0120091279
06-19-2009
John F. Speight, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John F. Speight,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091279
Agency No. 200I-0508-2007101141
Hearing No. 410-2008-00121X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 11, 2008 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the relevant time, complainant was employed as a Program Analyst,
GS-13, at the agency's VA Medical Center in Decatur, Georgia.1
On January 26, 2007, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
On March 7, 2007, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and a
hostile work environment on the basis of age (66) when2:
1. from 1997 to 2005, he was never counseled about his performance in
constructive ways and kept "ignorant of official VA;"
2. since July 14, 1998, his position description has not been changed
despite his reassignments in 2001 and 2005;
3. in March 2001, he was told by [a named management official (M1)]
to support [a named employee] in her efforts to gain proficiency in
compliance matters;
4. between 2001 and 2004, JACHO position competencies and performance
ratings for 2001-2006 were signed and placed in his OPF without reflecting
his work assignments;
5. between 2002 and 2003, he was not acknowledged for six months work
on developing a final product for the Medical Center Mentoring Program;
6. in mid-2003, M1 told him to cease his EEO activities because they
were keeping him from his regular job;
7. in March 2003 through February 2005, M1 "brown beat" him regarding
the production of minutes and spreadsheets while serving as the reporter
for the medical center's Data Validation Committee;
8. in 2005, he was asked by his supervisor (S1) if he wanted a buyout;
9. on January 10, 2007, in a meeting to complain about his reassignment,
duties, and working conditions, S1 told him that the assignment would
last as long as the medical center had budgetary pressures and that
the space was the best he could do and if complainant could find better
space to let him know;
10. in 1998, he was not selected for the position of Health Systems
Specialist, GS-671-14, Network Director's Office, Vacancy Announcement
#MP-98-188-CM;
11. in October 1999, he was not selected to the position as the Executive
Assistant to the Director;
12. on or about April 18, 2002, he was not selected for the position as
Health Systems Specialist Compliance Officer, GS-13, Vacancy Announcement
#MPA-0083-DR;
13. in June 2003, he was not selected for the position as Health Systems
Specialist, GS-14;
14. in 2003, he was assigned GS-6 clerical equivalent duties;
15. from March 6, 2005 to present, while in the Health Administrative
Service, he was given primarily ad hoc duties;
16. on an unspecified date, he was denied the opportunity to act as
Service Chief;
17. on August 31, 1998, he was relieved of his duties as Chief Business
Office (SBO) and reassigned to the Director's Office as Management
Analyst;
18. on April 9, 2000, he was reassigned to the Corporate Business Office
to work for M1 who replaced him in February 1999;
19. from April to August 2002, he was reassigned to serve as the Acting
EEO Manager;
20. in September 2003, he was reassigned to work in Human Resources
Service to distribute SF-52s workload to staff;
21. on March 6, 2005, he was reassigned to the Patient Business Office
(PBO) in the Office of the CFO;
22. from 2000 to 2005, M1 rated him as "Fully Satisfactory;"
23. from June 2006 to January 2007, he was detailed to work off station
as a "Loaned Executive" to the Metropolitan Atlanta Combined Campaign;
24. on January 8, 2007, after returning two weeks of annual leave, his
computer, printer and telephone were returned to Information Technology
(IT); and
25. on January 8, 2007, he was informed by his supervisor that he
had office space elsewhere and moved him from office space of 290
sq. ft. shared with two others to space of about 400 sq. ft. shared with
5 others.
On June 6, 2007, the agency issued a partial dismissal. The agency
accepted allegations 23 - 25 for investigation. The agency dismissed
allegations 1 - 9 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim, finding that complainant was not aggrieved. The agency
determined that the management official's purported remarks failed to
rise to the level of an adverse action. Furthermore, the agency concluded
that allegations 1 - 9 did not rise to the level of harassment.
The agency dismissed allegations 10 - 22 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 contact
occurred on January 26, 2007, which it found to be beyond the 45-day
limitation period. The agency found that the alleged incidents of
discrimination should have given rise to a suspicion of discrimination
at the time they purportedly occurred, and that complainant failed to
timely contact an EEO Counselor. The agency stated that complainant has
not demonstrated that he was prevented from contacting an EEO Counselor;
and that he was aware of the time limits during the relevant time.
Following the investigation concerning allegations 23 - 25, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The AJ
issued a decision by summary judgment in favor of the agency. The agency
fully implemented the AJ's decision in its final order.
The AJ found that complainant did not establish a prima facie case
of age discrimination. The AJ further found that assuming, arguendo,
complainant established a prima facie case of age discrimination, the
agency articulated, legitimate reasons for its actions which complainant
failed to show were a pretext for discrimination.
Regarding allegation 23, the AJ noted that according to S1, she assigned
complainant to the Combined Federal Campaign (CFC) as a "Loaned Executive"
because someone was needed at the time and complainant was available.
Regarding allegation 24, the AJ noted while complainant was detailed,
the agency's office was renovated and complainant's old office space was
repurposed for use by S1 and his secretary. The AJ further noted that
complainant's computer equipment was returned to IT as a consequence of
the ongoing renovation. The AJ noted after complainant returned from
his CFC detail, he was reissued all of the necessary computer equipment
and a new phone.
Regarding allegation 25, the AJ noted that since complainant's old office
space was repurposed, both complainant and a named Program Specialist
were moved to a new office space which was shared by multiple people.
S1 stated that complainant was assigned to the travel office because
that was where space was available.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
On appeal, complainant, through his attorney, argues that the AJ erred in
both denying his Motion for Review of Partially Dismissed Issues and "also
in not issuing a proper Order specifying the grounds for her denial."
Complainant further argues that the AJ erred in issuing summary judgment
concerning allegations 23 - 25 because she "failed to consider all
the evidence Complainant proffered and made impermissible findings of
disputed facts." Moreover, complainant states "construed as a whole,
the complaint asserted in essence that from August 1998 through the
date of the filing of the complaint, Complainant has been subjected to a
hostile work environment that was intended to coerce him into retiring."
Allegations 10 - 22
In its June 6, 2007 partial dismissal, the agency dismissed allegations
10 - 22 on the grounds of untimely EEO Counselor contact.
We find that the agency improperly dismissed allegations 10 - 22 on
the grounds of untimely EEO Counselor contact. The record reflects
that complainant initiated EEO Counselor contact on January 26, 2007.
The Commission finds that "[b]ecause the incidents that make up a
hostile work environment claim collectively constitute one unlawful
employment practice, the entire claim is actionable, as long, as at least
one incident is part of the claim occurred within the filing period.
This includes incidents that occurred outside the filing period that the
[complainant] knew or should have known were actionable at the time of
their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues
at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger
Corp v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that at least one of the incidents comprising of
complainant's harassment and hostile work environment claim occurred
within the 45-day time period preceding to complainant's January 26,
2007 EEO Counselor contact. Specifically, complainant alleged that
in the instant complaint he was subjected to harassment and a hostile
work environment from approximately 1997 to the present. Based on the
foregoing, we find that the agency improperly dismissed allegations 10 -
22 on the grounds of untimely EEO Counselor contact.
Allegations 1 - 9
The agency improperly dismissed allegations 1 - 9 for failure to state
a claim. The Commission has previously held that an agency should not
ignore the "pattern aspect" of a complainant's claims and define the
issues in a piecemeal manner where an analogous theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). By claiming a pattern of harassment,
complainant has stated a cognizable claim under the EEOC regulations.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Allegations 23 - 25
We determine that because we are remanding allegations 1 - 22 to the
agency for further processing as discussed above, it is necessary to
vacate the AJ's finding of no discrimination regarding allegations
23 - 25, because these allegations were part of complainant's ongoing
harassment claim discussed above.
Accordingly, we REVERSE the agency's partial dismissal of allegations 1 -
22, defined herein as part of the ongoing harassment claim and VACATE
the AJ's finding of no discrimination concerning allegations 23 - 25,
and we REMAND all the complaint to the agency for further processing in
accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded harassment/hostile work
environment claim in accordance with 29 C.F.R. � 1614.108 et seq.,
by conducting a supplemental investigation into allegations 1 - 22,
and considering that evidence together with evidence already gathered
concerning the other allegations (allegations 23 - 25) in the complaint in
making any final adjudication on complainant's ongoing harassment claim.
The agency shall acknowledge to the complainant that it has received
the remanded complaint within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy of
the supplemented investigative file and also shall notify complainant
of the appropriate rights within one hundred fifty (15) 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 acknowledgement 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 (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 77960, Washington,
D.C. 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 (M1208)
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 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 (R0408)
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 (Z1008)
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
June 19, 2009
__________________
Date
1 The record reflects that complainant retired from agency employment
effective January 3, 2008.
2 For purposes of clarity, the Commission has numbered complainant's
allegations as allegations 1 - 25.
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0120091279
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091279
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