01a54664
10-05-2005
Kevin MJ Kools v. Department of Veterans Affairs
01A54664
October 5, 2005
.
Kevin MJ Kools,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54664
Agency No. 2004-0637-2005101396
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated May 20, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of sex (male) when he was not selected for the position of
Medical Instrument Technician (Cardiac Catheterization), GS-0649-8/8,
Announcement Number VAR-SO-3-2857.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency determined that
complainant failed to demonstrate that he suffered adverse employment
harm because the position complainant applied for had not been filled
and was still vacant at the time of his complaint.
On appeal, complainant argues that someone had been hired for the position
in question and disputes the statement Human Resources Specialist gave
to the EEO Counselor indicating that the position was never filled.
In response, the agency restates the position it took in its FAD and
requests that we affirm its final order.
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,
� 1614.106(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). To state a claim under the
Commission's regulations, an employee must allege and show an injury
in fact. Specifically, an employee must allege and show a "direct,
personal deprivation at the hands of the employer," that is, a present
and unresolved harm or loss affecting a term, condition, or privilege
of his employment. Id.
Upon review, we find that the record contains insufficient evidence for
the Commission to determine whether the position of Medical Instrument
Technician (Cardiac Catheterization), GS-0649-8/8, Vacancy Announcement
VAR-SO-3-2857, was ever filled during the relevant time period.
The agency argues on appeal that Human Resources Specialist informed the
EEO Counselor that the subject position was not filled due to financial
considerations, that it would be re-announced in the future, and that
complainant could apply for the position once it was re-announced.
However the record is void of evidence that the position remained unfilled
or that it would be re-announced in the future. Consequently, we remand
this matter to the agency to conduct a supplemental investigation to
determine whether complainant was not selected for the position.
Accordingly, the agency's decision to dismiss the complaint is VACATED,
and the complaint REMANDED to the agency for further processing in
accordance with the ORDER below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation to
determine whether the position of Medical Instrument Technician (Cardiac
Catheterization), GS-0649-8/8, Vacancy Announcement VAR-SO-3-2857
was filled. The agency shall supplement the record with any relevant
documentation obtained as a result of its investigation, specifically
including affidavits from complainant, the named Human Resources
Specialist who indicated that the position had not been filled and was
still vacant during the time period in question, and any other relevant
personnel. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall issue a notice of processing and/or a
new decision concerning complainant's claim.
A copy of the agency's notice of processing and/or new decision must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (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 (R0900)
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 (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
October 5, 2005
__________________
Date