0520110352
06-09-2011
William D. Gerdes, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
William D. Gerdes,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Request No. 0520110352
Appeal Nos. 0120080054
0120092211
0120102200
Agency Nos. HS-06-CIS-003702
HS-98-CIS-000204
DENIAL
Complainant timely requested reconsideration of the decision in William
D. Gerdes v. Dep’t of Homeland Security, EEOC Appeal Nos. 0120080054,
0120092211, 0120102200 (Feb. 4, 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 previous decision found that the Agency did not err in finding
that Complainant untimely raised allegations that a prior settlement
agreement was violated with respect to his non-selection for three
vacancies, and that the Agency was in compliance with respect to three
other non-selections.
In his request to reconsider, Complainant maintains that the previous
decision clearly erred in determining that he did not timely notify
the EEO director of non-compliance with respect to Vacancy #2, when the
Agency did not consider him in good faith for the position of Assistant
Center Director, Customer Relations (Vacancy No. CIS-117897-NBC).1
The previous decision found that Complainant was notified of the
non-selection by August 16, 2006 at the latest, and that he did not
contact the EEO Director until March 21, 2007, which was beyond the
30-day limitation period imposed by 29 C.F.R. § 1614.504(a). However,
Complainant maintains that the relevant starting date for the limitation
period should be September 28, 2006, when the Agency notified him that
he would not be considered for Vacancy #2, and that he contacted an EEO
counselor on October 5, 2006 to learn what paperwork was needed to file
a breach of settlement agreement claim.
The record contains numerous e-mails, revealing that as early as August
10, 2006, Complainant could not successfully submit his application
through usajobs.opm.gov and sought assistance. After several follow ups,
the Agency notified Complainant on September 27, 2006 that his resume
had not been included in his first attempt to apply for the vacancy,
and that he did not answer the time-in-grade question in his second
attempt to apply for the position. Complainant responded by email
that he expected the Agency to still consider him for this vacancy even
though the time to submit a completed application had passed. The Agency
responded on September 28, 2006, informing Complainant that the Agency
could not consider him for this announcement because it was open to a
local commuting area, an area that did not encompass Complainant’s
current employment location.
Notwithstanding the finding of the previous decision that Complainant
untimely notified the EEO Director of the breach of settlement agreement
in March 2007, we find that, based on the plain meaning rule, there was
no violation of the settlement agreement with respect to Complainant’s
non-selection for the position of Assistant Center Director, Customer
Relations. The settlement agreement provided that the Agency would
consider Complainant “in good faith for any position for which he
may apply and for which he may qualify.” The Agency explained that
the computer system had disqualified his application for the position
at issue because (1) he did not answer the time-in-grade question,
and (2) the listing was limited to those employees living in the local
commuting area and Complainant did not live in that area. We find that
the relevant provision of the settlement agreement did not obligate the
Agency to consider a job application that was incorrectly filled out by
Complainant and did not apply to him, geographically.
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. The decision in EEOC Appeal Nos. 0120080054, 0120092211, and
0120102200 remain the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. 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. 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.
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
___6/9/11_______________
Date
1 Complainant does not contest the previous decision’s determination
regarding Vacancy Nos. 1, 3, 4, 5, or 6.
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0520110352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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