05960706
10-09-1998
Edward W. Minnis, Appellant, v. I. Michael Heyman, Secretary, Smithsonian Institution, Agency.
Edward W. Minnis, )
Appellant, )
) Request Nos. 05960706
v. ) 05960518
) Appeal Nos. 01954925
I. Michael Heyman, ) 01954322
Secretary, )
Smithsonian Institution, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On May 8, 1996, Edward W. Minnis (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Edward W. Minnis v. Michael
Heyman, Secretary, Smithsonian Institution, EEOC Appeal No. 01954322
(April 5, 1996), received by appellant's attorney on April 8, 1996.
On July 16, 1996, appellant initiated an appeal to the Commission
to reconsider the decision in Edward W. Minnis v. Michael Heyman,
Secretary, Smithsonian Institution, EEOC Appeal No. 01954925
(June 10, 1996), received by appellant's attorney on June 17, 1996.
The Commission has determined that the requests are appropriate for
consolidation. EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
first request is granted, and his second request is denied.
ISSUES PRESENTED
The issues presented herein are: 1. whether the decision in EEOC Appeal
No. 01954322 (Decision 1) properly affirmed the agency's dismissal of
appellant's complaint for failure to state a claim; and 2. whether the
decision in EEOC Appeal No. 01954925 (Decision 2) properly dismissed
appellant's appeal as being untimely.
BACKGROUND
The record in this case reveals that appellant contacted the EEO
Supervisor on September 8, 1994, and subsequently filed a formal EEO
complaint alleging that he had been discriminated against on the
basis of his sex (male) when he was not selected for a permanent
Police Officer position at the agency's National Zoological Park
under vacancy announcement number SI-DEU-4-023. Appellant had been
hired as a temporary Police Officer in March 1994 for a period not to
exceed one year, and voluntarily resigned effective August 13, 1994.
Appellant stated that during the week of August 7, 1994, he obtained a
copy of the February 1994 vacancy announcement stating that the position
was open to qualified females.
In its final decision dated April 13, 1995, the agency dismissed
appellant's complaint for failure to state a claim. The agency stated
that it had no record of an application being submitted for the vacancy
announcement in question. Thus, the agency noted that appellant was
neither an employee nor an applicant for employment at the time he sought
counseling and filed his formal complaint.
Appellant received the final agency decision through his attorney of
record on April 19, 1995, and submitted an appeal to the Commission,
which was postmarked May 18, 1995. The appeal was docketed as EEOC Appeal
No. 01954322. Appellant subsequently submitted a brief in support of
his appeal on June 19, 1995, which was docketed as a separate appeal
under EEOC Appeal No. 01954925. In his brief, appellant asserted that
he constructively applied for a permanent position under the vacancy
announcement in question. Specifically, appellant stated that he
advised the Director of Police and Communications, when he submitted
his application, that he did not have an announcement number, and was
told that the Director would take care of it. Appellant stated that
the Director then told him, in April and May 1994, that he had a good
chance of being hired for a permanent position.
Decision 1 affirmed the agency's dismissal of appellant's complaint.
Specifically, Decision 1 stated that appellant did not contest the
agency's assertion that he did not apply for a permanent position under
the vacancy announcement in question. Decision 1 declined to address
the agency's contention, in response to the appeal, that the matter was
not timely raised with an EEO Counselor.
Decision 2 dismissed appellant's appeal, which it described as being
postmarked June 19, 1995, as being untimely.
In his requests for reconsideration, appellant reiterated that he
constructively applied for a permanent position under the vacancy
announcement in question. Appellant stated that, during the period of his
temporary employment, three females were hired for permanent positions,
while four males were hired for temporary positions. Appellant contended
that he was one of the most experienced and knowledgeable members of the
agency's police force. Appellant questioned the issuance of two decisions
regarding his complaint, stating that his appeal was in fact timely.<1>
The agency countered that appellant's requests do not meet the criteria
for reconsideration, and that the dismissal of appellant's complaint
was proper. The agency stated that, despite appellant's assertion
that he believed he was applying for a permanent position when he
responded to an advertisement, the only advertisement placed at the
time appellant submitted his application was for temporary positions.
The agency noted that appellant's application indicated that it was
being submitted under the agency's Applicant Supply File System used
to hire temporary employees, and that appellant would be willing to
accept a temporary position. The agency stated that the Director had
no affirmative duty to inform appellant of permanent vacancies, which
were conspicuously posted in the Office of Human Resources. Finally,
the agency noted that appellant had constructive notice of the vacancy
announcement no later than March 22, 1994, that is, the announcement's
closing date, and, as such, failed to timely contact an EEO Counselor.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission grants appellant's request for reconsideration of Decision
1, but denies appellant's request with regard to Decision 2.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. The previous decision stated that appellant did not
contest the agency's assertion that he failed to apply for the vacancy
announcement in question. Appellant, however, stated that he submitted an
application to the Director during the period in which the announcement
was posted and was told the Director would take care of adding the
announcement number. Appellant also stated that the Director advised him,
in April and May 1994, that he had a good chance of obtaining a permanent
position, and that females were hired for such positions during that time.
Accordingly, the Commission finds that appellant has stated a claim of
discrimination sufficient to warrant an investigation on the merits of
the allegation.
Furthermore, we find that appellant timely contacted an EEO Counselor with
regard to the matter at issue. Appellant stated that he did not learn of
the alleged discrimination until he obtained a copy of the announcement
on August 7, 1994, at which time, he noticed that the permanent position
was open only to females. Thus, the Commission will remand the complaint
to the agency for further processing.
With regard to Decision 2, the Commission acknowledges that appellant's
brief in support of his appeal from the April 1995 final decision was
mistakenly given a separate docket number. Nevertheless, appellant
indicated that while he received a letter acknowledging that an appeal
had been filed in June 1995, he did not notify the Commission of any
earlier filing or possible error. Furthermore, given our decision
above concerning the dismissal of appellant's complaint, we find that
the issuance of Decision 2 constituted harmless error.
CONCLUSION
After a review of appellant's requests for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
first request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it
is therefore the decision of the Commission to GRANT appellant's first
request. The decision in EEOC Appeal No. 01954322 (April 5, 1996), and
the final agency decision are hereby REVERSED. The agency shall comply
with the terms of the Order set forth below. It is the decision of the
Commission to deny appellant's second request regarding the decision in
EEOC Appeal No. 01954925 (June 10, 1996). There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date the agency receives this decision. The agency shall
issue to appellant a copy of the investigative file and also shall
notify appellant of the appropriate rights within one hundred fifty
(150) calendar days of the date the agency receives this decision, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the correspondence that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THAT THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 9, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat1While appellant
asserted that he should receive interim
attorney's fees, the Commission's
regulations do not provide for such
an award.