0120073144
06-17-2009
Larry M. Dow, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Larry M. Dow,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120073144
Agency No. 2007020
DECISION
Complainant filed an appeal with this Commission from the Office of
Personnel Management's (OPM's) final decision dated June 14, 2007,
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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleges that he was subjected to discrimination on the
bases of race (African-American) and disability (orthopedic ailment)
when OPM authorized the General Services Administration (GSA) to use the
Outstanding Scholar Program1 (OSP) to fill a competitive service position
(Chief People Officer Intern, GS-301-7) with a Caucasian, non-disabled
applicant who had not passed a competitive examination and who had
not been specifically excepted from examination under 5 U.S.C. � 3302,
rather than selecting complainant for the position.
BACKGROUND
The record reflects that in June 2000, complainant, a 30-point
African-American veteran, took a competitive examination in connection
with his application for appointment to a GS-301-07 Chief People Officer
Intern position with GSA. OPM generated a certificate of eligible
applicants and provided it to GSA, which ranked complainant as the top
candidate. GSA did not appoint complainant to the position. Rather,
GSA sought to cancel the competitive announcement and instead fill the
vacant positions with non-competitive, non-veteran Caucasian candidates
from the OSP. After learning of the GSA's actions, complainant filed a
Veterans' Employment Opportunities Act of 1998 (VEOA) complaint against
GSA with the Merit Systems Protection Board (MSPB). See Dow v. General
Services Agency, MSPB Docket No. SF-3443-02-0159-N9 (March 23, 2007).
On March 23, 2007, the MSPB ruled in complainant's favor2 and ordered
GSA to "reconstruct the hiring process for the position in a legal
manner," which included removing the individuals currently occupying
the positions.
Separate from the MSPB action, on February 20, 2007, complainant initiated
contact with OPM's Equal Employment Opportunity Office. The statements
provided in complainant's EEO Counselor Report and Formal Complaint
lack many details.3 However, a fair reading of the allegations raised
in the complaint, along with other documents in the record, indicates
that complainant alleges that in May and October 2000, and thereafter,
OPM announced the Chief People Officer position and authorized the illegal
and discriminatory appointment of non-eligible Caucasian applicants over
complainant, an eligible African-American, disabled veteran who was
ranked number one on OPM's list of qualified and eligible applicants.
Complainant also asserts in his formal EEO complaint that African-American
appointees were placed under different classifications, pay grades,
and series than similarly-situated Caucasian appointees.4
Specifically, the record reveals that in February and March 2007,
complainant obtained new information pertaining to the selection process
of the Chief People Officer Intern position during the investigation
and discovery process related to the MSPB action filed against GSA.
Complainant asserts that GSA affirmed that it did not have "direct
hire authority," which suggested that OPM retained and exercised
its authority over the Chief People Officer Intern selection process.
In addition, complainant asserts that GSA's General Counsel advised him
that GSA follows the guidance of OPM with respect to the use of the OSP.
Complainant further asserts that the selection of non-competitive
Caucasian applicants to fill a competitive position over the selection
of complainant (i.e., an African-American with veterans' preference
status who, despite his exempt status, nevertheless took and passed the
requisite examination and ranked number one on the certificate of eligible
applicants) is a personnel action that requires OPM approval under 5
C.F.R. � 3302.5 Lastly, complainant states that he also recently learned
that the OSP vacancies were filled by Caucasian, non-veteran applicants.
On June 13, 2007, OPM issued a final agency decision (FAD) dismissing
the complaint for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). OPM determined that complainant was unable to show that
the agency actually had any involvement or harmed him in any actionable
manner. According to the agency, complainant did not produce any evidence
showing OPM actually offered guidance or authorization to GSA for GSA to
make any selections using the OSP. Moreover, the agency asserts that the
record shows that OPM does not provide any guidance on or authorization of
the use of the OSP. Rather, OPM asserts that it instructs each agency to
confer with its own general counsel about the implication of the relevant
MSPB decisions for their agency's own hiring practices. OPM also found
that the claim concerned GSA's exercise of its own discretion to use
the OSP and to select specific applicants (decisions in which it states
it did not have involvement or the authority to influence) and as such,
this claim is not properly pursued against OPM. OPM concluded in its FAD
that complainant failed to produce any evidence showing that OPM caused
him a harm or loss with respect to a term, condition, or privilege of
employment. Accordingly, OPM held that complainant did not establish that
he suffered a personal loss or harm sufficient to render him aggrieved.
FINDINGS AND ANALYSIS
From the record, it appears that OPM contends that it did not
authorize GSA's decision to hire non-eligible Caucasian applicants over
complainant.6 On the other hand, complainant asserts that OPM did indeed
discriminate against him by permitting GSA to pass over him and hire
individuals outside his protected classes for the Chief People Officer
Intern position. We thus consider whether OPM should have processed
complainant's EEO complaint instead of dismissing it for failure to
state a claim.
The Commission has previously held that the agency that allegedly
discriminated against a complainant need not be the agency that employed
or considered him for employment. See, e.g., Horvath v. Office of
Personnel Management, EEOC Appeal No. 01956761 (October 25, 1996)
(noting that a complainant is required to file his complaint against
the particular agency which allegedly has discriminated against him
regarding a term, condition, or privilege of employment, even where
the allegedly discriminating agency is not the employing agency).
See also 29 C.F.R. � 1614.106(a) (which states that a complainant may
file a complaint with "the agency that allegedly discriminated against
the complainant"). See also, Koch v. Office of Personnel Management,
EEOC Appeal No. 01A13849 (December 21, 2001).
Here, complainant repeatedly has articulated his view that OPM
had discriminated against him by permitting GSA to pass over him
and fill the Chief People Officer Intern position with individuals
outside his protected classes. OPM appears to argue that complainant
failed to present sufficient proof that OPM had any involvement in the
non-selection of complainant for the position of Chief People Officer
Intern. However, complainant's belief alone is enough to enable him to
file a discrimination claim with OPM. See Id., citing Pion v. Office
of Personnel Management, EEOC Request No. 05880891 (October 18, 1988)
(noting that the forerunner to current 29 C.F.R. � 1614.106(a) had once
been amended precisely to guarantee the right of complainants "to bring
a complaint against any agency they believed engaged in discriminatory
conduct" [emphasis added]).7
Accordingly, based upon our findings and analysis above, we conclude
that OPM erred when it dismissed complainant's complaint for failure
to state a claim under 29 C.F.R. � 1614.107(a)(1). We conclude that
complainant had the right to file his complaint initially with OPM,
because he believed and alleged that OPM had discriminated against him
pertaining to his non-selection.
We note, however, that complainant's complaint raises allegations that OPM
discriminated against him by violating provisions of federal personnel
laws, which violations are appealable to MSPB. As such, complainant
has asserted a "mixed case" complaint. See 29 C.F.R. � 1614.302.
Therefore, OPM will investigate the complaint, and upon issuance of its
final decision, will give complainant further appeal rights to MSPB,
and not to EEOC.8
CONCLUSION
Accordingly, OPM's final decision is REVERSED, and the case is REMANDED
for processing in accordance with this decision and the Order of the
Commission, below.
ORDER
The Office of Personnel Management is ORDERED to process the remanded
claim as a mixed-case complaint in accordance with 29 C.F.R. � 1614.302.
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 (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
June 17, 2009
Date
1 The record indicates that the purpose of the Outstanding Scholar
Program is to mitigate the adverse impact of examination on Black and
Hispanics applicants. It does so by remedying the under-representation
of members of a class action through their noncompetitive appointment
as Outstanding Scholars.
2 Specifically, MSPB concluded that GSA violated complainant's
veterans-preference rights when it appointed an individual who had not
passed a competitive examination, and who had not been specifically
excepted from examination under 5 U.S.C. � 3302, to the CPO Intern
position in the competitive service. The MSPB also held that GSA's
actions had the effect of nullifying complainant's veterans' preference.
3 OPM seemingly failed to obtain and present sufficient details of
complainant's allegations during the EEO counseling and formal complaint
process.
4 This particular claim was not fully developed in the record; however,
it does not appear from the record that complainant was affected by
this claim, because the record shows that he was never appointed to any
position. Accordingly, we find that this particular allegation fails
to state a claim upon which relief may be granted. See 29 C.F.R. �
1614.107(a)(1).
5 Under 5 U.S.C � 3304(b), an individual may be appointed in the
competitive civil service only if the individual has passed an examination
or is "specifically exempted from examination under section 3302 of this
title."
6 OPM's Human Resources Specialist (HRS) asserts that OPM did not
authorize the actions alleged by complainant. Specifically, HRS states
that the Delegated Examining Operations Handbook advises agencies to
consult with their own legal counsels to determine whether persons are
covered, and if so, what requirements apply. Moreover, the decision in
Dow v. General Services Administration, MSPB Docket No. SF-3443-02-0159-N9
(March 23, 2007), concluded that GSA was required to obtain prior approval
from OPM when it effectively passed over a preference-eligible applicant
(i.e., complainant) and selected a non-preference eligible applicant
instead.
7 We note that there has been no EEO investigation pertaining to whether
OPM had any involvement in complainant's non-selection.
8 We note, however, that if OPM dismisses the complaint for the reasons
set forth in 29 C.F.R. � 1614.107, complainant's appeal rights would be
to the EEOC. See 29 C.F.R. � 1614.302(c).
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0120073144
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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