0120093110
11-24-2009
Michael H. Weaver, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Michael H. Weaver,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093110
Agency No. 200J-0553-2009103060
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 29, 2009, dismissing his formal 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.
At the time of the events at issue, complainant was employed by the
agency as a Diagnostic Radiologist Technologist at the John D. Dingell
Veterans Affairs Medical Center in Detroit, Michigan. On May 7, 2009,
complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.
On June 13, 2009, complainant filed the instant formal complaint. Therein,
complainant alleged that he was subjected to ongoing harassment and a
hostile work environment on the bases of race (Mexican) and national
origin (Hispanic) by a Health Education Specialist (mixed race - Asian
and Caucasian), who was his instructor in an ongoing leadership class.1
As examples of the harassment, complainant alleged the following:
1. On January 30, 2008 and February 28, 2008, he was allegedly subjected
to inappropriate comments by the instructor as follows: he was told that
he was not liked by his co-workers, that he would never be promoted and
that he needed to leave the facility, he was told he was "too military",
the instructor referred to African-Americans as "niggers," the instructor
referred to another employee as "retarded" in complainant's presence,
the instructor discussed his own EEO activity with him, the instructor
told him that once he filed an EEO complaint he would be labeled as a
troublemaker, the instructor complainant that positions are filled by
pre-selection, and the instructor displayed aggressive body language
towards him with his fists clinched, yells and aggressive stares.
2. On March 28, 2008, he was allegedly subjected to inappropriate
comments by the instructor as follows: that he would never be promoted
and that he needed to leave the facility, he was told he was "too
military", the reason why he can't get promoted is that he does not
listen, the instructor told him that the medical center does not like
to promote employees to management positions, complainant was told that
once he filed an EEO complaint, he would be labeled as a troublemaker,
the instructor told him that positions are filled by pre-selection,
the instructor displayed aggressive body language towards him with his
fists clinched, yells and aggressive stares.
3. On April 25, 2008, May 30, 2008, June 6, 2008, July 25, 2008, August
8, 2008, September 26, 2008, October 24, 2008, November 14, 2008 and
December 8, 2008, he was allegedly subjected to inappropriate comments
by the instructor as follows: that he would never be promoted and that
he needed to leave the facility, he was told he was "too military",
the reason why he can't get promoted is because he was a threat with his
Master's degree, that he does not listen, the instructor told complainant
that vacancies are filled by pre-selection, complainant was told once
he filed an EEO complaint he would be labeled as a troublemaker, the
instructor displayed aggressive body language towards him with his fists
clinched, yells and aggressive stares.
4. On December 13, 2008, he was allegedly subjected to inappropriate
comments by the instructor as follows: complainant was told that he was
getting a reputation for burning too many bridges because he was applying
for too many positions, he was told he would never be promoted and that
he needed to leave the facility, that he provided too much information
on his applications, the instructor displayed aggressive body language
towards him with his fists clenched, yells and aggressive stares.
5. On January 29, 2009 and February 12, 2009, the instructor allegedly
subjected complainant to inappropriate comments when he told a joke
while in a training class that consisted of 4 females and 2 males.
The instructor asked complainant if he heard the women being upset
modeling in the lingerie show.
In its June 29, 2009 final decision, the agency dismissed the complaint
on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). The agency determined that complainant's initial EEO
contact occurred on May 7, 2009, which it found to be beyond the 45-day
limitation period from the latest allegation proffered in support his
his claim.
On appeal, complainant contends his EEO Counselor contact was timely and
that the Intake Specialist "failed to forward my first, second, and third
EEO amendments about [the instructor] to the EEO counselor." In support
of his assertions, complainant submits copies of his emails that he
sent to the Intake Counselor concerning harassment and non-selection
allegations.
In response, the agency argues that complainant's EEO contact was
untimely. The agency argues while complainant acknowledges he told
the EEO Counselor that he failed to initiate EEO contact within 45
days because he feared reprisal, he alleged he reported the alleged
incidents of harassment within the requisite 45 day limitation period.
The agency further argues that complainant did not say when and to whom
he reported the alleged incidents.
After a thorough review of the record, it is not clear why the
agency processed the complainant's claim of ongoing harassment by
the instructor as a new claim when it appears that it had already
accepted this same claim in a previously filed complaint (Agency Case
No. 200J-0553-2008104780, filed on November 5, 2008). The record
contains a letter from the agency's Office of Resolution Management,
dated February 17, 2009, entitled "Notice of Amendment," indicating
that this identical claim was accepted for investigation in Agency Case
No. 200J-0553-2008104780. However, if that is not the case, the February
17, 2009 letter clearly proves that complainant raised this issue to
the agency's EEO program well within the 45-day limitation period,
and his claim should not have been dismissed as untimely raised.
Accordingly, the claim of harassment/hostile work environment involving
the instructor is remanded to the agency for processing in accordance
with the following Order.
ORDER
The agency is ordered to process the remanded claim (harassment/hostile
work environment involving the instructor) in accordance with 29 C.F.R. �
1614.108 et seq. The claim shall be consolidated with the claims raised
in Agency Case No. 200J-0553-2008104780 and a supplemental investigation
shall be conducted in that case if necessary to address this claim.
The agency shall acknowledge to the complainant that it has received
the remanded claim 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 ninety (90) 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 (K0408)
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 (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
November 24, 2009
__________________
Date
1 According to a document in the record prepared by complainant, the
"Shaping My Future" classes were held once per month between January
2008 and February 2009.
??
??
??
??
2
0120093110
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093110
7
0120093110