01a53100
08-12-2005
Bernard P. Langlais, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Bernard P. Langlais v. Department of Veterans Affairs
01A53100
August 12, 2005
.
Bernard P. Langlais,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53100
Agency No. 200H-0631-2005100171
DECISION
Complainant appeals to the Commission from the agency's February
24, 2005 decision dismissing his complaint. Complainant alleges
discrimination on the basis of age when on October 14, 2004, he became
aware that the Supervisory Respiratory Therapist position (Announcement #
04-50), which closed June 11, 2004, had been put on hold indefinitely.
Complainant alleges discrimination on the bases of age and reprisal for
prior EEO activity when on January 6, 2005, in a proposed reorganization
of the service, the Supervisory Respiratory Therapist position was
to be eliminated. The agency dismissed claims 1 and 2 for alleging a
proposal to take a personnel action, or preliminary step to taking a
personnel action, pursuant to 29 C.F.R. � 1614.107(a)(5).
With respect to claim 1, there is some indication in the record that the
selection decision for the Supervisory Respiratory Therapist position
was put on hold because of reorganization discussions about putting
the Specialty & Acute Care Service Line under the Nursing Service.<1>
Complainant argues, on appeal, that after the agency issued its decision
on February 24, 2005, he received a letter, dated February 25, 2005,
�stating that [he] was to remain a GS-8, instead of the GS-10, and
that someone else was the new supervisor of the Respiratory Dept.�
Complainant alleges that �the new supervisory position was never posted
for others to apply.� Complainant has produced the February 25, 2005
letter, which indicates that the agency is beginning to implement its
reorganization, and that complainant's assignment will be �Registered
Respiratory Therapist, GS-601-8, under the Nursing Program.� The letter
states that the Nursing Program �will be organizationally contained in
the Local Management Service Line[,]� and that complainant's �immediate
supervisor will be [Ms. X], Nurse Manager Ward 9[.]� Complainant
argues that Ms. X is in the Supervisory Respiratory Therapist position.
The record is devoid of any evidence submitted by the agency showing
that the Supervisory Respiratory Therapist position is still on hold.
The subsequent alleged selection of a Supervisory Respiratory Therapist
merges into complainant's two claims and renders complainant aggrieved.
Specifically, we find that the complaint is now properly defined as one
claim of a non-selection.
The agency's decision dismissing complainant's complaint is REVERSED,
and we REMAND the matter to the agency, as defined herein, for further
processing in accordance with this decision and applicable regulations.
ORDER (E0900)
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 (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
August 12, 2005
__________________
Date
1We do not address the motivation for putting
the selection decision on hold or even whether it is a fact that the
selection decision was placed on hold.