0520130023
03-12-2013
Ronald R. Glasgow, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Ronald R. Glasgow,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Request No. 0520130023
Appeal No. 0120120681
Agency No. DIA201100022
DENIAL
Complainant timely requested reconsideration of the decision in Ronald R. Glasgow v. Department of Defense, EEOC Appeal No. 0120120681 (August 17, 2012). 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).
BACKGROUND
Complainant applied for three Agency job announcements, and then alleged seven claims of discrimination:
1. on April 30, 2010, Complainant learned he was not selected for an entry level position under vacancy announcement A09-026552-02-JER, which closed on February 28, 2O10;
2. on June 23, 2010, Complainant learned that he was not selected for a position under vacancy announcement Al0-027451-Ol-JER, which closed on May 31, 2010;
3. as of December 7, 2010 Complainant had not been selected for an entry level position under vacancy announcement Al0-028223-0l-JER, which closed on August 31, 2010;
4. the Agency allows applicants to "cheat" the application system by paying companies to draft their resumes to include key words that allow these applicants to be found qualified;
5. the Agency allows or has inconsistencies in the Veterans' Preference Eligible System in which points are awarded to certain applicants;
6. on February 10, 2011, Complainant learned that his application package for Vacancy Announcement Number ElO-029363-Ol-MEK was reviewed and he was denied an invitation to the DIA Washington, DC Hiring Event in Washington, DC;
7. from February 28, 2011, when he filed his formal complaint, to August 24, 2011, he was not referred for an entry level position at the Agency.
The discriminatory bases for claims 1, 2, 3, and 6 were race, sex, age, and disability, while the bases for claims 4 and 5 were reprisal for prior EEO activity. The bases for claim 7 were race, sex, age, disability, and reprisal.
The Agency dismissed all seven claims in its final decision. But after review, the Commission reversed the Agency on claims 1, 2, and 6, and remanded those claims to the Agency for further processing. The Commission affirmed the Agency's dismissal of claims 3, 4, 5, and 7.
For claim 3, the Commission found the claim to be prematurely raised because the selection process still appeared to be underway and "Complainant has provided no evidence the Agency has taken any action with regard to the job announcement . . . ." The Commission affirmed the dismissal of claim 7 because Complainant did not specify the job announcement, only referring to his "application of last filing." The Commission concluded, "To the extent Claim 7 does not refer to the applications at issue in Claims 1, 2, or 6, it fails to state a claim."
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant only challenges the Commission's decision regarding claim 7: it should not have been dismissed for failing to specify the relevant job announcement because the record was clear that the claim referred to the Agency's failure to select Complainant for the most recent vacancy announcement he applied for, the vacancy announcement in claim 3 (Al0-028223-0l-JER).
ANALYSIS
We remind Complainant 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. 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.
Even if we assume, for the sake of argument, that claims 3 and 7 are both about vacancy announcement Al0-028223-0l-JER, the record does not indicate what action the Agency has allegedly taken with respect to this vacancy announcement. For example, has the Agency finished referring applicants for further consideration and has it ultimately selected people for these jobs? If no selections have been made, did the Agency cancel this job announcement? Complainant's allegations and the record still do not clearly indicate what has taken place. And because of this lack of clarity, we cannot say that the previous decision clearly erred in determining that claim 3, and by extension claim 7, were prematurely raised. The decision in EEOC Appeal No. 0120120681 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.1
ORDER
The Agency is ordered to process the remanded claims (Claims 1, 2, and 6) 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
___3/12/13_______________
Date
1 If the nonselection issue for vacancy announcement Al0-028223-0l-JER is indeed now ripe (e.g., the Agency has selected others for the job, referred others for further consideration, or cancelled the vacancy announcement), we advise Complainant to initiate contact with an EEO Counselor pursuant to 29 C.F.R. � 1614.105.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520130023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130023