0520110036
12-15-2010
Christopher Stansbury, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Christopher Stansbury,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520110036
Appeal No. 0120102125
Agency No. 200J03282010101264
DECISION
Complainant timely requested reconsideration of the decision in
Christopher Stansbury v. Department of Veterans Affairs, EEOC Appeal
No. 0120102125 (August 24, 2010). 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 his complaint, Complainant alleged that (a) he was forced to resign in
lieu of being removed from his RSVR position and (b) he was denied the
opportunity to sit for the RSVR skill certification exam. The previous
decision affirmed the Agency's dismissal of both claims. Claim a was
dismissed because Complainant filed an appeal with the Merit Systems
Protection Board (MSPB), and claim b was dismissed for untimely EEO
counselor contact.
In his request, Complainant does not contest the dismissal of claim b.
Regarding claim a, the Commission notes that at the time of the Agency's
decision, the dismissal was appropriate. However, the MSPB subsequently
dismissed the matter for lack of jurisdiction and the Agency then
rescinded its decision to dismiss claim a, accepting the matter for
processing. Because the Agency has rescinded its decision on claim a,
the Agency should continue to process the matter as set forth in the
order below.
After reconsidering the previous decision and the entire record, the
Commission finds that a portion of 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 with respect to claim b. The decision in EEOC
Appeal No. 0120102125 is modified to reflect that the Agency rescinded
its dismissal of claim a. There is no further right of administrative
appeal on the decision of the Commission on this request. The agencvy
shall comply with the order as set forth below.
ORDER (E0610)
The Agency is ordered to continue its processing of claim b 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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
December 15, 2010
__________________
Date
2
0520110036
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0520110036