Edward Norton, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 29, 2000
01996841 (E.E.O.C. Nov. 29, 2000)

01996841

11-29-2000

Edward Norton, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Edward Norton v. Department of Veterans Affairs

01996841

November 29, 2000

.

Edward Norton,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01996841

Agency No. 99-1107

DECISION

On August 28, 1999, complainant filed a timely appeal with this Commission

from an agency decision pertaining to 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> The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office regarding claims of discriminatory

harassment and working conditions. According to complainant, a VA

police detective has been harassing him ever since he intervened in

an incident where three Hispanic Food Service employees were accused of

stealing from the kitchen. The Hispanic employees were allegedly blamed

for actions, complainant believes, were taken by VA police officers.

Specifically, complainant cited a February 8, 1999 meeting regarding an

�administrative non-criminal investigation� of complainant's leave usage.

The detective indicated that he had a videotape of complainant and another

coworker off station during their tour of duty. Following the meeting,

on February 22, 1999, complainant received an email from the detective

stating that he wanted to follow up on complainant's arrests in the 1980s.

Informal efforts to resolve complainant's concerns were unsuccessful.

Subsequently, on April 16, 1999, complainant filed a formal complaint

based on race, national origin and reprisal. Utilizing VA Form 4939,

complainant checked the issue boxes for harassment, sexual harassment

and working conditions.

On August 2, 1999, the agency issued a decision dismissing the harassment

and working conditions claims for failure to state a claim. The agency

noted that isolated verbal comments without any concrete action do not

rise to the level of creating a hostile working environment. The sexual

harassment claim was dismissed on the grounds that complainant did not

raise the matter with the EEO counselor.

Harassment and Working Conditions

The regulation set forth at 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,

.106(a). 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 21, 1994).

Here, the agency dismissed complainant's harassment and working conditions

claims pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the

agency determined that the claims were comprised of a February 8, 1999

meeting, where the videotape and arrest record issues were discussed,

and a February 22, 1999 email. On appeal, however, complainant asserts

that he explained to the counselor that �during the past year [he]

has been written up for frivolous things and have been followed by the

[VA detective] with video cameras....� Moreover, the Counselor's

Report notes that the VA detective allegedly waits for complainant

in the hallways and stalks him. In his formal complaint, complainant

asserts that he is under surveillance by the detective from home to work.

Therefore, based on a review of the record, it appears that complainant's

claim of harassment consists of more than an �isolated verbal comment�.

We find that complainant has alleged facts which when considered together

and assumed to be true, indicate that he may have been subjected to

discriminatory harassment that was sufficiently severe or pervasive to

alter the conditions of his employment. See Cobb v. Department of the

Treasury, EEOC Request No. 05970077 (March 13, 1997).

Sexual Harassment

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later claim or complaint is "like or related"

to the original complaint if the later claim or complaint adds to

or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Scher v. United States Postal Service, EEOC Request No. 05940702

(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request

No. 05891068 (March 8, 1990).

In the instant case, complainant raised the issue of sexual harassment

in his formal complaint. The matter was not raised with the EEO

Counselor, nor is it reflected anywhere in the record. Therefore,

we find that it was properly dismissed by the agency pursuant to 29

C.F.R. �1614.107(a)(2), as it is not like or related to the matters

counseled.

Accordingly, the agency's decision to dismiss the sexual harassment claim

is AFFIRMED. The agency's decision dismissing the harassment and working

conditions claims was improper and is hereby REVERSED. The harassment

and working conditions claims are REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0900)

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 (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

November 29, 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 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.