01991264
03-16-2000
Calvin E. Williams, Complainant, v. Janice R. Lachance, Acting Director, Office of Personnel Management, Agency.
Calvin E. Williams v. Office of Personnel Management
01991264
March 16, 2000
Calvin E. Williams, )
Complainant, )
)
v. ) Appeal No. 01991264
) Agency No. 98-25
Janice R. Lachance, )
Acting Director, )
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
On November 30, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated November 20, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the basis of physical disability when:
He was not selected for a WG-5703-7 Motor Vehicle Operator position
with the Department of the Navy; and
He was not selected for a WG-5301-10 Heating and Air Conditioning
Mechanic position with the Department of the Army.
The agency dismissed the complaint for failure to state a claim.
Specifically, the Office of Personnel Management (OPM) found that
complainant suffered no harm from its actions, and that the Army and Navy,
not OPM, made the selections for the WG-7 and WG-10 positions. Further,
OPM found that it listed complainant as qualified for the Motor Vehicle
Operator position. OPM also notes that complainant filed a complaint
concerning his non-selection for the Heating and Air Conditioning Mechanic
position with the Department of the Army.
In his formal complaint, dated July 5, 1998, complainant alleged that
despite his qualifications he was not selected for or even interviewed
for the positions. Complainant seeks a WG-10 or higher position.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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
22, 1994).
In the present case, we find that although OPM may have listed complainant
as qualified, or even rated and ranked his application, the ultimate
decision for hiring rested with the hiring agency, not OPM. Therefore,
claims concerning the hiring decisions of other agencies do not state
a claim against OPM. See Redmon v. Office of Personnel Management,
EEOC Appeal No. 01990627 (July 7, 1999) (finding that claim concerning
non-selection for Social Security Administration position based on OPM
rankings failed to state a claim); Watts v. Department of Justice, EEOC
Appeal No. 01982176 (March 2, 1999) (finding that despite the Department
of Justice argument that OPM found complainant medically unsuitable for
the position, the decision not to hire the complainant based on OPM's
findings rests with the Department of Justice, not OPM).
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 16, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.