0120082004
06-19-2008
Raul A. Reichard, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Raul A. Reichard,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082004
Agency No. 200L-0502-2007104315
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated March 4, 2008, 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.
The FAD defined the complaint as alleging complainant was discriminated
against based on national origin (Puerto Rico) and reprisal for prior
protected EEO activity when the department head, a psychiatrist and his
supervisor:
1. on unspecified date(s), coerced staff to write false allegations,
2. fabricated charges to justify a detrimental proficiency report of
2006 through 2006,
3. on an unspecified date intended to utilize peer review results as
disciplinary tool to create harm,
4. on an unspecified date suspended complainant's clinical privileges
for 8 months pending his clinical aptitude investigation,
5. on an unspecified date reinstated complainant under probation for 3
months,
6. he is currently being rated within the rating period for 2006 and
2007,
and the following chain of events also occurred:
7. on January 19, 2007, complainant voluntarily requested to
change his duties from MSC to the acute inpatient ward due to repeated
and continued clinical harassment about clinical practices,
8. on February 13, 2007, he received an annual proficiency report
for August 27, 2005 to August 27, 2006, with an overall evaluation of
low satisfactory,
9. on February 21, 2007, his supervisor declined in a sarcastic
fashion to engage in a discussion with him,
10. on March 2, 2007, complainant contacted an EEO counselor
regarding EEO claim 200L-0502-2007101681,
11. on March 23, 2007, he was presented with a binder which included
rating periods August 27, 2005 through August 27, 2006; and August 27,
2006 through August 27, 2007 (Performance Management Report), reprimands
of which 99% were of a fabricated nature,
12. on March 29, 2007, he received a notice of disciplinary
suspension of clinical privileges, was relieved of clinical duties,
and was assigned to the library,
13. on August 24, 2007, he received a performance counseling,
14. on May 8, 2007, he was ordered to attend a psychological
evaluation,
15. on May 14, 2007, there was a settlement agreement releasing
EEO claim 200L-0502-2007101681,
16. on May 18, 2007, he contacted an EEO counselor regarding EEO
claim 200L-0502-2007102810,
17. on May 21, 2007, he requested a decision with the EEO Director
on a claim of breach,
18. on May 21, 2007, he obtained a signed agreement and certificate
from the union affirming a failed amended proficiency report for 2005
through 2006,
19. on May 31, 2007, he wrote the EEO office an addendum to the
appeal for breach of the EEO agreement---declined,
20. on June 4, 2007, the union notified him of the termination of
representation at the mediation,
21. on June 7, 2007, he sent a letter to management to advise
them of an impasse with the settlement agreement due to noncompliance
and the written nature of the agreement,
22. on July 25, 2007, a verbal agreement during mediation was
reached, which was followed by a letter of confirmation,
23. on July 25, 2007, he withdrew complaints 200L-0502-2007102810
and 200L-0502-2007101681,
24. on July 25, 2007, he received a unfavorable agency determination
on his breach of settlement agreement claim,
25. on October 1, 2007, he contacted an EEO counselor regarding
the instant complaint,
26. on October 19, 2007, he was issued a letter of expectation
with conditional reinstatement back to Mental Hygiene Clinic (MHC),
27. on October 19, 2007, he was informed that prescriptions he
wrote would be countersigned by his supervisor, and
28. on November 29, 2007, he notified an EEO counselor of continued
work harassment.1
Complainant is a staff psychiatrist or psychologist. He was issued a
Letter of Expectations dated October 19, 2007, which counseled him on his
duties in a way that suggested he had performance problems. While the
letter returned him to clinical duties, it advised his documentation
would be monitored and all medication orders required approval by the
service chief.
The FAD dismissed claims 1 through 26, and claim 28, on the grounds
that complainant did not raise these matters with the EEO counselor
in connection with his instant complaint. EEOC Regulation 29 C.F.R. �
1614.107(a)(2) provides that an agency shall dismiss a complaint that
raises a matter that has not been brought to the attention of a counselor
and is not like or related to a matter that has been brought to the
attention of a counselor. The FAD dismissed claim 27 because complainant
did not file his complaint within 15 calendar days of receiving his notice
of right to file a complaint. 29 C.F.R. � 1614.105(d) & 107(a)(2).
It reasoned that complainant received the notice of right to file his
complaint on December 22, 2007, but did not file it until January 7,
2008, one day beyond the 15 calendar day time limit.
EEOC Regulation 29 C.F.R. � 1614.604 explains that in counting days
for timeliness under our regulations, the first day shall be the day
after the event from which the time period begins to run and the last
day of the period shall be included, unless it falls on a Saturday,
Sunday or Federal holiday, in which case the period shall be extended to
include the next business day. The 15th day after complainant received
the notice of right to file a complaint was Sunday, January 6, 2008.
Accordingly, complainant timely filed his complaint on Monday, January
7, 2008. The FAD's dismissal of claim 27 is reversed.
Likewise, the FAD's dismissal of claim 26 is reversed. It is like or
related to claim 26. Both claims arose out of the same expectations
letter dated October 19, 2007, and the counselor's report shows
complainant specifically raised this letter during counseling.
A review of the remainder of the complaint shows that it requires
clarification by the parties. Some of the numbered items the agency
defined as claims are garbled, and many others appear intended to
explain past events and not be active claims, such as his history of EEO
activity, problems with the union, and perhaps numerous other items.2
Many of the numbered items are like and related to the expectations
letter complainant raised with the EEO counselor because they regard
the agency's opinion and assessment of complainant's performance and
competence, and actions taken as a result. In defining the complaint,
the FAD, for the most part, simply recorded what complainant wrote on
his complaint form, with no prior attempt by the agency to sort out which
items were intended to be active claims and the meaning of those claims.
Sorting things out requires some communication between the agency and
complainant regarding his complaint. Given the confusing nature of the
remainder of the complaint, we decline to rule on it procedurally here,
but instead remand it to the agency for processing in accordance with
the order below.
Accordingly, the FAD is reversed in part, and vacated in part.
ORDER
Within fifteen (15) calendar days of the date this decision becomes final,
the agency is ordered to contact complainant to get his assistance
in defining his complaint. This shall include distinguishing
background events from live claims, and clarifying garbled claims.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency shall issue to complainant a new letter of acceptance,
detailing the claims accepted for investigation. The letter shall include
acceptance of claims 26 and 27. The accepted claims, including claims 26
and 27, shall be processed by the agency in accordance with 29 C.F.R. �
1614.108 et seq.
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 acceptance 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 (M0408)
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 (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 (Z0408)
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
June 19, 2008
__________________
Date
1 This list contains some minor changes from the wording in the FAD.
2 We are not ruling here on which numbered items are background events,
and which are active claims. The agency is advised that it must process
claims of breach of settlement in accordance with 29 C.F.R. � 1614.504(b),
to the extent it has not already done so.
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0120082004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120082004