0520130521
04-25-2014
Complainant v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520130521
Appeal No. 0120123542
Agency No. SF-12-0604-SSA
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120123542 (May 17, 2013). In its reply to Complainant's request for reconsideration, the Agency also requested reconsideration of the decision. 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(c).
BACKGROUND
The previous decision reversed the Agency's dismissal of Complainant's complaint. Complaint had filed an EEO complaint on the bases of national origin and age when he was not hired and was denied the opportunity to be considered for Claims Representative and Service Representative positions. The Agency dismissed Complainant's complaint for failure to state a claim, finding that Complainant "did not apply for an Agency vacancy," but that the Agency was collecting resumes for future jobs at a job fair. Complainant stated that he was informed that he did not meet the 30-percent disability requirement. The previous decision reversed the Agency's dismissal, finding that by stating that Complainant did not apply for a specific vacant position and that the Agency was merely soliciting resumes, the Agency had gone to the merits of Complainant's complaint, which is irrelevant to the procedural issue of whether he had stated a viable claim under Title VII, the ADEA, and the 29 C.F.R. Part 1614 regulations. It remanded the complaint to the Agency for an investigation and notification to Complainant of his rights to request a hearing or a final agency decision once the investigation was completed.
ARGUMENTS ON RECONSIDERATION
Complainant filed a request for reconsideration in which he argued that his right to file a civil action should be adjusted to account for his complaint being remanded to the Agency for an investigation. He also noted that the decision should read that he "is" a veteran, and not use the past tense "was," and that he applied under the solicitation on the flyer for "Veterans who served on active duty in the Armed Forces during a war, or in a campaign or expedition for which a campaign badge has been authorized." He stated that he had not applied as a veteran with a 30-percent disability rating.
The Agency filed a brief in opposition to Complainant's request for reconsideration in which it argued that Complainant's request should be denied, and in which it filed its own request for reconsideration on the decision. The Agency argued that the previous decision would have a substantial impact on the policies, practices, and operations of the Agency, as it would open the door to substantial numbers of potential, but not actual, applicants filing EEO complaints against the Agency. It noted that Complainant had not applied for an actual opening or in response to a vacancy announcement. The Agency asserted that it used third-party recruiters at events to collect resumes for review for potential future openings. It argued that granting standing to all of these potential applicants would be burdensome, and necessarily change its methods of recruitment. It stated that, "Extending the federal sector discrimination jurisdiction to cover individuals who submitted resumes to a non-government veterans hiring group will have substantially [sic] impact on the Agency's policies, practices and operations." It emphasized that people such as Complainant had not applied under any open vacancy announcement, but had merely submitted a resume to a recruiter at a job fair. It also stated that "the Agency will likely be deterred from soliciting non-federal government organizations from [sic] collecting resumes from employees who may qualify as a Schedule A applicants because it would not be proper to extend legal standing to individuals who do not meet the 1614.103 (employees, applicants and former employees) standard."
Complainant responded to the Agency's request for reconsideration through a submission in which he argued that the Agency was "hosting 'Ticket-Holder' events that solicit resumes from Work Source Centers, delegate authority to the Work Source Centers in the selection process, staffing those events with Agency hiring officials to hire candidates on the spot" and that the Agency had previously filled vacant positions such as those named in his complaint through methods such as this. He argued that, by submitting his resume to an event designed to function as a Schedule A hiring event, where decisions were made about his qualifications, and where an expectation of future employment was held out as a possibility, he was an applicant for employment and therefore had standing to bring an EEO claim.
DETERMINATION
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant's concern centered on his ability to file a civil action concerning his complaint. Under the regulation at 29 C.F.R. � 1614.407, a complainant may file a civil action at various points in time during the administrative processing of an EEO complaint, including at the conclusion of the process after a final action has been issued by the Agency or an appeal decision has been issued by the Commission. As the complaint was remanded to the Agency for further processing, Complainant's time to file a civil action has not run. Complainant's points about his status as a veteran and the solicitation to which he had responded should be made part of the investigative file or raised in the hearings process as evidence in support of his complaint.
We find that the Agency's request for reconsideration also fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices, or operations of the Agency. The Agency raised these same arguments in its opposition brief to Complainant's initial appeal as well. In this instance, the Agency, for all intents and purposes, had used a third party to advertise what appeared to be an announcement of job vacancies and a solicitation to apply to the Agency for employment. Looking at the advertisement for the event in question, the Agency was holding out this event as an opportunity to apply for employment which was open to the individuals who attended, and which specifically targeted veterans. The flyer for this job fair, submitted by Complainant, states: "Contact: Please send resumes to [EG] and receive [an] interview time slot." The flyer also states: "The Social Security Administration is seeking individuals with outstanding customer service skills to fill Contact Representative and Claim Representative positions. These are full-time positions."
If the Agency has concerns that it will be subject to numerous EEO complaints by persons who attend these job fairs but do not successfully obtain employment, then it needs to insure that the flyers and information disseminated about the events by third-party recruiters do not mislead attendees as to the nature of the event, or as to the recruiters' authority to make hiring decisions on behalf of the Agency. It should be made clear to attendees that persons who submit resumes for these events, even if subsequently interviewed by the third-party recruiter, are not applying for actual present vacancies, but may be considered for employment by the Agency in the future.
We remind both Complainant and the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Neither party has done so here.
We note that it appears that the Agency continued with the processing of Complainant's complaint by conducting an investigation and issuing Complainant his right to request a hearing, despite having filed a request for reconsideration. Further, Commission records reflect that on February 4, 2014, Complainant requested a hearing on his complaint, which is currently pending in the Los Angeles District Office. Nonetheless, to insure that Complainant's rights are adequately protected, we include below an order for the Agency to continue the processing of Complainant's complaint.
CONCLUSION
After reviewing 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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120123542 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (E0610)
To the extent it has not already done so, the Agency is ordered to process the remanded claims 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 (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (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
April 25, 2014
Date
2
0520130521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013