01a02713
08-09-2000
Fairly Vanover, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Fairly Vanover v. Department of the Army
01A02713
August 9, 2000
.
Fairly Vanover,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02713
Agency No. BPAQFO0001A0010
DECISION
The complainant timely filed an appeal with this Commission from a final
agency action, dated February 2, 2000, which the agency issued pursuant
to 29 C.F.R. �1614.107.<1> The Commission accepts the complainant's
appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM in part, and to REVERSE in
part, the final agency decision.
First, the Commission finds that the agency improperly defined the claims
raised by the complainant's October 25, 1999 complaint. Based on the EEO
Counselor's Report and the attachments to the complainant's complaint,
the Commission finds that the complainant alleged that based on his sex
(male), national origin (association with a Puerto Rican woman, his wife),
age (56) and in retaliation for his opposition to practices he believed
were discriminatory, the agency:
(1) subjected him to a hostile work environment from June 1994 and
continuing;
(2) failed to select him for two GS-14 vacancies for which he applied
in 1995 and 1998; and
(3) violated his rights under the Privacy Act.
The Commission finds that the complaint, including its attachments,
contained sufficient factual claims to state a timely raised hostile work
environment claim based on sex, national origin, age, and retaliation.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). The agency contends that the complainant did not make
sufficient factual claims to indicate that the supervisor acted as he did
because of the complainant's sex ,or his association with or marriage to
a person of a different national origin. However, the complaint need
only provide a factual statement of the employment practice or policy
being challenged and identify the allegedly unlawful basis or bases for
his claim (race, color, religion , sex, national origin, age, disability,
retaliation). Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 5-7 �Practice Tip� (November 9, 1999).
In the instant case the complainant identified sex, national origin,
age and retaliation as the bases for the alleged unlawful employment
practices. Accordingly, the Commission REVERSES the agency's dismissal
of the complainant's hostile work environment claim.
The Commission further finds that the agency erred when it separated the
complainant's travel voucher and April 1999 presentation remarks from
the complainant's hostile work environment claim. Such fragmentation of
a claim in impermissible. EEO MD-110, 5-5 through 5-7. Accordingly,
the Commission REVERSES the agency's dismissal of these harassment
allegations.
The agency dismissed the complainant's non-selection for promotion claim
for untimely EEO Counselor contact. On appeal, the complaint submits an
affidavit wherein he avers that he did not have knowledge of the 45-day
limitations period for EEO Counselor contact. The agency contends
that the complainant had knowledge of the 45-day time limitation but
has provided the Commission with only argument, not evidence, that the
complainant had either actual or constructive knowledge of the 45-day
limitations period for EEO Counselor contact. Therefore, the Commission
finds that the preponderance of the record evidence indicates that the
complainant did not have knowledge of the time limitation. Accordingly,
the Commission REVERSES the agency's dismissal of the complainant's
non-selection claim.
Finally, the Commission agrees with the agency that claims of Privacy Act
violations do not state a claim under 29 C.F.R. Part 1614. Therefore,
the Commission AFFIRMS the agency's dismissal of the Privacy Act claim.
However, the Commission REVERSES the agency's dismissal of the factual
claims that the supervisor intruded upon the complainant's privacy in
that these claims should be considered as part of the complainant's
hostile work environment claim.
Similarly, the claims of offensive comments that the supervisor allegedly
made to the complainant's wife do not state an actionable claim under
29 C.F.R. Part 1614 because the complainant's wife is neither an agency
employee or applicant for agency employment. See 29 C.F.R. � 1614.103(c).
However, the alleged remarks should be considered to be part of the
complainant's hostile work environment claim to the extent that they
occurred in the workplace. If in fact the supervisor singled out the
complainant's wife for the allegedly offensive treatment, that would
lend credence to the complainant's claim that he was being subjected
to a hostile work environment based on his association with a woman of
Puerto Rican national origin. Accordingly, the Commission AFFIRMS any
attempt to state a claim on behalf of the complainant's wife. However,
the Commission REVERSES the agency's dismissal of these factual claims
to the extent that they are part of the complainant's hostile work
environment claim.
CONCLUSION
For the above stated reasons, the Commission AFFIRMS the agency's denial
of the complainant's Privacy Act claim; REVERSES the agency's definition
of complaint claims; REVERSES the agency's dismissal of the complainant's
hostile work environment/harassment and non-selection claims; and REMANDS
the complaint for further processing in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (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 (T0400)
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
August 9, 2000
__________________
Date
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER:
01A02713
AGENCY NUMBER:
BPAQFO0001A0010
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Sandra G. Bryan
August 2, 2000
(SUPERVISOR:
Joel G. Cavicchia
(DIVISION DIRECTOR):
Melissa Miller
1.) (COMPLAINANT(S)
Fairly Vanover
2.) (AGENCY)
Department of the Army
3.) (DECISION)
Reversed and remanded
4.) (STATUTE(S)
Title VII, ADEA
5.) (BASIS(ES)
GM, NH, OA, OR
6.) (ISSUE(S)
H1, P3, 01
7.) (TYPIST/DATE/DISK)
SB0/ August 2, 2000
SPELL CHECK:
YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
X 3M - OFO REVERSED AND REMANDED
X 4J - OFO MODIFIED FAD
? 3L - OFO VACATED/REMANDED ALL OF
AGENCY'S MERITS DECISION
X 4Q - COMPLIANCE REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
? 3R - RETURN TO AG FOR CONSOLIDATION
? 3S - RETURN TO AJ FOR CONSOLIDATION
? 7N - CIVIL ACTION FILED
REVISED AS OF 2/3/00
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.