0120082156
09-18-2008
Warren K. Gladden, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Warren K. Gladden,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082156
Agency No. ARAPG07JUL04813
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated March 6, 2008, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (black) and age (53) when:
1. he was not referred to the selecting official for consideration for
the following positions (listed with vacancy announcement numbers):
* NCFL06422233D, Program Manager, GS-0340-14
* NEAL06532646, Program Analyst, NH-0343-3
* NEAL06604437, Computer Engineer, GS-0854-13
* NEAL06604437D, Computer Engineer, GS-0854-13
* NEHT07867557, Lean Six Sigma Technical Specialist, YA-031-3
* NEHT07867557D, Lean Six Sigma Technical Specialist, YA-0301-14
* NEHT07867557DR1, Lean Six Sigma Technical Specialist, YA-301-3
* NEHT07867557R1, Lean Six Sigma Technical Specialist, YA-0301-3
* NEAL06711151, Electronic Engineer, NH-0855-4,
and he was referred but not selected for the following positions:
* NEAI06465145, Supervisory Electronics Engineer, GS-0855-12,
* NEAI06465145D, Supervisory Electronics Engineer, GS-0855-12,
and was discriminated against based on reprisal for prior EEO activity
when:
2. on September 24, 2007, when checking the Applicant Notification System
Web-Enabled Response system (ANSWER), he discovered that changes in the
status of his applications for several Army positions had been back-dated
months prior to their actual posting, and
3. the EEO office did not treat his claim seriously and delayed its
processing.
Regarding not being referred to selecting officials, complainant alleged
disparate impact and treatment discrimination. He alleged that the
computerized RESUMIX system which accepts applications and partially
processes them used a search technique of his applications resulting
in the misrepresentation of his skills causing him not to get ratings
sufficient to be referred to selecting officials.
The FAD dismissed the claim 1 jobs for which complainant was not
referred for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
It reasoned that RESUMIX is a computer system that has no knowledge of
complainant's race and age. Specifically ruling on varying positions,
the FAD found complainant was not referred because he (a) did not possess
the required experience/skills, (b) he lacked specialized experience
that he was trained on Lean Six Sigma, (c) he was not reached because
he was not a veteran, and (d) he did not have a current resume on file
for one position.
The FAD dismissed the claim 1 jobs for which complainant was referred
on the grounds that they stated the same claim that had been decided by
the agency. The record contains a November 20, 2007, FAD which dismissed
complainant's claim that he was discriminated against based on race and
age when he was not selected for vacancy announcement numbers NEAI06465145
and NEAI06465145D.1 Accordingly, this dismissal is supported by the
record and is affirmed. 29 C.F.R. � 1614.107(a)(1).
In the alternative, the FAD dismissed the following claim 1 positions
for which complainant was not referred on the grounds that he learned of
the non-referrals on the dates listed below, and initiated EEO counseling
on June 27, 2007, beyond the 45 calendar day time limit to do so:
* NCFL0642233D August 11, 2006
* NEAL06532646 October 31, 2006
* NEAL06604437 November 28, 2006
* NEAL06604437D January 9, 2007
* NEHT07867557 March 20, 2007
* NEHT07867557D March 20, 20072
The FAD dismissed claim 2 for failure to state a claim. It reasoned
that ANSWER is a tool used for the purpose of providing applicants
an update on the status of their self-nominations as the documents
move through the hiring process, and is not a tool for that determines
selection. It reasoned ANSWER is for applicant use, and the backdate
message that appears is an indication of when the message was entered
for all applicants by the human resources specialist. Regarding claim
2, complainant recited that for six of the nine above positions for
which he was not referred, when he viewed ANSWER on July 19, 2007,
there were entries that the recruitment action for these positions had
been cancelled and no one was selected. He wrote that the same occurred
two more of these positions when he viewed ANSWER on September 24, 2007.
He wrote that in each case these entries were backdated to the same date
he was originally not referred. See Table 3 of complainant's January
23, 2008, response to the agency's January 10, 2008, letter to him
requesting clarification of his formal complaint (Table 3). For the
remaining position for which he was not referred, vacancy NEAL06711151,
complainant wrote that he observed in ANSWER on September 24, 2007,
that his self-nomination would not be considered unless he submitted
his resume prior to the closing date of the vacancy announcement, but
this entry was backdated to December 28, 2006. Finally, for vacancy
announcements NEAI06465145 and NEAI06465145D, complainant wrote that he
observed entries in ANSWER on September 24, 2007, respectively, that the
position was filled from another recruitment source and he was referred
but not selected, but they were backdated to January 23, 2007. Id.
Complainant contended that he routinely checked ANSWER, and noticed this
backdating. In dismissing this claim, the FAD reasoned complainant was
not harmed.
The FAD dismissed claim 3 for failure to state a claim.
On appeal, complainant argues, in part, that he timely initiated contact
with an EEO counselor. He argues that he did not suspect discrimination
when he first learned he was not selected, and only began to suspect
discrimination when he saw the backdated entries on ANSWER on July 19,
2007, and thereafter.
In opposition to complainant's appeal, the agency argues in part that
claim 1 fails to state a claim because applicants are responsible for
the content of their resumes which RESUMIX electronically searches for
qualifying experience. Regarding vacancy announcements NEHT07867557,
NEHT07867557D, NEHT07867557DR1, and NEHT07867557R1, Lean Six Sigma
Technical Specialist, the agency contends complainant was not referred
since his resume did not reflect the specialized experience requirements
defined in OPM's Qualification Standards Handbook. It argues that since
complainant is challenging OPM's failure to place him on the certificate
of eligibles (referral list), the appropriate course is to file his
complaint against OPM, not the agency.
In addition to the claim 1 vacancy announcements for which the FAD
found complainant failed to timely initiate EEO counseling, on appeal
the agency adds two more (with dates complainant learned he was not
referred listed):
* NEHT07867557DR1 May 31, 2007
* NEHT07867557R1 May 31, 2007
Citing complainant's appeal brief, attachment 10, it now contends
complainant initially contacted an EEO counselor on July 30, 2007.3
Regarding claim 2, the agency argues on appeal that complainant was not
harmed by the delays in informing him that recruitment actions had been
cancelled since he had already been informed months prior, and in some
cases a year prior, that he was not referred for the position at issue.
Regarding claim 1, with the exception of vacancy announcement
NEAL06711151, we disagree with the FAD's finding that complainant
failed to state a claim. The agency reasoned that RESUMIX is a
computer system that has no knowledge of complainant's race and age.
The Commission rejected a similar rationale used by another agency to
dismiss for misuse of the EEO process a complaint about RESUMIX in the
hiring process. We found that the no knowledge contention may be a factor
that the agency can utilize in addressing the merits of the complaint,
but it did not support misuse. Din v. Department of the Navy, EEOC
Appeal No. 01A30637 (December 3, 2003). Similarly, we find that the
agency's claims regarding the neutrality of RESUMIX, complainant not
being referred because he lacked required experience/skills, and not
being reached because he was a veteran go to the merits of complainant's
claim, not whether it states a claim. Further, while ANSWER indicated
complainant was not referred under vacancy announcements NEHT07867557,
NEHT07867557D, NEHT07867557DR1, and NEHT07867557R1, Lean Six Sigma
Technical Specialist, because his resume did not reflect the specialized
experience requirements defined in OPM's Qualification Standards Handbook,
the record does not show OPM made this determination. It only indicates
that OPM set the standard. In fact, in Enclosure 2, which was attached
to the FAD, the agency CPOC staffing specialist, not an OPM official,
explained why complainant allegedly did not qualify under these vacancy
announcements.
Regarding complainant's non-referral in vacancy announcement NEAL06711151,
the FAD found this did not state a claim because complainant did not
have a current resume on file. The FAD referenced a statement by an
agency staffing official with the Civilian Personnel Operations Center
(CPOC) that this was for a position located in Fort Monmouth, NJ.
The CPOC official explained that it appeared complainant had duplicate
accounts set up in the database, that both accounts were combined, and
the incorrect account was deleted. The CPOC official explained that as
of September 24, 2007, complainant did not have a current resume on file
in order to submit a self-nomination, which explained the ANSWER comment
to this effect. The CPOC official wrote that complainant did apply for
the same position via vacancy announcement number NEAL06711151D, and he
was referred but not selected. This is corroborated by complainant's
submissions, which show the same application closing date, position name,
location, organization, and grade for vacancy announcements NEAL06711151
and NEAL06711151D, and that he was referred under the later announcement.
Given that he was referred for selection for the same position under
vacancy announcement NEAL06711151D,4 we find that complainant was not
harmed by his non-referral under vacancy announcement NEAL06711151.
Accordingly, the FAD's dismissal for failure to state a claim regarding
vacancy NEAL06711151 is affirmed.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency shall extend
the 45 day time limit to initiate EEO counseling where an individual
shows that he did not know and reasonably should not have been known
that the discriminatory matter or personnel action occurred. For the
claim1 six vacancy announcements dismissed by the FAD for untimeliness,
complainant knew, as listed in the FAD, that he was not referred in all
these positions by August 11, 2006 to March 20, 2007. See Table 3, and
complainant's appeal brief, Table 1. Complainant's contention that he
did not suspect discrimination until he started seeing backdated ANSWER
entries on July 19, 2007, is not persuasive. We fail to see how backdated
entries that recruitment actions were cancelled for positions for which
he was previously notified he was not referred triggered a suspicion
of discrimination. Accordingly, the FAD dismissals for untimeliness
are affirmed. However, we find complainant timely intiated EEO contact
regarding his non-referrals to vacancy announcements NEHT07867557DR1
and NEHT07867557R1. He learned of these non-referrals on May 31, 2007,
and contacted an EEO counselor on June 24, 2007, within the 45 day time
limit to do so. Accordingly, the agency's argument that these matters
are also untimely is unpersuasive.
The FAD's dismissal of claim 2 for failure to state a claim is affirmed
because complainant was not harmed, and we don't find that the back dating
would likely deter EEO activity. For eight of the nine positions for
which complainant was not referred, the backdating of entries that the
recruitment action had been cancelled and no one was selected was to the
same dates complainant was notified he was not referred. For the ninth
position, the record shows complainant was previously notified in May
2007 that he had not been selected, and the subsequent backdated entry
regarded complainant not submitting his resume under a different vacancy
announcement for the same position. Finally, for the two positions
for which complainant was referred, NEAI06465145 and NEAI06465145D,
the backdated respective entries indicating that he was not selected
were inconsequential because he was previously notified by personnel
that he was not selected on July 19, 2007. See Gladden v. Department of
the Army, EEOC Appeal No. 0120080751 (February 11, 2008), request for
reconsideration denied, EEOC Request No. 0520080334 (March 18, 2008).
Hence, we agree with the FAD's finding that complainant was not harmed,
and find the backdating would not deter EEO activity.
Claim 3 is dismissed on the grounds that it alleges dissatisfaction
with the processing of a previously filed complaint. 29 C.F.R.
� 1614.107(a)(8).5
ORDER (E0408)
The agency is ordered to process the portion of claim 1 regarding
NEHT07867557DR1 and NEHT07867557R1 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 19848,
Washington, D.C. 20036. 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 (T0408)
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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 18, 2008
__________________
Date
1 In Gladden v. Department of the Army, EEOC Appeal No. 0120080751
(February 11, 2008), request for reconsideration denied, EEOC Request
No. 0520080334 (March 18, 2008), the Commission affirmed the FAD's
dismissal of the complaint for failure to timely initiate contact with
an EEO counselor.
2 In this list, the FAD inadvertently included NEAI06465145, indicating
complainant learned on September 22, 2006, that he had not been referred.
Complainant actually wrote that he learned that he was referred on that
date. However, this matter was also dismissed, as recounted above,
on the grounds that complainant raised it in a prior complaint.
3 In its December 26, 2007, acknowledgment of complainant's complaint,
the agency stated that complainant initiated EEO contact on June 24, 2007
(it stated June 27, 2007 in the FAD). In response to the acknowledgment,
complainant wrote that the letter erred, and he initiated contact on July
30, 2007, and has written elsewhere that he initiated contact on July
30, 2007. We find that the acknowledgment letter from the EEO office,
with its earlier date and written in the normal course of business,
is more reliable regarding initial contact date.
4 Complainant acknowledged learning that he was not selected after being
referred on May 3, 2007. See Table 3.
5 The record reflects that in response to complainant's concerns that
his claim was not being processed by the EEO office, the EEOC Office
of Federal Operation's Complaint Adjudication Division contacted the
agency's EEO Headquarters, and the agency responded that its EEO Director
took over processing of complainant's complaint. Around this time, the
agency moved forward by providing complainant the notice of right to file
his complaint and then, once it was filed, promptly acknowledging it.
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0120082156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082156