0120150307
03-27-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150307
Agency No. 200P-0691-2014102378
DECISION
On October 30, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC) from a final Agency decision (FAD) dated September 24, 2014, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of housekeeping aid, WG-2, at the Agency's VA Greater Los Angeles Healthcare System facility in Los Angeles, California.
On July 9, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on reprisal for prior protected EEO activity when, after it selected him for rehire for the position of housekeeping aid, it did not bring him on board. He was selected on or before April 2, 2014.
The Agency argues that it has not brought Complainant on board because his security clearance is pending. Sometime prior to March 26, 2014, Complainant was arrested. When he completed VA Form OF-306, he did not disclose his arrest.1 According to Complainant, he was following the directions of an Agency Human Resource employee to complete the form as he did before. The Agency argues that Complainant's security clearance, in terms of length of time to complete, has been complicated by his arrest and failure to report this on VA Form OF-306.
Complainant contends that an identified Human Resources employee informed him the Agency had not brought him on board because the Human Resources Officer was waiting for the outcome of his EEO complaint.
In its FAD, the Agency dismissed Complainant's complaint for failure to state a claim on the ground that he was not aggrieved. It reasoned he was offered the job of housekeeping aid, the offer has not been withdrawn, and his coming on board was awaiting a "security adjudication." The Agency found Complainant will not endure an "injury in fact" until and if he is subjected an action -- not being selected (rejected) for the position.
On appeal Complainant contends that the Agency is stonewalling bringing him on board, and still has not done so.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Appeal No. 05931049 (Apr. 21, 1994). To state a claim under the Commission's regulations, an employee must allege and show an injury in fact. Specifically, an employee must allege and show a "direct, personal deprivation at the hands of the employer," that is, a present and unresolved harm or loss affecting a term, condition, or privilege of his employment. Id.
Here, Complainant was offered the position of housekeeping aid on or before April 2, 2014. According to a December 2014 appeal submission by Complainant, he still had not been brought on board. Given this long delay, we find Complainant has suffered an "injury in fact."
Accordingly, the FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded claim, as defined herein, in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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
March 27, 2015
__________________
Date
1 Complainant avers that he tried to rectify his mistake the following week by submitting an amended/corrected VA Form OP-306, but the Agency refused to accept it.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120150307