0520120432
11-14-2012
Janice Blackwell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Janice Blackwell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120432
Appeal No. 0120110921
Agency No. 2004-0590-2010103944
DENIAL
The Agency timely requested reconsideration of the decision in Janice Blackwell v. Department of Veterans Affairs, EEOC Appeal No. 0120110921 (April 26, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision 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(b).
The previous decision affirmed that part of the Agency's decision which dismissed two claims of discriminatory non-selection based on reprisal which were untimely raised with an EEO Counselor, but reversed the dismissal of Complainant's claim of discriminatory non-selection based on reprisal which it found was timely raised. Remanded for investigation was claim 3, that Complainant was not selected for the position of Legal Assistant, GS-0986-07, vacancy announcement number 093-10vs in reprisal for previous EEO actiivty. The previous decision found that Complainant's July 9, 2010 EEO Counselor contact was timely because even though she had received an e-mail on May 21, 2010, which contained information about the selectee for the position, she did not read the contents of the e-mail and the attachment (a recruitment report) until the second week of June 2010. The decision found that the Agency had not met its burden of showing that Complainant was untimely, and found that Complainant contacted an EEO Counselor within 45 days of reading the report and learning of her non-selection, which was when a reasonable suspicion of discrimination was raised.
In its request for reconsideration, the Agency argued that Complainant had received notification of her non-selection for the position via e-mail dated May 21, 2010. It claimed that the previous decision was clearly erroneous, and would have a substantial impact on the policies, practices and operations of the Agency. The Agency claimed that it had met its burden of showing that Complainant was aware of the 45-day time limit to contact an EEO Counselor, through its production of training class records, and that there was no question that Complainant had received the e-mail in question on May 21, 2010. It argued that Complainant was "advised" of her non-selection through the May 21, 2010 e-mail, and that it is irrelevant that she did not actually read the e-mail until the second week of June 2010.
Complainant filed a statement in opposition to the Agency's request for reconsideration in which she argued that her contact should be deemed timely. She noted that the e-mail through which she was "advised" of her non-selection was a routine transmission of a monthly recruitment report, which ran 30 pages, and which she received as part of her capacity as a local Union official. There was no indication in the e-mail that notice of her non-selection was included. In fact, she says that she has never been officially notified of her non-selection, and that the Agency routinely ignores its own regulation that requires it to send notification to applicants when a selection has been made and whether or not they were the successful applicant. By Complainant's account, the Agency's failure to send official notification creates uncertainty for applicants in knowing what date would start the 45-day period in which to contact an EEO Counselor.
We find that the Agency's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. The Agency did not meet its burden to show that Complainant was untimely. It did not show that she actually read the May 21, 2010 e-mail immediately upon receipt, or that her reasonable suspicion of discrimination was aroused before the second week of June 2010. We find that the e-mail itself is not clearly labeled as notification of Complainant's non-selection (the subject line says "Recruitment Report (5/21/10)), and that one-line in a 30-page recruitment report indicating the name of selectee hardly constitutes "advising" Complainant that she was not the official selectee for the position.
Therefore, 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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120110921 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 below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (claim 3) 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.
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 (K0610)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 (Z0610)
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
November 14, 2012
Date
2
0520120432
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120432