0120110518
12-14-2012
Gaylon Stagner, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gaylon Stagner,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110518
Agency No. 2003-0674-2009104314
DECISION
Complainant timely filed an appeal from the Agency's final decision concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Program Specialist, GS-12, at the Agency's Olin Teague Veterans Memorial Hospital in Temple, Texas. On November 30, 2009, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and discrimination on the bases of sex (male), age (born 1949), and reprisal for prior protected EEO activity when:
1. On March 9, 2009, Complainant learned that the Chief of Medicine/Associate Chief of Staff for Medical Services (the Chief) was very unhappy with an event involving one of Complainant's sleep technicians;
2. On March 11, 2009, the Chief berated him in front of another doctor and called him a liar;
3. From March 13, 2009, through March 19, 2009, the Chief solicited negative comments from the Complainant's subordinate employees during an investigation of Complainant;
4. On March 23, 2009, Complainant received a management-directed detail from the Sleep Lab Clinic to another clinic within the same service;
5. On March 23, 2009, the Chief removed Complainant's supervisory responsibilities;
6. On May 19, 2009, Complainant received a proposed removal;
7. On July 31, 2009, the Facility Director offered Complainant a three-day paper (paid) suspension and reassignment out of the Sleep Lab at the same grade (GS-12) in lieu of removal (which Complainant declined); and
8. On November 25, 2009, the Facility Director demoted Complainant from a GS-12, Step 6, Supervisory Program Specialist (Sleep Lab) to a GS-8, Step 10, Medical Instrument Technician (Polysomnography).
The Agency processed the matter as a mixed-case complaint pursuant to the procedures in 29 C.F.R. � 1614.302. Following its investigation into the claims, the Agency issued a final decision on September 13, 2010, concluding that Complainant failed to prove that he was subjected to discrimination with regard to his demotion and harassment claims. With respect to the demotion claim, the Agency provided Complainant with appeal rights to the MSPB, not the EEOC. However, as to the harassment claim, Complainant was given appeal rights to the Commission. Complainant filed the instant appeal, asking that we reverse the Agency's final decision.
CONTENTIONS ON APPEAL
Complainant has not filed a brief or statement on appeal. The Agency asserts that at the conclusion of the investigation, it notified Complainant of the right to request either a hearing before an EEOC Administrative Judge or an immediate final agency decision. The Agency asserts that Complainant requested a final agency decision.
ANALYSIS AND FINDINGS
As an initial matter, we note that the Agency provided Complainant with appeal rights regarding the demotion claim to the MSPB, not the EEOC. Therefore, we will not address the Agency's final decision regarding that claim. The Commission will focus this decision on the Agency's processing of Complainant's harassment claim.
As to the harassment claim, we find that the record does not support the Agency's assertion that Complainant had the opportunity to request a hearing before an EEOC Administrative Judge. Rather, the record contains a Notice of Advisement of Rights in a Mixed-Case Complaint, dated May 21, 2010, addressed to Complainant and his attorney. Therein, the Agency noted that Complainant's case was mixed and that it was providing Complainant with the report of investigation. The Agency further noted that it would be issuing Complainant a final decision, which would advise Complainant of the right to appeal to the MSPB. As such, the record shows that Complainant received the Agency's report of investigation, informing him that his complaint as a whole was mixed and that, once the Agency issued its final decision, he could appeal the matter to the MSPB for a hearing.
We note that the record is devoid of any indication that Complainant was provided with an opportunity to request a hearing before an EEOC Administrative Judge. Therefore, we find that the Agency issued its final decision on the merits of the harassment claim, providing Complainant with appeal rights to the EEOC, without first providing him with an opportunity to request a hearing before an EEOC Administrative Judge. Upon review, we find that although the Agency correctly identified the harassment claim as a non-mixed claim with appeal rights to EEOC, it failed to provide Complainant with the appropriate hearing rights on the claim pursuant to 29 C.F.R. � 1614.108(f). See Polansky v. Dep't of Health and Human Serv., EEOC Appeal No. 0120112328 (Oct. 3, 2011); Ford v. Dep't of Veteran's Affairs, EEOC Appeal No. 0120102816 (Apr. 25, 2012).
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination as to the harassment claim only is VACATED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER herein.
ORDER
The Agency, within 30 days of the date this decision becomes final, shall provide Complainant with a copy of the investigative file and a notice of his right to a hearing pursuant to 29 C.F.R. � 1614.108(f) with regard to Complainant's claim of harassment. Following the issuance of this notice, the Agency shall process Complainant's complaint in accordance with applicable EEOC regulations.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
December 14, 2012
Date
2
0120110518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110518