02A20017
08-05-2002
Agency.
Mark G. Charles v. Social Security Administration
02A20017
August 5, 2002
.
Mark G. Charles,
Grievant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 02A20017
DECISION
Grievant initiated this appeal with the Commission from the agency's
step three grievance decision, dated November 30, 2000, as permitted
under 29 C.F.R. � 1614.401(d). The appeal is accepted pursuant to 29
C.F.R. � 1614.405. In his grievance, grievant claimed, amongst other
things, that the agency discriminated against him in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq., on the bases of his race (white) and sex when, on June 19,
2000, he was not selected to fill a vacant Claims Examiner position.
The record indicates that at the step one grievance level, the
grievance was reviewed and denied by the selecting official (SO) for
the nonselection decision at issue in the grievance. SO stated that
she received a �well qualified candidates list� of 173 candidates, as
well as a lateral reassignment list of six candidates, for the thirty
available positions. SO further stated that, in making her selection
decision, she considered �all the information available to her regarding
the candidates' overall qualifications, including their knowledge, skills,
and abilities as demonstrated by their work experiences, accomplishments,
training/education and awards which were relevant to the vacancy.�
SO concluded that grievant had not presented sufficient evidence to
allow a conclusion that he should have been selected for the position
in question. SO made no mention in her decision of complainant's race
or sex discrimination claims.
On November 30, 2000, a final decision denying the grievance was
rendered by the step three grievance reviewing official (RO).<1> In that
decision, which forms the basis of this appeal, RO stated that grievant
had made an oral presentation to RO on November 21, 2000, and that,
�after carefully reviewing all the issues that were outlined in [the]
grievance, EEO complaint and oral presentation, as well as a review of
. . . applicable policies and procedures,� he had found no evidence of
a violation of the merit promotion selection process. RO stated that
his review of the matter indicated that grievant had been given equal
consideration as to his experience and qualifications, and that SO had
used job-related criteria as the basis for the selections she made.
RO also found that there was no evidence of any unlawful sex or race
discrimination in the selection process.<2>
After a thorough review of the record on appeal, we find that the record
lacks sufficient information to permit the Commission to decide whether
or not grievant was subjected to unlawful race or sex discrimination
as claimed. The only evidence pertaining to the subject grievance which
has been submitted on appeal has been supplied by grievant in support of
his appeal. This evidence includes a copy of the step three grievance
decision, an incomplete copy of the step one grievance decision, and
redacted copies of the well qualified candidate list for the nonselection
in question. The agency has failed to present any documentation relating
to the grievance which would permit the Commission to render a decision
on grievant's race and sex discrimination claims, such as official copies
of the decisions rendered at each step of the grievance proceedings;
evidence regarding each candidate's and eventual selectee's race,
sex, and qualifications for the position at issue, including similar
qualification information regarding grievant; a copy of the vacancy
notice or job description for the position at issue; or documentation
presented to and/or relied upon by SO in making her selection decision.
This absence of evidence leaves the record on appeal lacking information
necessary for our examination of grievant's claims.
Accordingly, as the aforementioned absent information is essential for
the Commission to render a decision on grievant's appeal, we conclude
that the record at present is inadequate to permit proper examination of
the race and sex discrimination claims presented by grievant. Therefore,
it is the decision of the Commission to REMAND the matter to the agency
to conduct a supplemental investigation into grievant's claims, and
to provide grievant the opportunity to appeal the November 30, 2000
step three grievance decision upon the completion of the supplemental
investigation, as ordered below.
ORDER
The agency is ordered to take the following remedial action:
The agency shall conduct a supplemental investigation of the subject
grievance, which shall include the gathering of all appropriate
documentation or other evidence relevant to grievant's allegation of
unlawful discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., including,
but not limited to, official copies of the decisions rendered at each
step of the grievance proceedings; documentation regarding the race and
sex of all the candidates for the position at issue; documents relied upon
by the selecting official in assessing the relative qualifications of the
candidates, including any and all documents relied upon by the selecting
official which contain information regarding the candidates' knowledge,
skills, and abilities as demonstrated by their work experiences,
accomplishments, training/education and awards which were relevant
to the vacancy, or any other information relied upon by the selecting
official in making her selection decision; a copy of the vacancy notice
and job description for the position at issue; and any other documentation
relating to the instant grievance.
The agency shall complete the supplemental investigation described in
paragraph (1) above within sixty (60) calendar days of the date this
decision becomes final. The agency shall provide a copy of any and all
documents generated by the above-mentioned supplemental investigation to
grievant, or, if he has a representative, to the representative, within
thirty (30) calendar days of the date the supplemental investigation
is completed. The agency shall also include a copy of any and all
documents generated by the above-mentioned supplemental investigation in
the compliance report it submits to the Commission, as described below
in the paragraph entitled �Implementation of the Commission's Decision.�
The agency shall provide grievant with the right to appeal the November
30, 2000 third step grievance decision to the Commission, pursuant to 29
C.F.R. � 1614.403, within thirty (30) days of grievant's receipt, or, if
he has a representative, receipt by the representative, of his copy of the
agency's supplemental investigation, as ordered in paragraph (2) above.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 (M0701)
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 (R0900)
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 (Z1199)
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
August 5, 2002
Date
1 The record on appeal does not contain a copy of the step two grievance
decision.
2 RO indicated that he also found no evidence of any religious
discrimination in the selection process, but there is no indication
in the materials submitted by grievant that he had raised a claim of
religious discrimination.