0120092131
08-05-2009
David B. Broughton, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
David B. Broughton,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120092131
Agency No. 2008-22260-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 24, 2009, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Upon review, the Commission finds that the agency improperly dismissed
complainant's complaint.
On October 29, 2008, the agency accepted complainant's complaint in
which complainant alleged that he was subjected to discrimination on
the basis of age (50) when:
he was advised on August 22, 2008, that he was not selected for a Staff
Position at the Jacksonville ARTCC that was advertised under vacancy
announcement number ASO-ATO-08-A023-100351 and a younger employee was
selected.
Subsequently, in its March 24, 2009 final decision, the agency dismissed
complainant's complaint for failure to state a claim. Specifically,
the agency stated that "[d]uring the investigation . . . it was revealed
that another employee was selected for this position, but declined the
position. Finally, it was ascertained that the position still has not
been filled and the vacancy announcement was cancelled."
"Generally, where the agency cancels a vacancy announcement without making
a selection, [complainant] does not suffer any personal harm that would
render him aggrieved and therefore fails to state a claim." Van Nest
v. Department of the Army, EEOC Request No. 05960752 (November 20, 1998)
(citing Grace v. Department of the Army, EEOC Request No. 05940969 (May
18, 1995)). However, as established in Van Nest, "when [complainant]
alleges that the agency canceled a vacancy after making a selection,
and that the cancellation occurred under circumstances suggesting a
deliberate intent to avoid selecting him, he states a claim." In Campos
v. Department of Defense, EEOC Request No. 0120073430 (October 4, 2007),
the Commission found that a complaint pertaining to a nonselection stated
a claim because "a selection was made, albeit later declined."
In the instant matter, complainant applied for the position and the
position was offered to another applicant. See Interrogatory Response of
Recommending Selecting Official (RSO) dated February 24, 2009. As in
Campos, after the selection, the selectee withdrew his application
and the vacancy was cancelled. See Withdrawal letter from Selectee
dated March 25, 2008; see also Final Agency Decision dated March 24,
2009. Accordingly, the agency's final decision dismissing complainant's
complaint is reversed. The matter is hereby remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claims in accordance
with 29 C.F.R. � 1614.108. The agency is ORDERED to resume processing
of complainant's complaint from the point where processing ceased.
The agency shall acknowledge to complainant that it has reinstated and
resumed processing of complainant's complaint.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 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 (R0408)
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 (Z1008)
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 5, 2009
Date
2
01-2009-2131
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092131