0120081823
08-28-2008
Alfred Baker, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Alfred Baker,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081823
Agency No. 200I-05082007104213
DECISION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated February 8, 2008, dismissing his
complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2).
During the relevant period, complainant was employed as a Program Support
Clerk at a Georgia medical center of the agency. On September 25, 2007,
complainant initiated contact with an EEO Counselor (S1) alleging that the
agency discriminated against him on the basis of disability (confidential)
when it subjected him to hostile work environment harassment forcing him
to apply for disability retirement. In a formal EEO complaint dated
November 16, 2007, complainant alleged that the agency discriminated
against him based on disability when, on June 7, 2007, it forced him to
resign from employment.1
In its February 8 final decision, the agency dismissed complainant's
complaint for untimely EEO Counselor contact. The agency stated that
complainant initiated EEO contact on October 23, 2006 and December
4, 2006 regarding management's request for medical information and
disciplinary actions, respectively. The agency provided Initial Contact
and Interview Sheets to support its contention. The agency indicated
that it informed complainant of his EEO rights but complainant chose not
to file an EEO complaint on either matter. Further, the agency concluded
that complainant had constructive knowledge of his EEO rights because,
since September 2002, notices were posted throughout the medical
center and complainant was given EEO training during various years.
The record contains e-mails from the agency EEO Manager (S2), in
which she states that, since Fall 2006; she spent a great deal of time
assisting complainant with his work-related concerns and illness-related
retirement and informed him of the EEO process and the need to contact
an EEO Counselor at a Bay Pines, Florida facility. She stated that
complainant called to ask about his December 2006 formal complaint and
she reminded him that he never filed formally on his 2006 issues.
Complainant filed the instant appeal. On appeal, complainant stated
that S2 deceived him into thinking that he filed a formal complaint in
August 2006. He stated that he constantly informed S2 of the various
actions taken against him. Complainant stated that, in 2006, a new
lead technician was hired and she began subjecting him to a hostile work
environment consisting of discipline, denial of sick leave requests and
a request for reassignment, and assignment changes. Complainant stated
that he could not initiate EEO contact in a timely manner because he was
ill and in a New York hospital, and could not make long distance calls
until his brother visited and gave him a long distance calling card.
After careful review of the record, we conclude that the circumstances
in total are rare and, in some instances, confusing. The record shows
that complainant initiated EEO contact regarding hostile work environment
harassment in a timely manner in 2006, complainant stated that he was
pursuing a formal complaint on these matters with S2, and an allegation
of constructive retirement could be related to complainant's claim of
harassment and serve as an amendment to his harassment claim because
the agency did not complete an investigation on the matter. Hence,
based on the record as a whole, we find that complainant has presented
persuasive arguments or evidence warranting an extension of the time limit
for initiating EEO contact regarding his constructive retirement claim.
We REVERSE the final agency decision dismissing complainant's complaint
and REMAND the matter to the agency for further processing in accordance
with this decision and the order below.
ORDER
The agency is ordered to process the remanded claim of "constructive
retirement based on hostile work environment harassment" 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 (K0408)
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (R0408)
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 (Z0408)
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 28, 2008
__________________
Date
1 We note that the record contains a personnel action placing complainant
on disability retirement effective June 21, 2007.
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0120081823
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081823