01a60704
05-05-2006
Roger N. Britts, Jr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Roger N. Britts, Jr. v. Department of Veterans Affairs
01A60704
May 5, 2006
.
Roger N. Britts, Jr.,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60704
Agency No. 20005162005100777
DECISION
Complainant initiated an appeal from a final decision, dated September
28, 2005, concerning 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant was an applicant for employment at
the agency's Bay Pines Veterans Administration Medical Center in Bay
Pines, Florida. Complainant sought EEO counseling and subsequently filed
a formal complaint on January 24, 2005, alleging that he was discriminated
against on the bases of race (White), sex (male), and age (57) when:
By letter dated November 15, 2004, complainant learned that he was not
selected for the position of Employee Relations Specialist, GS-201-11
(Target GS-12), under Vacancy Announcement Number VZ197053-SMB.
At the conclusion of the investigation, complainant received a copy of the
report of investigation on July 29, 2005. On appeal, complainant claims
that the report was unaccompanied by any notice or letter that informed
him of his right to request a hearing before an EEOC Administrative Judge
or alternatively, to receive a final decision by the agency. Complainant
claims that he sent a letter of inquiry regarding his hearing rights, to
the EEO investigator from whom he received the report of investigation,
but never received a response.<1> On September 26, 2005, complainant
sent another letter (which was received on September 29, 2005, after the
issuance of the final agency decision at issue herein) inquiring about
his right to a hearing to the agency's Office of Resolution Management.
On appeal, the agency argues that complainant was informed of his
right to request a hearing within 30 days of his receipt of the report
of investigation in the initial information he received when he was
informed that his complaint was accepted for investigation by letter dated
March 17, 2005. In addition, the agency asserts that on July 25, 2005,
complainant was sent the notice of his right to request a hearing along
with a copy of the report of investigation, which complainant received
on July 29, 2005. When the agency did not receive any response from
complainant regarding his desire to request a hearing, the agency issued
its final decision, finding no discrimination on September 28, 2005.
In its final decision, the agency found that complainant's application,
along with the certificate of eligibility and all of the application
packages for applicants found to be qualified and received under the
external vacancy announcement, were returned to the Delegated Examining
Unit (DEU) by the selecting official. The record reveals that no
selection was made from that certificate and the agency re-advertised
the position as a merit promotion opportunity to internal candidates.
The agency found that complainant did not apply as an internal candidate,
and a selection was made from among the internal candidates.
We find that the record shows that complainant received a certified
mail delivery from the agency on July 29, 2005. The signed certified
mail receipt is attached to a copy of a letter noting that a copy of
the report of investigation is being provided and advising complainant
of his right to request a hearing within 30-calendar days of receipt.
We find that the record supports a determination that complainant was
properly advised of his right to request a hearing. Therefore, we find
that no hearing request was timely made.
We find that neither party denies that complainant applied and that
his application was accepted under the DEU announcement. Similarly,
we find that neither party argues that any selection was made from the
certificate forwarded by the DEU. Accordingly, we find that the agency
correctly found that complainant did not show that more likely than
not that discrimination motivated the agency's decision not to select
complainant for the position. In fact, no one was selected from the
announcement under which complainant applied. Furthermore, there is
no indication that the decision to cancel the announcement under which
complainant applied was motivated by discrimination.
We therefore AFFIRM the agency's final decision, finding no
discrimination.
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
May 5, 2006
__________________
Date
1This letter that he claimed to have sent during the last week in August
2005, is not in the record.