0120101003
06-08-2010
Stanley Phillips, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Stanley Phillips,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120101003
Agency No. ARGORDON09OCT04859
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 9, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), disability (unspecified), and age (49 years at time of
incident) when:
1. Complainant was not selected for the position of Clinical Pharmacist,
GS-12.
The agency characterized the claim differently, finding that complainant
was alleging that "on or around July 2009 the [agency] posted a newly
created Clinical Pharmacist, GS-12 position, Ann. # Md-DHL-09-1490 on
the USA Jobs website. [Furthermore] the selected employee was made
aware of the position by internal pharmacy staff sources before it was
announced." FAD. The agency found that complainant said that he found
out about the position before it closed on September 16, 2009, and did
not apply for the position. The agency dismissed the claim for failure
to state a claim on the grounds that complainant was not aggrieved.
On appeal, complainant disputes the agency's contention that he knew
of the date the position closed, and disputes that he ever saw a copy
of the announcement. See Complainant's Appellate Brief. In response,
the agency argues that in his Formal Complaint, complainant admits "that
he knew of the job vacancy and announcement prior to the announcement
closing and yet chose not to apply." Agency's Appellate Brief, p. 2.
Because complainant knew of the announcement and did not apply for the
position, the agency argues, complainant fails to state a claim. See id.,
p. 3.
Following a review of the record we find that complainant states a
claim and that the FAD should be reversed. A review of the Formal
Complaint shows that complainant says that a position had been posted
on the USA Jobs website and that "by happenstance I learned of this
position/opportunity within days of the job announcement closure," Formal
Complaint, but contrary to the FAD and Agency Brief, complainant does
not state that he saw the announcement himself prior to the announcement
closing, or that he chose not to apply. While complainant mentions
in the Formal Complaint that he learned of the announcement within
days of its closure, the language in the Complaint is ambiguous as to
whether he was aware of the closing date at the time he learned of the
existence of the position, or whether he learned of the closure date
on a subsequent occasion. In addition, complainant's language in his
Complaint is similarly ambiguous regarding whether or not he ever saw
the announcement. On appeal, complainant states "I never once had a copy
of the announcement," Appellate Brief, and in his Formal Complaint he
merely states that the position was posted on USA Jobs and that he became
aware of the position, see id., but he does not state that he ever saw
the announcement. We therefore find that the agency's conclusion that
complainant saw the announcement prior to its closure and chose not to
apply for the position to be unsupported by the evidence.
On appeal, complainant alleges that he learned of the announcement
and sought to contact an EEO counselor. See id. Complainant further
alleges that the counselor was unable to see him until September 10, 2009
and that when he met with the counselor on that date, the announcement
was not posted. See id. Complainant next alleges that another coworker
(S) was awarded the position before the September 16, 2009 date that the
agency contends is the date the position closed, and that when complainant
met with a management official (MO) on September 11, 2009 he expressed
his concerns to MO that S had been given preferential treatment. See id.
Complainant contends that he made MO aware of his interest in the position
on that date, which again is before the date that the agency contends
is the date the position closed, and that MO made inquiries to find out
whether the application process could be extended so that complainant
might apply but that he was told it was too late. See id.
Given such contentions by complainant, we find that complainant states
a valid claim of nonselection and we REVERSE the FAD and REMAND the
matter the matter to the agency for processing in accordance with the
Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim 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 becomes final. 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 becomes final, 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.
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 (S0408)
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 (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 8, 2010
__________________
Date
2
0120101003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101003