01a51398
05-25-2005
Larry Thompson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Larry Thompson v. Department of Veterans Affairs
01A51398
May 25, 2005
.
Larry Thompson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51398
Agency No. 200N-0691-2004102665
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 20, 2004, dismissing 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.
Complainant alleged that he was subjected to discrimination on the bases
of sex (male) and reprisal for prior EEO activity when, inter alia, on
May 12, 2004, management charged him with patient abuse based on a letter
from an unidentified accuser and reassigned him to a different Team, and
on various other occasions, refused to consider him for job openings.<0>
The agency dismissed the claim on the grounds that complainant failed
to state a claim, 29 C.F.R. � 1614.107(a)(1), and failed to respond to
the agency's request for clarification, 29 C.F.R. � 1614.107(a)(7).
The agency argues that on June 19, 2004, the Office of Resolution
Management (ORM) received complainant's formal complaint and in the
section where the complaint asks for specific information regarding
the alleged discrimination, complainant wrote �see attached letter.�
According to the agency, no letter was attached, and so the agency states
that it lacked information regarding the specific claim(s) and date(s)
necessary to conduct a procedural review determination. Final Agency
Decision (FAD) at 1. Seeking clarification, on August 20, 2004, the
agency sent complainant a request for additional information with a list
of ten questions. See Letter from ORM to Complainant dated 8/20/04.
Complainant responded on August 31, 2004 with a five page letter answering
most of the agency's questions. See Letter from Complainant to ORM
dated 8/31/04. Nevertheless, the agency concluded that the responses
were insufficient to process complainant's complaint. Specifically,
the agency states that complainant's response �lacked specific dates and
incidents of harassment, which [allegedly] occurred from 2001 to May 2004.
In addition, [complainant] did not provide the specific letter authored by
the �unidentified person.'� FAD at 2. Without this necessary information,
the agency asserted, complainant failed to show that he suffered a harm
with respect to a term, condition or privilege of employment, and thus,
failed to state an actionable claim.
On appeal, complainant insists that he has provided sufficient information
regarding his claim in conversations and meetings with EEO personnel,
and that he has specifically answered the questions raised in the agency's
August 20th letter. The agency requests that we affirm its FAD.
Legal Analysis
The Commission shall first discuss the dismissal for failure to cooperate.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency shall
dismiss a complaint where the agency has provided the complainant with
a written request to provide relevant information or otherwise proceed
with the complaint, and the complainant failed to respond to the request
within fifteen days of its receipt or the response does not address the
agency's request. In enforcing this regulation, the Commission has held
that where the complainant has engaged in delay and contumacious conduct
and the record is insufficient to permit adjudication, the Commission
will affirm the agency's dismissal of a complaint on the grounds of
failure to prosecute or cooperate. See Dipple v. Dep't of Defense,
EEOC Appeal No. 01A41939 (Nov. 17, 2004). As a general rule, an agency
should not dismiss a complaint when it has sufficient information on
which to base an adjudication.
We determine that the EEO Counselor's Report as well as complainant's
response to the agency's information request contain sufficient
information for processing the complaint. In particular, we find
that the record sets forth the circumstances of the alleged incident
of discrimination, to include pertinent background information;
the approximate date of the incidents; the names of the responsible
agency officials; the bases of the alleged discrimination, and the
corrective action sought. We also find that the EEO Counselor's report
contains comprehensive and detailed information regarding complainant's
discrimination claim.
We find no evidence that complainant attempted to delay the processing
of his complaint. Instead, we find that complainant timely responded
with additional clarifying information. We also note that complainant
appeared to have been confused by the clarification request and therefore
was perplexed as to what additional information the agency required
to investigate his complaint,<0> especially given his view that ample
information was already provided during the informal complaint stage.
Therefore, finding that complainant did not engage in contumacious
conduct, and that the record contains adequate information to undertake
investigation of the complaint, we find that the agency improperly
dismissed the instant complaint based on failure to cooperate.
Next we turn to the agency's dismissal for failure to state a claim.
Under EEOC regulations, 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.
See 29 C.F.R. �� 1614.103, 106(a) (2004). The Commission's federal
sector case precedent has long found an �aggrieved employee�to be one
who �has suffered direct and personal deprivation at the hands of the
employer.� Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9,
2003) (citing Hobson v. Dep't of the Navy, EEOC Request No. 05891133
(Mar. 2, 1990)); see also Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994) (defining 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.)
We find that complainant has stated a valid claim. W assume that the
charge of patient abuse remains on his personnel record. He has also
been reassigned to work with a different patient group, and has been
denied consideration for job openings. These are all claims that in
fact affect a term, condition or privilege of complainant's employment.
Even if we assume that the agency's actions did not specifically
affect a term, condition or privilege of his employment, a claim of
harassment is actionable if it is sufficiently severe or pervasive to
alter the conditions of the complainant's employment. See, e.g., Cobb
v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
Whether the harassment is sufficiently severe to trigger a violation of
EEOC statutes must be determined by looking at all of the circumstances,
including the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interferes with an employee's
work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). Complainant here has been charged
three times with patient abuse, but he has never been found guilty.
Complainant suggested to the Counselor that he has suffered negative
treatment, including reassignment and various non-selections, because of
these abuse allegations. We find that these are serious charges, and
if they are found to have been based on his sex and in retaliation for
prior EEO activity, it would be a sufficiently severe and pervasive form
of harassment that had effects on complainants' employment. Therefore,
we find that complainant has also stated an actionable harassment claim.
In conclusion, the agency's final decision is REVERSED, and the Commission
REMANDS this complaint for further processing consistent with 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 (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. 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 (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 (R0900)
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 (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
May 25, 2005
__________________
Date
0 1 The agency failed to include in the record
a copy of complainant's complaint. This omission is material because
a reason the agency dismissed complainant's claim is that he failed to
substantiate his complaint with necessary information concerning the
alleged harassment.
0 2 The clarification letter stated, �The [VA 4939] form indicated
�see attached letter� and included the dates of occurrence �2001 to
the present May 2004.' However, ORM did not receive an attachment with
the formal complaint VA Form 4939.� This language confused complainant
because in his response letter, he states: �Can you clarify what form
are you now asking for, you stated that I did not return it to you....
I do take exception to this, for I returned everything that was sent to
me.... Why have you not sent another to be completed by my, before now?
And if you have not done so, would you please do so now? I anxiously
await your response to my request....� Letter from complainant to ORM
dated 8/31/04. Apparently, complainant did not understand that the agency
wanted a copy of the letter complainant stated was attached to his formal
complaint, which purportedly describes in detail the claims he alleges.