David B. Broughton, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 5, 2009
0120092131 (E.E.O.C. Aug. 5, 2009)

0120092131

08-05-2009

David B. Broughton, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.


David B. Broughton,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120092131

Agency No. 2008-22260-FAA-03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated March 24, 2009, dismissing his complaint of unlawful

employment discrimination in violation of the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

Upon review, the Commission finds that the agency improperly dismissed

complainant's complaint.

On October 29, 2008, the agency accepted complainant's complaint in

which complainant alleged that he was subjected to discrimination on

the basis of age (50) when:

he was advised on August 22, 2008, that he was not selected for a Staff

Position at the Jacksonville ARTCC that was advertised under vacancy

announcement number ASO-ATO-08-A023-100351 and a younger employee was

selected.

Subsequently, in its March 24, 2009 final decision, the agency dismissed

complainant's complaint for failure to state a claim. Specifically,

the agency stated that "[d]uring the investigation . . . it was revealed

that another employee was selected for this position, but declined the

position. Finally, it was ascertained that the position still has not

been filled and the vacancy announcement was cancelled."

"Generally, where the agency cancels a vacancy announcement without making

a selection, [complainant] does not suffer any personal harm that would

render him aggrieved and therefore fails to state a claim." Van Nest

v. Department of the Army, EEOC Request No. 05960752 (November 20, 1998)

(citing Grace v. Department of the Army, EEOC Request No. 05940969 (May

18, 1995)). However, as established in Van Nest, "when [complainant]

alleges that the agency canceled a vacancy after making a selection,

and that the cancellation occurred under circumstances suggesting a

deliberate intent to avoid selecting him, he states a claim." In Campos

v. Department of Defense, EEOC Request No. 0120073430 (October 4, 2007),

the Commission found that a complaint pertaining to a nonselection stated

a claim because "a selection was made, albeit later declined."

In the instant matter, complainant applied for the position and the

position was offered to another applicant. See Interrogatory Response of

Recommending Selecting Official (RSO) dated February 24, 2009. As in

Campos, after the selection, the selectee withdrew his application

and the vacancy was cancelled. See Withdrawal letter from Selectee

dated March 25, 2008; see also Final Agency Decision dated March 24,

2009. Accordingly, the agency's final decision dismissing complainant's

complaint is reversed. The matter is hereby remanded to the agency for

further processing in accordance with this decision and the Order below.

ORDER

The agency is ordered to process the remanded claims in accordance

with 29 C.F.R. � 1614.108. The agency is ORDERED to resume processing

of complainant's complaint from the point where processing ceased.

The agency shall acknowledge to complainant that it has reinstated and

resumed processing of complainant's complaint.

A copy of the agency's letter of acknowledgment to complainant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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

August 5, 2009

Date

2

01-2009-2131

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120092131