegations that the Agency improperly cancelled the announcements, we find that the complaint states a valid claim of discrimination.
CONCLUSION
Accordingly, the Agency's final decision is REVERSED, and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (R0610)
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 (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
August 17, 2010
__________________
Date
1 We note that the Agency's final decision noted that Complainant alleged the basis of sex, however, a review of Complainant's formal complaint clearly shows that Complainant only raised the bases of race and age.
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0120101946
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101946