Bryan K. Cahn, Sr., Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 9, 2000
01a05119 (E.E.O.C. Nov. 9, 2000)

01a05119

11-09-2000

Bryan K. Cahn, Sr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Bryan K. Cahn, Sr. v. Department of Veterans Affairs

01A05119

November 9, 2000

.

Bryan K. Cahn, Sr.,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05119

Agency No. 200P2247

DECISION

Bryan K. Cahn, Sr. (complainant) filed a timely appeal with this

Commission from a final agency decision (FAD) dated June 20, 2000

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.<1> In his complaint, complainant

alleged that he was subjected to reprisal due to his prior protected

activity when he was harassed. Complainant described several incidents

in support of his claim of harassment, including:

on February 23, 2000, he was removed as Chair of the African American

Committee (AAC) by the EEO Manager;

on December 30, 1999, during an informal mediation meeting, the EEO

Manager said that a new Chair of AAC was needed because complainant did

not have the skills or the abilities;

on December 29, 1999, he had an altercation with the EEO Manager;

on June 17, 1999, he was told by the EEO Manager and the Medical Center

Director that they could not afford the posters he requested. He believes

the EEO Manager brought this issue to the Director's attention in order

to harass him;

on May 27, 1999, he and members of the AAC met with the EEO Manager to

discuss details of a celebration and the EEO Manager made it a personal

issue;

on March 12, 1999, he had an altercation with the EEO Manager and

discussed documents he was supposed to have received as an EEO Counselor,

but did not;

on March 10, 1999, after he sent an e-mail to the EEO Manager, he was

told that the EEO Manager would recommend someone else to go to the

Blacks in Government Conference; and

on March 6, 1998, he had an altercation with the EEO Manager and was

removed from his duties as a collateral duty EEO Counselor, as a member

of AAC and as a member of the Native American Committee (NAC).

The agency framed the complaint as raising one claim of harassment, Claim

A, and eight incidents. The agency dismissed Claim A, incident 1 (Claim

A1) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,

noting that complainant's position as Chair of the AAC was a collateral

duty assignment that did not affect his employment. The agency also

noted that complainant alleged that he was removed from this position

in reprisal for reporting unethical activity and that such activity

was not protected by Title VII. The agency then dismissed Claim A,

incidents 2-8 (Claim A 2-8) pursuant to 29 C.F.R. � 1614.107(a)(1) and

(a)(2). The agency found that complainant did not suffer a personal loss

or harm with respect to a term, condition, or privilege of employment.

The agency held, in the alternative, that complainant failed to raise

these incidents with an EEO Counselor within the requisite regulatory

time period.

On appeal, complainant contends that he clearly alleged that the continual

harassment to which he was subjected stemmed from his activities when he

was a collateral duty EEO Counselor and testified about the EEO Manager's

inappropriate behavior during the investigation of an EEO complaint.

Complainant noted that this protected activity led to harassment at the

hands of the EEO Manager, included the above noted events, as well as

the EEO Manager's attempts to prevent him from receiving a Counselor

position with the Office of Resolution Management during November 1997

and November 1998.

The agency asks that its FAD be AFFIRMED.

FINDINGS AND ANALYSIS

As an initial matter, we note that the agency improperly characterized

complainant's claim. It is clear from the Counselor's report and the

formal complaint, that complainant alleged that he was subjected to

ongoing harassment arising from his testimony during an EEO investigation

regarding the allegedly improper practices of the EEO Manager (RMO).

While the agency labeled this claim as one of harassment, it then

separately considered each incident, dismissing Claim A1 for failure to

state a claim, and then turning to the remaining incidents and dismissing

them for failure to state a claim and, in the alternative, untimely

EEO Counselor contact. The agency did this despite the fact that the

EEO Counselor identified complainant's claim as one of �continuing

violation.�

The Commission has held that the normal time limit for contacting an EEO

Counselor may be suspended when a complainant alleges facts sufficient to

constitute a continuing violation, i.e., the existence of a discriminatory

system or policy, or a series of related discriminatory or retaliatory

acts occurring both before and during the filing period. See Guba

v. Department of the Army, EEOC Request No. 05970635 (February 11,

1999); Rohrer v. Department of Health and Human Services, EEOC Request

No. 05940965 (April 12, 1995). If one or more of the interrelated

acts falls within the time period for contacting an EEO Counselor,

the complaint is deemed timely with regard to all acts. See Godby

v. Department of the Treasury, EEOC Request No. 05960220 (May 7, 1998).

In the case at hand, the agency failed to address the continuing

violation theory, despite the fact that complainant clearly alleged that

he was subjected to a series of related retaliatory acts. According to

Commission precedent, in such circumstances �an agency is obligated to

initiate an inquiry into whether any allegations untimely raised fall

within the ambit of the continuing violation theory." Guy v. Department

of Energy, EEOC Request No. 05930703 (December 16, 1993) (quoting Williams

v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)).

As the Commission further held in Williams, where an agency's final

decision fails to address the issue of continuing violation, the complaint

"must be remanded for consideration of this question and issuance of

a new final agency decision making a specific determination under the

continuing violation theory." Accordingly, the complaint in the case

at hand must be remanded to allow the agency to determine whether any

of the issues raised comprise part of a continuing violation.

Furthermore, the agency is advised that Claim A1, standing alone,

states a claim. Therefore, even assuming that the agency determines

that the complaint does not establish a continuing violation, and

again dismisses Claim A 2-8 for untimely EEO Counselor contact, it

may not dismiss Claim A1. Complainant alleged that he was removed

as Chair of the AAC by the EEO Manager due, at least in part, to his

prior protected activity. Although the agency found that complainant

alleged that his removal stemmed from reporting unethical activity,

the EEO Counselor's report makes clear that complainant alleged that

all of the incidents described therein were motivated by testimony he

gave as an EEO Counselor during the investigation of an EEO complaint.

Moreover, contrary to the agency's decision, complainant's claim that he

was removed from a collateral duty assignment due to his prior protected

activity does state a claim. See Berry v. Department of Housing

and Urban Development, EEOC Appeal No. 01962794 (October 16, 1998)

(Commission decision reaching the merits of a complainant's claim that

she was removed from a collateral duty assignment due to discrimination).

For the foregoing reasons, the FAD is hereby VACATED, and complainant's

complaint is REMANDED for further processing consistent with the

Commission's decision and applicable regulations.

ORDER

The agency is ORDERED to take the following actions:

1. The agency shall conduct a supplemental investigation into whether

complainant has established a continuing violation. Within thirty (30)

calendar days of the date this decision becomes final, the agency shall

complete the supplemental investigation and decide whether to process

or dismiss Claim A (2-8). See 29 C.F.R. � 1614.106 et seq.

2. If the agency determines that complainant has established a continuing

violation, the agency shall process the remanded claim, including Claim A,

incidents 1-8, in accordance with 29 C.F.R. � 1614.108. 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.

3. If, however, the agency decides that complainant has not established

a continuing violation and that Claim A 2-8 therefore should be dismissed

for failure to contact an EEO Counselor within the requisite time period,

it shall notify complainant in writing of its determination, the rationale

for that determination and that those claims will not be investigated,

and shall place a copy of the notice in the investigation file. See 29

C.F.R. � 1614.107(b). A copy of the notice of processing must be

submitted to the Compliance Officer, as referenced below.

4. If the agency determines that Claim A 2-8 should be dismissed,

it shall continue to process Claim A1 in accordance with 29 C.F.R. �

1614.108, as we have determined that it states a claim standing alone. 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.

5. The investigations shall be conducted by an office other than the

Office of Resolution Management West Los Angeles office, as the RMO

is the EEO Program Manager of the Loma Linda VAMC and was previously

employed at the West Los Angeles Office as an EEO Assistant/Specialist.

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 (K0900)

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)(Supp. V 1993). 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 (M0900)

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

(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

November 9, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.