01a55373
01-06-2006
Angela P. Handley, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Angela P. Handley v. Department of the Army
01A55373
January 6, 2006
.
Angela P. Handley,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55373
Agency No. ARROCK03SEP0061
DECISION
Complainant initiated an appeal from a final decision concerning her
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was an
applicant for employment as an Engineering Technician at the agency's
Rock Island Arsenal facility in Illinois. Complainant sought EEO
counseling and subsequently filed a formal complaint on December 16,
2003, alleging that she was discriminated against on the bases of race
(Hispanic), national origin (Mexican), sex (female), age (54), and
reprisal for prior EEO activity when:
On July 22, 2003, complainant learned that she was not referred for
consideration on vacancy announcement number NCBG03267165, for the
position of Engineering Technician, GS-11 at Rock Island Arsenal (RIA).
Unidentified applicants were disparately impacted when they were not
allowed to apply for or be considered for unspecified vacancies, and
applicant pools were not opened to include women and minorities.
Some unspecified person(s) did not follow Uniform Guidelines on Employee
Selection Procedures with regard to a Hispanic female who was not rated
for an Engineering Technician vacancy.
The Rock Island Arsenal Civilian Personnel Advisory Center (CPAC), North
Central Civilian Personnel Operations Center (CROC), and unspecified
managers in unidentified agencies keep vacancies internal despite
complainant's claim that Hispanics are under represented in the general
Federal workforce.
Complainant self-nominated herself for at least fifty vacancies since
1999, and received consideration for only two vacancies, both of which
were ultimately cancelled.
Complainant was not considered for unspecified training level or entry
level vacancies subsequent to July 2003.
Complainant's non-selection was based on non-merit related factors and
constitutes a continuing violation.
By letter dated April 26, 2004, complainant was notified that claim (a)
was accepted for investigation and that claims (b) through (g) were not
accepted for investigation and were dismissed. The agency dismissed
claims (b), (c), (d), and (g) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The agency found that these claims allege
a generalized grievance and do not allege harm or injury specific to
complainant. The agency further found that claims (b) through (e) were
untimely, in that they were not presented for EEO counseling within 45
days of the date they occurred. The agency therefore dismissed claims
(b) through (e) pursuant to 29 C.F.R. � 1614.107(a)(2). Further,
the agency dismissed claims (b) through (g) for failure to cooperate,
pursuant to 29 C.F.R. � 1614.107(a)(7). The agency's decision recounted
that complainant had been asked to clarify her otherwise too general and
vague claims. The agency requested that complainant specify the agency
involved, the dates on which she believed discrimination occurred and the
harm she suffered. When complainant failed to respond appropriately, the
agency determined that it lacked sufficient information in the record to
adjudicate claims (b) through (g). The agency's final decision adopted
its earlier analysis and dismissal of claims (b) through (g).
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its decision, dated June 27, 2005, the agency concluded that
complainant was not eligible to apply for the subject vacancy,
and therefore complainant failed to establish a prima facie case of
discrimination on any basis. Specifically, the agency found that the
area of consideration for the position of Engineering Technician, Vacancy
Announcement number NCBG03267165, once the agency had cleared its own
priority placement program (PPP) and re-employment eligibles placement
list (RPL), was limited to Interagency Career Transition Assistance
Plan (ICTAP) and veteran applicants, and that complainant was neither
a veteran, nor an ICTAP applicant, since she previously worked for
the agency. Further, the agency found that in the selection process,
once the agency determined that no qualified ICTAP or veteran applicants
had applied, the agency filled the position on a non-competitive basis
with a candidate who had been name-requested by the selecting official.
The agency noted that after complainant's separation in 1999, pursuant
to a reduction in force (RIF), complainant's eligibility for the PPP
expired in September 2000, and for the RPL, her eligibility expired in
September 2001.
Untimely claims
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find that the agency properly dismissed claims (b) through (e) pursuant
to 29 C.F.R. � 1614.107(a)(2). Complainant has failed to clearly identify
any specific incident in clams (b) - (e) that occurred within 45 days
of her initial EEO Counselor contact on August 4, 2003.
Failure to state a claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We concur with the agency that claims (b) through (g) are vague and
several represent generalized claims, void of any specific information
that would permit the agency to investigate complainant's particular
injury or incidents of alleged discrimination. Moreover, we find the
agency provided complainant with the opportunity to clarify her claims,
which complainant failed to do. Accordingly, we find claims (b) through
(g) are properly dismissed.
Non-selection (claim (a))
With respect to claim (a), the Commission concurs with the agency's
determination that complainant failed to establish a prima facie case of
discrimination on any basis. Specifically, we find that complainant was
not qualified for the subject position because she was not within the area
of consideration and nothing in the record indicates that complainant's
race, national origin, age, sex or prior protected activity played any
role in the agency's decision to fill the vacancy non-competitively.
We find the agency's finding supported by the statement of the selecting
official who stated that he chose to �name-request� the selectee because
he was aware that the selectee was possibly seeking new employment, that
the selectee had worked for the agency before, and had specific skills
(knowledge of Micro Station software, public works, utility drawings
and building drawings) that the agency needed. We find the agency has
articulated legitimate reasons for conducting the selection process
by requesting the selectee by name, which resulted in complainant's
application and qualifications not being compared to the selectee or
considered by the selecting official.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that both complainant and the selectee are within the protected
age group under the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Therefore, after a careful review of the record, we AFFIRM the agency's
final decision.
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 (S0900)
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. 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 (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
January 6, 2006
__________________
Date