05A20693_r
08-06-2002
Osborne B. Samuel, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Osborne B. Samuel v. Department of the Treasury
05A20693
.August 6, 2002
Osborne B. Samuel,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A20693
Appeal No. 01A02418
Agency No. 00-3033
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of the Treasury (agency) timely initiated a request to the
Equal Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Osborne B. Samuel v. Department of the Treasury, EEOC
Appeal No. 01A02418 (February 27, 2002). EEOC Regulations provide that
the Commission may, in its discretion, 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).
In the previous decision, the Commission reversed the agency's dismissal
of complainant's complaint, regarding his non-selection for numerous
agency positions. First, the Commission reversed the agency's finding
that complainant's 1999 non-selection claim (which concerns a nation-wide
recruitment announcement for Customs Inspectors) failed to state a claim
because of the purported dual processing of applications under this
announcement with another agency (the Office of Personnel Management,
or �OPM�). The Commission determined that the agency failed to provide
adequate evidence to support its decision regarding the extent of OPM's
involvement.
Next, the Commission reversed the agency's dismissal of complainant's
pre-1999 claims on the grounds of untimely EEO Counselor contact,
finding that complainant established a continuing violation regarding
this these claims.
In its request for reconsideration, the agency argues that the Commission
should uphold its dismissal of the captioned complaint, contending that
complainant did not, in fact, apply for some of these positions, providing
affidavit evidence to this effect. The agency additionally argues that
complainant is across-the-board not qualified for any of the positions he
identifies. For both of these reasons, the agency avers that complainant
cannot establish a prima facie case of discrimination, and requests that
the Commission reconsider its previous decision. The agency also avers
that complainant's claims are based on false representations, and that
processing these claims would result in a waste of government resources.
While the Commission may, on its own motion, reconsider any previous
decision, we decline to do so in this case because the newly submitted
evidence, particularly the affidavit evidence tending to show that
complainant may not have submitted an application for all of the
positions he identifies, as well as the agency's explanatory statement
concerning this same matter, could have been submitted by the agency
at the time of the appeal. See Lanier v. U.S. Postal Service, EEOC
Request No. 05990689 (November 21, 2001). Moreover, by addressing
whether complainant established a prima facie case of discrimination
concerning his claims, we find that the agency addressed the merits of
these claims without the benefit of an investigation. In particular,
whether complainant is �qualified� for any of the positions at issue
is irrelevant to the procedural issue of whether he states a cognizable
claim for which relief can be granted. Here, we find that complainant
identified a cognizable harm (non-selection) on grounds (race and age)
protected by this Commission, such that his complaint �states a claim.�
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Finally, after reviewing the record, we are
simply not persuaded that complainant's claims are based on �false
representations� as claimed by the agency.
After a review of the agency's request for reconsideration, 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. 01A02418 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
The agency is ordered to process the remanded claims, concerning
all of the claimed non-selections from June 1995 to August 1999, 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (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
August 6, 2002
__________________
Date