Mckinley P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionFeb 22, 20180520180075 (E.E.O.C. Feb. 22, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mckinley P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Request No. 0520180075 Appeal No. 0120170968 Agency No. 16-68084-03691 DECISION ON REQUEST FOR RECONSIDERATION The Agency requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120170968 (September 14, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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). The record indicates that on November 22, 2016, Complainant filed his complaint alleging discrimination based on disability, age, and in reprisal for prior EEO activity when: (a) On August 8, 2016, [Complainant] became aware that [his] application for the Physician (Occupational Medicine) GP-0602-15 position (announcement #NE60602-15- 1692286PC357655H) was rated “not qualified” by the Agency’s Employment Information Center. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0520180075 2 (b) On August 31, 2016, [Complainant] became aware that his application for the Physician (Occupational Medicine), GP-0602-15 (Announcement #NE60602-15- 1756924NA425447H) was not referred for consideration by the hiring manager at the Naval Health Clinic Charleston. (c) On September 17, 2016, [Complainant] was not able to apply under Schedule A authority to the Physician (Occupational Medicine) GP-0602-14 position (EA0602-14- 1803111NA498333) because the vacancy announcement was open to Interagency Career Transition Assistance Program (ICTAP) applicants only by the hiring manager. On December 19, 2016, the Agency issued its final decision dismissing claim (a) due to untimely EEO Counselor contact and dismissing claims (b) and (c) for failure to state a claim, pursuant to 29 C.F.R. §§ 1614.107(a)(2) and (1), respectively. Complainant appealed. The Commission previously found that the Agency’s final decision improperly dismissed the complaint. Thus, we reversed the Agency’s final decision and remanded the matter back to the Agency for further processing. In its request, the Agency argued that its representative did not receive an acknowledgment letter and thus did not respond to Complainant’s appeal. Our records clearly indicate that our office issued an acknowledgment letter to the Agency’s Complaints and Adjudication office on February 1, 2017, notifying the Agency that Complainant filed the instant appeal on January 22, 2017. Our records also indicate that in response, the Agency submitted the complaint file. We note that even if the Agency’s representative did file his brief opposing Complainant’s appeal, his arguments, indicated in the request, would not have changed the Commission’s prior decision. 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. 0120170968 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth herein. ORDER (E1016) 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 was issued. 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 was issued, 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. 0520180075 3 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 0520180075 4 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 22, 2018 Date Copy with citationCopy as parenthetical citation