0120090229
02-11-2009
Curtis Finch, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Curtis Finch,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090229
Agency No. 200H-0630-2008102941
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 25, 2008, 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.
Upon review, the Commission finds that complainant's complaint should
not be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
In his complaint, complainant alleged that he was subjected to
a discriminatory hostile work environment on the bases of race
(African-American) and sex (male) when he observed a hang-man's noose on
his supervisor's coat rack, and when he discovered nude women's pictures
on his supervisor's office wall.
The record reflects that complainant discovered the noose and pictures
on January 25, 2008, and called the agency police, who removed the
items. The pictures were stapled to the wall. Further information in
the record indicates that the supervisor told the EEO counselor that
he allowed those items to remain in the area for 4-5 years, using the
excuse that they belonged to a previous supervisor.
The agency stated that the alleged discriminatory event occurred on
January 25, 2008, but complainant did not initiate contact with an EEO
Counselor until May 8, 2008, which is beyond the forty-five (45) day
limitation period and dismissed the matter for untimely EEO counselor
contact.
Based on the unique facts of this case, the Commission determines that
it is appropriate to reverse the agency's dismissal and remand the
complaint for further processing. 29 C.F.R. � 1614.604(c) provides
that the time limitations provided for in the EEO complaint processing
regulations are subject to waiver, estoppel and equitable tolling.
Under this authority, we find that this is an appropriate case to excuse
complainant's failure to contact the appropriate EEO counselor within the
regulatory 45-day period. In reaching this decision, we have considered
that the complaint at issue concerns an allegation of a noose, an overt
racist symbol, in a supervisor's work space, as well as nude pictures
stapled to the wall. We also note that the supervisor in question seemed
to admit, at least to the EEO counselor, that these items were, in fact,
in his work area. Moreover, it appears that this individual is still
serving in a supervisory capacity at the agency. Under these facts,
the Commission finds it appropriate to require the agency to continue
processing of the complaint, despite complainant's delay in seeking EEO
counseling.1
Accordingly, the agency's dismissal is reversed and the complaint in
remanded to the agency for further processing in accordance with the
following Order.
ORDER (E0408)
The agency is ordered to process the remanded claims 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 (K1208)
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.
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 (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 (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
February 11, 2009
__________________
Date
1 We also note that complainant asserts that he contacted an EEO
Specialist in another office on February 7, 2008 and met with that person
on February 11, 2008. Complainant asserts he was not told he had to file
with the Lyons, NJ office. Complainant states he also contacted "ORM"
in March 2008 and left contact information, but no one contacted him.
Thus, it is clear that complainant was at least attempting to file an
EEO complaint during the relevant time period.
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0120090229
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090229