0120065319
02-08-2007
Edwin Lugo, Jr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Edwin Lugo, Jr.,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200653191
Agency No. 200H-0526-2006102540
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 29, 2006, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On May 30, 2006, complainant initiated EEO Counselor contact. Informal
efforts to resolve his concerns were unsuccessful.
On July 10, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to harassment and a
hostile work environment, between October 2004 and January 12, 2006, on
the bases of race (Hispanic), sex (male) and age (D.O.B. 06/08/80) when:
(1) the Chief remarked on his dress attire by saying, "What are you
trying to do, act white?";
(2) the Chief alleged that complainant was trying to take his job due
to his dress attire;
(3) the Chief humiliated him several times in front of the other MCCF
staff;
(4) the Chief called him a "sissy";
(5) in September 2005, the Chief saw him putting on chapstick and remarked
"What are you putting on, lipstick?";
(6) on December 19, 2005, a supervisor of MCCF told him not to make the
Chief angry because he would make his life miserable;
(7) on December 19, 2005, during a meeting, the Chief stated "When you
go looking for another job, you have to get a reference from me and
you can get a good reference or a bad reference," a statement taken by
complainant as an indirect threat;
(8) on December 19, 2005, the Supervisor verbally harassed him by stating
"You are good for nothing";
(9) on December 19, 2005, the Chief blamed him for an incident that
occurred with a co-worker without learned the facts of the matter;
(10) on December 20, 2005, the EEO Manager informed him that he was
good friends with the Chief; and
(11) on January 12, 2006, complainant resigned from his position. 2
In its August 29, 2006 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of
untimely EEO Counselor contact. The agency determined that complainant's
initial EEO Counselor occurred on May 30, 2006, which it found to be
beyond the 45-day limitation period. The agency further determined
that complainant was aware of the 45-day limitation period because he
attended training on the prevention of sexual harassment which included
information on the EEO process. Moreover, the agency noted that when
asked by the EEO Counselor as to the reason for the delay, complainant
responded "due to the mental and emotional stress that I was put under
by my [named Chief and Supervisor], I was forced to resign. After my
resignation, for the next approximately 4-5 months, I was in a state
of shock due to the stress that was put on me and the fact that I was
unaware of my rights as an employee."
As an initial matter, the Commission notes that the agency also dismissed
age as a basis of the complaint. The record establishes that, at the time
of the alleged discriminatory acts identified in the formal complaint,
complainant was only 26 years old. Therefore, complainant did not come
under the minimum age requirement identified by the ADEA. Consequently,
we find that the agency properly dismissed age as a basis.
On the other hand, we find that complainant's formal complaint was
improperly dismissed on the grounds of untimely EEO Counselor contact.
We acknowledge that the agency has submitted information showing that
complainant attended a "Sexual Harassment in the Workplace" training
on November 17, 2005. However, the agency has provided no evidence
to indicate the content of the training, or whether it specifically
contained information about the procedures of the EEO complaint process,
including the forty-five day time limit.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of Defense, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Therefore, as the agency has failed to show that complainant was aware
of the forty-five day time limitation for EEO Counselor contact, we
find it incorrectly dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(2).
Accordingly, the agency's dismissal of age and sexual orientation as
bases is AFFIRMED. The agency's final decision dismissing complainant's
complaint on the basis of race is REVERSED. The complaint, as identified
herein, is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ordered to process the remanded claims (claims (1) - (11)
on the basis of race and sex) in accordance with 29 C.F.R. � 1614.302.3
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 investigate the complaint and
issue a final decision within 120 calendar days of the date this decision
becomes final. The final decision shall give complainant appropriate
appeal rights to the Merit Systems Protection Board (not EEOC).
A copy of the agency's letter of acknowledgment to complainant and a
copy of the final decision must be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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. 200e-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 (M0701)
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
February 8, 2007
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
2 For ease of reference, the Commission has re-numbered complainant's
claims as claims (1) - (11).
3 As the complaint is alleging a pattern of harassment culminating in a
constructive discharge (forced resignation) it appears to be a "mixed case
complaint" and should be processed under those procedures. The Commission
notes that the agency, by acknowledgement letter to complainant dated
July 18, 2006, already recognized the "mixed" nature of this complaint.
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0120065319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120065319
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