Frankie Marcano, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 9, 2011
0520110661 (E.E.O.C. Dec. 9, 2011)

0520110661

12-09-2011

Frankie Marcano, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.




Frankie Marcano,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 0520110661

Appeal No. 0120112018

Agency No. 2001-0675-2010100972

DENIAL

The Agency timely requested reconsideration of the decision in Frankie

Marcano v. Department of Veterans Affairs, EEOC Appeal No. 0120112018

(July 26, 2011). 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).

The record reveals that Complainant was an applicant for employment

with the Agency's Medical Center in Orlando, Florida. On January 22,

2010, Complainant filed a formal EEO complaint claiming that she was

the victim of unlawful employment discrimination on the bases of race

(African-American), national origin (African-American), and color (black)

when she was not selected for the position of Social Worker, GS-185-9/11.

An EEOC Administrative Judge (AJ) dismissed Complainant’s complaint

on the grounds that Complainant failed to contact an EEO Counselor in a

timely manner. The AJ found that Complainant learned that she had not

been selected for the position on October 6, 2009, but did not contact

an EEO Counselor until December 10, 2009, which was beyond the allowed

45-day time limit. The Agency implemented the AJ’s dismissal of the

complaint. On appeal, the previous decision, in reversing the Agency’s

final order, found that the effective date of the hire was December 6,

2009, the date the selectee was hired. Thus, Complainant’s December

10, 2009 EEO Counselor conduct was deemed timely.

REQUEST FOR RECONSIDERATION

In the Agency’s request for reconsideration, it asserts that the

Commission erred in using the effective date of the hire as the date of

the alleged discriminatory event, especially here where the Complainant

learned of her non-selection well in advance of the effective date of

the hire. The Agency argues that in this case, the Commission ignored

Complainant’s own statements which indicated that she knew she was not

hired as early as October 6, 2009. She even indicated that she knew

who was hired and was told so by the alleged discriminating official.

As such, the Agency argues that for the Commission to disregard the

Complainant’s own testimony defies logic.

The Agency also maintains that the Commission misapplied the reasonable

suspicion standard. The Agency stated that the Commission’s application

of the reasonable suspicion test in this case, would allow an individual

to wait months or even years to initiate contact with an EEO Counselor

and still be timely as long as the individual claims that he or she just

learned the race, gender, age, etc., of the selectee. This interpretation,

according to the Agency, would render the 45-day time limitation for

contacting an EEO Counselor virtually useless.

ANALYSIS AND FINDINGS

After reviewing 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. We remind the Agency that a “request for

reconsideration is not a second appeal to the Commission.” Equal

Employment Opportunity Management Directive for 29 C.F.R. Part 1614

(EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request

is an opportunity to demonstrate that the previous decision involved a

clearly erroneous interpretation of material fact or law; or (2) will

have a substantial impact on the policies, practices, or operations

of the Agency. Here, we find no evidence that the Agency has met the

criteria for reconsideration.

Contrary to the Agency’s assertions otherwise, the issue here is not

whether Complainant reasonable suspected discrimination in October 2009,

when she learned she would not be selected. Our regulations provide that

“[C]omplaints of discrimination should be brought to the attention

of the Equal Employment Opportunity Counselor within forty-five (45)

calendar days of an alleged discriminatory event, the effective date of an

alleged discriminatory personnel action, or the date that the aggrieved

person knew or reasonably should have known of the discriminatory event

or personnel action.” Emphasis added. Here, there is no dispute that

the date of the alleged discriminatory personnel action, the selection of

Complainant’s white female co-worker, is December 6, 2009. Therefore,

the previous decision correctly found that Complainant’s December 10,

2009 EEO Counselor contact was timely. The decision in EEOC Appeal

No. 0120112018 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

The Agency shall submit to the Hearings Unit of the EEOC Miami District

Office a request for a hearing within fifteen (15) calendar days of

the date this decision becomes final. The Agency is directed to submit

a copy of the complaint file to the EEOC Hearings Unit within fifteen

(15) calendar days of the date this decision becomes final. The Agency

shall provide written notification to the Compliance Officer at the

address set forth below that the request and complaint file have been

transmitted to the Hearings Unit.

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

___12/9/11_______________

Date

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0520110661

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520110661