01996698
12-22-2000
Darren A. Horn, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Darren A. Horn v. Department of Veterans Affairs
01996698
12-22-00
.
Darren A. Horn,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996698
Agency No. 97-1631
Hearing No. 370-98-2246X
DECISION
On August 25, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) concerning his complaint that the
agency discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The appeal
is accepted by the Commission in accordance with 29 C.F.R. � 1614.405.
On March 3, 1997, complainant filed a complaint alleging that he was
subjected to harassment based on race (Black, African-American) and color
(black) when:
1). During the period of October 15, 1995 to November 1996, he was
assigned additional duties designed for a higher level employee (GS-7)
and management did not give him either a temporary promotion or monetary
compensation for performing those higher level duties. In addition,
management was unable to rate his duty performance for that period of time
because it failed to establish written performance standards for him.
2). On or about November 22, 1996, management harassed him (e.g., sent
him a list of job expectations that insulted him), causing him to take
sick leave from November 25 to January 1997.
The agency accepted the complaint, but did not complete the investigative
process. Afterward, in January 1998, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The record indicates that
complainant filed a Step 1 grievance, on October 23, 1996, concerning
his not receiving compensation for working in a higher level position,
having a vague position description, not receiving a performance appraisal
and having his grade level changed from GS-0303-4/5 to GS-0303-4. A
Step 2 grievance was filed on the same issues on December 6, 1996.
On December 24, 1996, a union official filed a charge with the Federal
Labor Relations Authority on complainant's behalf seeking compensation
for working in a higher level position.
The AJ found that complainant was covered by a collective bargaining
agreement that contains a negotiated grievance procedure and
non-discrimination provisions.<2> According to the AJ, �[i]t is
apparent from the record that [complainant] filed a grievance and was
involved in the resolution of that grievance several months before he
filed his written EEO complaint.� The AJ further found that, �[t]he
issues raised in the EEO complaint, despite their characterization as
�harassment' and �unfair treatment' matters, are substantively the
same as those raised in the grievance, including the assignment of
duties, compensation for higher-level duties, and his job performance
and expectations.� Consequently, the AJ remanded the complaint to
the agency with a recommendation that it be dismissed. On August 17,
1999, the agency issued a final decision dismissing the complaint.
This appeal followed.
Claim I
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination
to be raised in a negotiated grievance procedure, a person wishing
to file a complaint or grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614 or
the negotiated grievance procedure, but not both. This subsection also
provides that an election to proceed under part 1614 is indicated by the
"filing of a written complaint," while an election to proceed under a
negotiated grievance procedure is indicated by the "filing of a timely
written grievance." An employee who files a grievance with an agency
whose negotiated agreement permits the acceptance of grievances which
allege discrimination may not thereafter file a complaint on the same
matter under part 1614 irrespective of whether the agency has informed
the individual of the need to elect or whether the grievance has raised
an issue of discrimination.
On appeal, complainant argued that his EEO complaint actually concerned
matters that occurred on November 22, 1996. Complainant maintained that,
during a November 22, 1996 grievance settlement meeting, he became
aware that the agency's treatment of him was based on his race.<3>
According to complainant, �any mention of incidents or actions which
occurred prior to this date were mentioned only to support my reasoning
for filing the EEO complaint on November 22, 1996.� We, however, agree
with the AJ's determination that complainant, with respect to Claim I,
did not raise a new or distinct EEO claim because the underlying issues
were the same as those raised in his grievance. We therefore find that
complainant's filing of his written grievance constituted an election
of that forum with respect to Claim I. 29 C.F.R. � 1614.301(a).<4>
Accordingly, the agency's decision to dismiss Claim I is AFFIRMED.
See 29 C.F.R. � 1614.107(a)(4)).
Claim II
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. An
agency shall accept a complaint from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin, age
or disabling condition. 29 C.F.R. � 1614.103. The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 22, 1994).
Unlike Claim I, we do not find that Claim II arose out of the same
facts as those raised in the grievance. Accordingly, we find that
the dismissal of Claim II was improper. After the November 22,
1996 meeting, complainant's supervisor e-mailed complainant a list of
job-related expectations. For example, complainant was told that he
needed to perform his assigned tasks without complaint; he could not do
homework during his work hours; his breaks were only 15 minutes each and
that lunch was only 30 minutes; and that his tour of duty was 7:30 a.m.,
to 4:00 p.m. In addition to outlining certain specific responsibilities,
complainant was also told, among other things, that he should �mellow�
his manner and attitude to be more customer focused when dealing with
staff, volunteers, patients, or supervisors.
We find that complainant has set forth an actionable claim on the bases
of race and color. A review of the record reveals that complainant is
claiming that his supervisor harassed him by sending him a list of job
expectations that insulted him and caused him to take sick leave. We find
that this alleged conduct renders complainant aggrieved because these
matters, if true, would have affected terms, conditions, or privileges
of his employment.
Accordingly, we REVERSE the agency's dismissal, and REMAND Claim II to
the agency for further processing consistent with the ORDER below.
ORDER (E0900)
The agency is ordered to process Claim II in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it
has received Claim II 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 (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 (T0900)
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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
__12-22-00____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
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.
2The pertinent portions of the agreement are contained in the complaint
file.
3Complainant alleged that, during the meeting, threats of disciplinary
action and accusations were made that he interpreted as a personal attack
against his character and integrity.
4We also agree with the AJ's determination that if complainant, after
the November 22, 1996 meeting, believed that a discriminatory motive
was involved in the actions that he raised in his grievance, he could
have raised that matter in his pending grievance.