0520100073
12-27-2010
Eugene W. Guinn, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eugene W. Guinn,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520100073
Appeal No. 0120092190
Agency No. 200P06482009101650
DENIAL
The Agency timely requested reconsideration of the decision in Eugene W. Guinn v. Department of Veterans Affairs, EEOC Appeal No. 0120092190 (September 22, 2009). 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 our prior decision, the Commission found that the Agency improperly dismissed the complaint for failure to state a claim. In claim (1), Complainant alleged that he made the best qualified list but was not selected for the position of Financial Manager/Chief Financial Officer, GS-505-14, posted under Announcement No. MP-09-0007-JC. The Agency reasoned that the position was not filled and therefore Complainant was not harmed. The Commission found, however, that the Agency improperly addressed the merits of the claim without an investigation. Complainant alleged in claim (2) that, during informal counseling, the EEO Counselor stated that if he did not drop his claim it could hurt his chances of getting the job if it reopened. While the Agency found that the matter concerned the processing of his complaint, and failed to state a claim, the Commission concluded that Complainant presented a claim of retaliation. As such, the action need not qualify as an "ultimate employment action" but must be reasonably likely to deter one from engaging in protected EEO activity. The complaint was remanded to the Agency for further processing.
In its request for reconsideration, the Agency argues that the Commission did not properly consider the facts in this case and the relevant case law. Specifically, with respect to claim (1), the Agency contends that the Commission has long held that "where no selection is made for a position, an applicant claiming discriminatory nonselection fails to state a claim." See Williams v. United States Postal Service, EEOC Appeal No. 0120073647. As to claim (2), the Agency contends that because complainant proceeded with his EEO complaint, it "reasonably presumed [complainant] had expressed dissatisfaction with the manner in which the EEO Counselor was handling his claim." The Agency addressed the matter as a "spin-off" which required dismissal of the claim.
After reconsidering the previous decision and the entire record, the Commission finds that 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. 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, when Complainant claims that the vacancy announcement was canceled for a discriminatory motive, and that the cancellation was to avoid giving Complainant the position, he does state a claim. See Lall v. Department of the Navy, EEOC Request No. 05A00064 (April 24, 2000). In the instant case, Complainant alleges that the Agency "deliberately did not fill the position in order to avoid hiring me." Similarly, in claim (2), Complainant has alleged that threat of not being considered for the position was realized by management's decision not to interview him. The instant complaint does state a claim of discrimination. The decision in EEOC Appeal No. 0120092190 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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
December 27, 2010
__________________
Date
4
0520100073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100073