0120080529
03-28-2008
Chad S. Scherr, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Chad S. Scherr,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120080529
Agency No. 2007030
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 11, 2007, dismissing his complaint of unlawful
employment discrimination claiming violations of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
At the time of the events at issue, complainant was an applicant for
federal employment. In an EEO complaint filed on September 11, 2007,
complainant alleged that he was subjected to discrimination on the bases
of disability (not identified) and reprisal when:
1. he was not selected for the position of Investigator, GS-1810-07,
advertised on USAJOBS under vacancy announcement No. WA141010-LW, and
instead the vacancy announcement was cancelled;1 and
2. he was subjected to retaliation when the agency subjected him to
"avoidance," "prevented rights," and "and denied rights."
In its final decision dated October 10, 2007, the agency dismissed
both claims in the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim.
The record reveals that complainant applied for the advertised
Investigator position through USAJOBS, an on-line application process
sponsored by the agency, and thereafter states he received a letter from
the agency informing him the recruitment action was cancelled. Complainant
alleged that he had identified himself as being disabled in his
application, and believes he would have been the best qualified candidate
for the position. Complainant asserted he contacted the agency to find
the reason for the cancellation of the vacancy announcement. He stated
one person told him the recruitment action was canceled due to money
problems at the EEOC, and someone else told him that the EEOC decided
to fill the position at a GS-9 level. In any event, complainant voiced
his objections to the agency in August 2007, and began the EEO process.
During EEO counseling, complainant was not satisfied with the way his
complaint was handled. Complainant asserted that the EEO counselor
deliberately mischaracterized, distorted, omitted, manipulated, and
engaged in improper practices when addressing his claims. The record
contains a rebuttal to the EEO counselor's report by complainant, dated
October 22, 2007 (after the agency's October 10 dismissal decision was
issued). In that rebuttal, complainant basically indicates that the
counselor improperly terminated the interview,2 did not allow him to
provide all information, and failed to include every detail proffered by
complainant. Complainant also noted that the report did not state that
complainant refused to sign the rights and responsibilities statement
because it did not include all of the rights that he felt were available
to him. Complainant also states he had a right to alternative dispute
resolution (ADR), and the agency denied him his right to engage in ADR.
Complainant claimed the problems with his counseling were an unlawful
interference with his right to engage in the EEO process.
In its final decision of October 10, 2007, the agency dismissed both
claims. With respect to the cancellation of the job announcement, the
agency noted that not only was no selection made, but it was EEOC, not
the agency, that cancelled the recruitment action. The agency dismissed
the second claim of retaliation because complainant failed to show that
he was aggrieved.
EEOC regulations for federal sector complaint processing provide that 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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). If complainant has not alleged facts
to suggest he is aggrieved, the regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides, in relevant part, that an agency shall dismiss
the complaint for failure to state a claim.
In the instant case, after careful review of the complete record,
including all statements submitted on appeal, we find that complainant's
claims were properly dismissed. With regard to claim (1), regardless of
the reason for cancelling the job announcement, another entity, not the
agency, cancelled the recruitment action. Further, no selection was made
from that announcement. Therefore, complainant has failed to establish
a viable claim on this issue against the agency.
With regard to claim (2) concerning complainant's dissatisfaction
with the agency's EEO counseling process, regulations provide that
allegations of improper processing are not independent claims of
discrimination or retaliation and are properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(8). Instead, when such allegations are raised,
the complainant should be referred to the agency official responsible
for the quality of complaint processing, and the agency should attempt
to resolve any dissatisfaction with the complaint process as early and
expeditiously as possible. EEOC Management Directive (MD)-110 (November
9, 1999) at 5-25. A September 10, 2007 letter from the agency's Chief,
Center for Equal Employment Opportunity, to complainant reveals this
process was followed. As complainant was apparently not satisfied with
the agency's response to his concerns, MD-110 provided him with the
further option of raising his concerns on appeal, which he has done.
MD-110 at 5-26 indicates that when allegations of improper process
are raised on appeal, the agency may be sanctioned upon a finding that
the agency improperly processed the complaint and that such improper
processing has had a material effect on the adjudication of the original
claim, which in this instance would be the nonselection claim. After
reviewing all the documents complainant submitted to the agency, and on
appeal, detailing his improper processing allegations, the Commission
concludes that complainant has not established that sanctions are
appropriate in this case. First, there is insufficient evidence that
the counseling provided complainant in this matter did not comport with
the applicable regulations. Moreover, even if complainant had proven
the EEO counseling process in this matter was flawed, he has not been
established that it had a material effect on the adjudication of his
nonselection claim.
Accordingly, the agency's dismissal decision in this matter is AFFIRMED.
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
March 28, 2008
__________________
Date
1 It is noted that was the advertised position was not located at
the Office of Personnel Management, but rather at the Equal Employment
Opportunity Commission. There is, however, no record that complainant
filed a complaint against the EEOC on this matter.
2 The EEO counseling was done by telephone.
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0120080529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080529