0120091646
08-19-2009
Pedro C. Jenkins, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pedro C. Jenkins,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091646
Agency No. 2004-0372-2008102211
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 27, 2009 final decision concerning
an 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.
On March 17, 2008, complainant, a former Vocational Rehabilitation &
Employment Supervisor, initiated EEO Counselor contact.1 Informal
efforts to resolve his concerns were unsuccessful.
On April 29, 2008, complainant filed the instant formal complaint.
Therein, complainant alleged that he was subjected to harassment and a
hostile work environment on the basis of sex (male) when:
(1) on or about August 16, 2006, he was threatened by his supervisor
with disciplinary action;
(2) in October 2006, his supervisor took away his parking space and gave
it to a female supervisor;
(3) during October 2007, he requested a reassignment, but it was not
granted;
(4) on December 7, 2007, he was forced to resign his Supervisory
Vocational Rehabilitation Counselor position;
(5) during December 2007, he believed that his formal supervisor had
something to do with him not being selected for positions at any agencies
to which he applied;
(6) on February 27, 2008, he learned that he was not selected for a
position at the Census Bureau because his formal supervisor provided
negative information. 2
On July 2, 2008, the agency issued a partial dismissal. The agency
accepted for investigation claims (1) - (2) and (5) - (6). However,
the agency dismissed claims (3) and (4) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
During the investigation of claims (1) - (2) and (5) - (6), complainant
requested that the instant formal complaint be amended to include a basis
of reprisal for prior EEO activity. The record further reflects that the
agency granted complainant's request by including reprisal as a basis.
At the conclusion of the investigation concerning claims (1) - (2) and (5)
- (6), complainant was provided with a copy of the report of investigation
and notice of his right to request a hearing before an EEOC Administrative
Judge (AJ). In accordance with complainant's request, the agency issued a
final decision on January 27, 2009, pursuant to 29 C.F.R. � 1614.110(b).3
In its January 27, 2009 final decision, the agency found that complainant
did not establish a prima facie case of sex and reprisal discrimination
concerning claims (1) - (2) and (5) - (6). The agency nevertheless
found that management articulated legitimate, nondiscriminatory reasons
for its actions which complainant failed to show were a pretext.
On appeal, complainant contends that the agency erred in finding
no discrimination because it did not properly analyze his reprisal
claims. Complainant further argues that his harassment and hostile
work environment claims (claims (3) - (4)) were timely filed with an
EEO Counselor.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
In its July 2, 2008 partial dismissal, the agency dismissed claims (3)
- (4) on the grounds of untimely EEO Counselor contact. Upon review,
however, we find that the agency improperly dismissed claims (3) -
(4) on these grounds. The record reflects that complainant initiated
EEO Counselor contact on March 17, 2008. 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 hostile work environment claim occurred within the 45-day
time period preceding to complainant's March 17, 2008 EEO Counselor
contact. Specifically, complainant alleged in the instant formal
complaint that he was subjected to a hostile work environment from
approximately August 16, 2006 to February 27, 2008. Moreover, as noted
above, complainant stated on appeal, that the agency did not include
alleged incidents of harassment that had been expressly set forth in
the formal complaint. Based on the foregoing, we find that the agency
improperly dismissed claims (3) - (4) on the grounds of untimely EEO
Counselor contact.
We note that the agency did investigate claims (1) - (2) and (5) - (6)
and issued a final decision on the merits. We find that claims (1) -
(2) and (5) - (6) and the hostile work environment claim (claims (3) -
(4)) were raised in the same formal complaint and are factually tied
to each other as they involved incidents which occurred during the same
time frame and involved the same management officials. Therefore, these
claims should not be processed separately. EEOC's Management Directive
(MD)-110 cautions against fragmenting EEO complaints. See MD-110,
Ch. 5, III. Therefore, we are vacating the agency's final decision
on the merits of claims (1) - (2) and (5) - (6), and are ordering the
agency to issue a new decision on the merits of the entire complaint
once it supplements its earlier investigation with information about
the hostile work environment claim (claims (3) - (4)).
Accordingly, we VACATE the agency's final decision finding no
discrimination concerning claims (1) - (2) and (5) - (6). Moreover,
we REVERSE the partial dismissal of claims (3) - (4) on the grounds of
untimely EEO Counselor contact, defined herein as a harassment claim, and
we REMAND this matter to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to process the remanded hostile work environment
claim (claims (3) - (4)) in accordance with 29 C.F.R. � 1614.108, as
a supplemental investigation to the one already conducted on the other
claims (claims (1) - (2) and (5) - (6)) in this complaint. 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 (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 (K1208)
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 (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
August 19, 2009
__________________
Date
1 The record reflects that complainant resigned from agency employment
on December 7, 2007.
2 The Commission has rearranged complainant's claims in the most recent
date chronological order and re-numbered the claims as claims (1) -
(6), for ease of reference.
3 The record reflects that the agency inadvertently sent complainant's
file and report of investigation to the Hearings Unit of the Washington
D.C. Field Office for a hearing. The record reflects that shortly
thereafter, the agency discovered that complainant had actually requested
a final decision, not a hearing before an EEOC Administrative Judge;
and that complainant's file was returned to the agency for an issuance
of a final decision.
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0120091646
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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