01986286
10-08-1999
Michael Buyinza, Appellant, v. Togo D. West, Jr., Secretary, Department of the Veterans Affairs, Agency.
Michael Buyinza, )
Appellant, )
)
v. ) Appeal No. 01986286
)
Togo D. West, Jr., )
Secretary, )
Department of the Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Appellant filed the instant appeal from the agency's decision dated May
18, 1998 dismissing a portion of appellant's complaint on the grounds
that appellant did not raise a portion of the complaint with an EEO
Counselor and on the grounds that a portion of the complaint failed to
state a claim.
The agency accepted the following allegations for investigation:
Whether complainant was discriminated against and subjected to a hostile
work environment on account of his race/color and/or reprisal for prior
EEO activity with respect to the following employment matters: on July 2,
1997, when his supervisor made untrue, unfair, and misleading statements
about complainant's work and for over eight months when his supervisor
had been eavesdropping, collecting, and making negative handwritten
comments on his e-mail which he then placed in complainant's record;
on July 1, 1997, when his supervisor unilaterally changed his 2-month
research elective into a "continuation of the OP rotation"; on August 13,
1997, when he was harassed by his supervisor who issued him a memorandum
concerning "Outpatient Rotation Deficiencies" which, in part, also
required him to review all his records twice; and, on or about August
1997 when his supervisor withheld his earned Outpatient credit.
The agency dismissed the following allegations on the grounds that
appellant did not raise these allegations with an EEO Counselor and
these allegations are not like or related to a matter discussed with an
EEO Counselor:
Appellant was defamed on January 3, 1997 by a Nurse Coordinator.
Appellant was used as a pawn by Person A in conflicts in policies between
the VAMC and the RTP.
Appellant and other residents were not fairly compensated for their
services.
Appellant and other residents were not provided with keys to their
assigned offices and were not provided with clean offices.
Appellant and other residents were required to work on holidays without
due compensation.
Black individuals are generally excluded from the residency program.
The agency also stated that the portion of allegations 1 - 6 which
concern claims,
about how all medical residents are mistreated and which concern
[appellant's] contention that Blacks are excluded from the residency
program are also dismissed for failure to state a claim as the former
allegations obviously do not involve discrimination based on any of
the proscribed discriminatory bases and [appellant was] not among those
aggrieved by the general allegation that Blacks were excluded from the
residency program.
Failure to Raise Matter with an EEO Counselor
The Commission finds that the dismissal of allegations 1, 2, and 4 was
improper pursuant to 29 C.F.R. �1614.107(b) because these allegations
are like or related to the allegation of harassment which was accepted
by the agency for processing. The Commission finds that the agency
properly dismissed allegations 3 and 5 pursuant to �1614.107(b).
Because of our disposition of allegation 6, as discussed herein, there
is no need to decide whether allegation 6 was properly dismissed pursuant
to �1614.107(b).
Failure to State a Claim
The Commission finds that the agency properly dismissed allegation 6 and
appellant's claim that all medical residents were mistreated for failure
to state a claim pursuant to 29 C.F.R. �1614.107(a). In allegation
6 appellant has not claimed that he was excluded from the residency
program; therefore, we find that appellant is not personally aggrieved
in allegation 6. Appellant's claim about all medical residents being
mistreated does not involve discrimination covered under �1614.103.
The agency's decision dismissing allegations 3, 5, and 6 and appellant's
claim that all medical residents were mistreated is AFFIRMED. The
agency's decision dismissing allegations 1, 2 and 4 is REVERSED and we
REMAND allegations 1, 2 and 4 to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations