David J. Henry, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 25, 2000
01a00534 (E.E.O.C. Oct. 25, 2000)

01a00534

10-25-2000

David J. Henry, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


David J. Henry v. Department of Veterans Affairs

01A00534

October 25, 2000

.

David J. Henry,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A00534

Agency No. 990340

DECISION

David J. Henry (complainant) filed a timely appeal with this Commission

from a final agency decision (FAD) dated October 15, 1999 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 discrimination on the bases of race (African-American),

sex (male), and reprisal (prior EEO activity) when:

(1) in February 1998, his duty assignment was changed due to allegations

of patient abuse;

on February 16, 1998, the Director, Cardiac Stress Laboratory stated

that complainant was not in his area during his duty hours;

he was harassed, ongoing since 1982;

he did not receive accurate performance appraisals between 1982 and

1997;

in March 1998, he was treated unfairly with regard to time and attendance

issues;

he did not receive appropriate training in March 1998;

his working conditions were discriminatory between 1982 and 1998; and

he was non-selected for numerous positions, he was defamed, and

selections were made based on favoritism between 1997 and February 3,

1998.

The agency dismissed the complaint pursuant to EEOC Regulation 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(2)), for failure to initiate contact with

an EEO Counselor within the 45 day time requirement. The agency noted

that complainant contacted an EEO Counselor on October 2, 1998, more

than 45 days after the events described above. The FAD also noted that

complainant failed to provide important information to the Counselor,

including the names of positions for which he applied, the dates of

the ongoing harassment, and the dates of the incidents that created

discriminatory work conditions.

After a careful review of the entire record, including complainant's

statement on appeal and the agency's response, we find that the agency

improperly dismissed this complaint. From the lengthy explanation

provided by complainant with his formal complaint form, it is clear that

he is alleging that he was subjected to ongoing harassment, the most

recent incident being a proposed suspension received on September 28,

1998, just a few days prior to his initial contact with the EEO Counselor.

Although not mentioned in the FAD, complainant discussed this proposed

suspension with the EEO Counselor and cited it in the pages attached to

his formal complaint. Thus, complainant's harassment claim involves at

least one timely raised incident.<2> Moreover, the pages attached to

complainant's formal complaint also include further details in regard

to the other incidents of harassment complainant mentioned to the EEO

Counselor.

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 discriminatory/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.

The Commission also finds that the agency did not properly define the

complaint at issue. Complainant noted that some of the incidents he

described were intended as background evidence only. Based on the

information contained in the Counselor's report and the attachments

to complainant's formal complaint, however, the Commission is unable

to distinguish live claims from background information intended to

support these claims. In a similar situation, the Commission remanded

the complaint back to the agency so that complainant could meet again

with an EEO Counselor in order to reach an agreement on the issues of

the complaint. See Smith v. United States Postal Service, EEOC Request

No. 05921017 (April 15, 1993).

Finally, we note that EEO Counselors are responsible for clearly defining

a complainant's claims. See EEO-MD-110, at 2-8. In the case at hand,

the Counselor failed to distinguish between background evidence and

live claims and did not correctly identify complainant's claim as one

of harassment. We remind the agency of the importance of identifying

and defining a complainant's legal claim during complaint processing.

See id. at 5-5.

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 hereby ORDERED to take the following remedial actions:

The agency shall refer complainant to an EEO Counselor for the purpose

of clarifying the issues and bases in his November 5, 1998 complaint.

At the conclusion of the counseling, complainant shall not be required

to refile his November 5, 1998 complaint.

Complainant shall advise the Counselor of those claims intended to be

�live� claims from those claims intended to be presented as background

evidence in support of �live� claims. In addition, complainant shall

identify with specificity the bases of discrimination, the dates of

occurrence for each �live� claim of discrimination, and the specific

identities of those individuals whom complainant alleges discriminated

against him with regard to each �live� claim of discrimination.

Thereafter, the Counselor shall issue a supplemental report of

counseling.

Upon completion of this report, the agency shall either accept

complainant's November 5, 1998 complaint for investigation or again

dismiss his complaint. If the agency accepts the complaint for

investigation, it shall issue a letter of acceptance to complainant,

with a copy to the Commission. If the agency again seeks to dismiss

the complaint, the agency shall issue a final decision to complainant

with appeal rights to the Commission consistent with the Commission's

revised regulations. In this regard, the Commission reminds the parties

that there is no right of appeal to the Commission on partially dismissed

claims until final action is taken on the remainder of the complaint.

The final decision must specify the grounds for dismissal, as well as

the facts and documentary evidence relied upon, and may not dismisses

claims de facto by failing to identify them. The final decision must

also address the theory of continuing violation.

All ordered actions must be completed within ninety (90) calendar days

from the date this decision becomes final. In accordance with EEO-MD-110,

at 9-23, the agency shall give priority to this remanded case in order

to comply with the time frames in this Order. The Office of Federal

Operations will issue sanctions against agencies when it determines that

agencies are not making reasonable efforts to comply with a Commission

order to investigate a complaint.

The agency must provide complainant with a copy of the supplemental

EEO Counselor's report, in addition to the letter of acceptance and/or

final agency decision, and return the completed record to the Compliance

Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

October 25, 2000

__________________

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at www.eeoc.gov.

2 Although Commission regulations require dismissal of complaints that

allege that a proposal to take a personnel action is discriminatory, our

Management Directive specifically provides an exception to the dismissal

of such allegations when a complainant alleges that a proposed action

or preliminary step was part of a pattern of harassing the individual

for a prohibited reason. See Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO-MD-110), as revised November 9,

1999, at 5-22; see also Butler v. Department of Labor, EEOC Request

No. 05891016 (December 1, 1989).