01994549
03-28-2000
Richard Becker, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Richard Becker, )
Complainant, )
) Appeal No. 01992313
) 01994773
) 01994549
Togo D. West, Jr., ) Agency No. 200-H-0632-98-2889
Secretary, ) 200R-0632-98-4149
Department of Veterans Affairs, ) 200H-0632-98-4572
Agency. )
)
DECISION
On January 9, May 4, and May 25, 1999, complainant filed timely appeals
with this Commission from three final agency decisions (FAD), pertaining
to his complaints of unlawful employment discrimination in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and Section 501of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Because the claims
raised in these appeals have a common factual basis, they are hereby
consolidated for the sake of clarity and judicial economy.
A review of these appeals reveals that complainant filed five separate
complaints between October 19, 1998 and December 29, 1998, which raised
seven claims<2> and resulted in three separate FADS. In his first two
complaints, filed on October 19, 1998 and November 11, 1998 (resulting
in one FAD), complainant alleged that he was discriminated against on
the bases of his sex (male), age (62), reprisal (prior EEO activity)
and disability (left foot condition) when:
(1) on August 9, 1998, he was not hired, transferred, or reassigned to
the VCS; and
(2) he was denied a light duty assignment.
The FAD in response to these complaints is dated January 8, 1999.
Therein, the agency dismissed claim (1) pursuant to EEOC Regulation
37,644, 37,656 (1999) (to be codified and hereinafter referred to as
29 C.F.R. � 1614.107(a)(1)), noting that it failed to state a claim
because complainant had applied for a non-existent position. The agency
dismissed claim (2) under EEOC Regulation 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)),
noting that complainant failed to file his formal complaint within the
15-day time limit.
Complainant again contacted an EEO Counselor on October 13, 1998,
alleging he was subjected to discrimination on the bases of sex and
reprisal when he received a reprimand for patient care on October 5, 1998.
Complainant received a right to file notice on November 10, 1998, and on
November 11, 1998, filed a formal complaint. Therein, he alleged that he
was subjected to discrimination on the bases of age and reprisal when:
(3) he was not hired/promoted/reassigned/transferred to the VCS from
1996 through 1998; and
(4) he was harassed from 1996 through 1998 (no details noted).
The FAD, dated May 14, 1999, dismissed this complaint under 29 C.F.R. �
1614.107(a)(1) , noting that it was the same as a claim already decided
by the agency, and citing the case involving claims (1) and (2).<3>
Finally, complainant filed two complaints on December 28 and 29, 1998
(resulting in one FAD), alleging he was subjected to discrimination:
(5) on the bases of sex, disability (knee injury) and reprisal when he
was harassed (no details noted);
(6) on those same bases when he was told his light duty assignment would
end on December 16, 1998; and,
(7) on the bases of reprisal and age when he was not hired/reassigned
to the VCS.<4>
The FAD, dated April 30, 1999, dismissed claim (5) pursuant to 29
C.F.R. � 1614.107(a)(2), noting that it had not been discussed with
an EEO counselor. Claims (6) and (7) were dismissed under 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency concluded that
in regard to claim (6), complainant failed to show a personal loss or
harm given that management agreed during counseling to extend his light
duty assignment through March 1999. The agency concluded that Claim
(7) also failed to state a claim because complainant did not establish
that he had suffered a personal loss or harm, as he was not responding
to a specific vacancy announcement.
On appeal, complainant essentially restates his position and argues that
his claims should be investigated. The agency responds by reiterating
positions offered in its FADS and noting complainant's history of filing
numerous complaints over non-selections for positions without a specific
vacancy announcement.
ANALYSIS AND FINDINGS
As an initial matter, we note that on appeal complainant alleges that he
was charged with sick leave abuse on April 30, 1999, and that this charge
was motivated by sex discrimination. Complainant is advised that if he
wishes to pursue, through the EEO process, this claim raised for the
first time on appeal, he shall initiate contact with an EEO counselor
within fifteen days after he receives this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the new claim within the above fifteen day period, the date complainant
filed the appeal statement in which he raised this claim with the agency
shall be deemed to be the date of the initial EEO contact, unless he
previously contacted a counselor regarding these matters, in which case
the earlier date would serve as the EEO counselor contact date. Cf. Qatsha
v. Department of the Navy, EEOC Request No. 05970201 (January 16, 1998).
Turning now to claim (1), we find that the agency properly dismissed
this issue for failure to state a claim. Complainant did not identify a
single vacancy for which he applied and was not selected. In response
to the counselor's questions about what job complainant applied for,
complainant stated that he sent an application to the VCS because he
knew it always had vacant positions, rather than in response to a vacancy
announcement or recruitment advertisement. Since it appears, therefore,
that complainant did not apply for any vacancies, he has no standing
to raise a discrimination claim in this regard. See Owen v. Social
Security Administration, EEOC Request No. 05950865 (December 11, 1997).
Accordingly, the agency's dismissal of claim (1) is affirmed.
Turning now to claims (3) and (7), we find these to be the same claim.
Complainant essentially filed three different claims (1, 3 and 7)
alleging that his failure to obtain a job at the VCS, either through a
direct hiring decision, promotion, reassignment, or transfer was due
to discrimination. Unlike claim (1), however, in claims (3) and (7)
complainant alleged that he applied for a job in response to a recruitment
advertisement in the New York Times in November and December 1998.
We agree with the agency, however, that complainant failed to discuss
claim (3) with an EEO Counselor--the counseling report clearly indicates
that the issue discussed was a reprimand. Claim (3) therefore should
have been dismissed pursuant to 29 C.F.R. � 1614.107(a)(2). Accordingly,
the agency's dismissal of claim (3) was proper.
In regard to claim (7), during his November 28, 1998 counseling session,
complainant discussed his attempt to obtain a job at the VCS in response
to a November/December 1998 recruitment advertisement in the New York
Times. In concluding that claim (7) failed to state a claim, the agency
relied on the fact that complainant did not allege that his attempts
to become a retail manager or supervisor at the VCS were triggered
by a specific vacancy announcement, noting that he therefore failed
to establish that he suffered a personal loss or harm. We disagree.
The only questions for the agency to consider in determining whether
a complaint should be investigated are whether the complaint alleges
employment discrimination on a basis covered by EEO statutes and whether
complainant is aggrieved. If the answer is yes, then the agency must
accept the complaint for processing, regardless of what it thinks of the
merits. See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Here, complainant alleged that he sent an application
to the VCS in response to an advertisement in the New York Times and
that he failed to obtain a job at the VCS due to his age and prior EEO
activity.<5> We are aware that this complainant has filed numerous
complaints and appeals in relation to his attempt to gain employment at
the VCS and that, in the past, we have warned complainant about abusing
the EEO process.<6> In this instance, however, he has stated a claim
that should be investigated. Accordingly, the agency's dismissal was
improper and is hereby reversed and remanded to the agency for further
processing.
Claims (2) and (6) involve allegations of light duty assignment
abuse. We find that the agency properly dismissed claim (2) wherein
complainant alleged he was denied light duty on September 8, 1998.
Although Complainant received the notice of final interview on October
13, 1998, advising him to file his complaint within 15 days, he did not
file a complaint until November 11, 1998, beyond the 15-day time limit.
Accordingly, the agency dismissal of claim (2) is affirmed.
In claim (6), complainant alleged that, due to his sex, disability,
and prior EEO activity, the agency refused to extend his light duty
assignment beyond December 16, 1998. Complainant further explained that
the light duty requests of female nurses were treated more favorably
than his. The agency argued that because complainant's light duty status
was extended to March 1999, he failed to establish that he suffered a
personal loss or harm. Again, we disagree. A correct reading of the
complaint indicates that complainant alleged that the agency continually
scrutinizes and responds to his requests for light duty more harshly
then the requests of his female co-workers. The fact that the agency
extended his current light duty assignment after he filed a complaint,
does not eviscerate his claim of discrimination. The agency's dismissal
of claim (6) was therefore improper and is hereby reversed and remanded
to the agency for further processing.<7>
According, the agency dismissal of claims (6) and (7) is reversed
and these claims are remanded for further processing. On remand,
the agency shall investigate whether complainant, after applying for a
job in response to a recruitment advertisement in the winter of 1998,
was denied employment with the VCS due to his age, prior EEO activity,
or disability. The agency shall also investigate whether complainant's
requests for light duty assignments are scrutinized more harshly or
otherwise dealt with less favorably than the requests of his co-workers
due to his sex, age, prior EEO activity or disability.
We remind complainant, however, that the Commission retains the right to
protect its process and procedures from misuse and abuse and that future
allegations that are similar or identical to these, lack specificity,
or involve matters previously resolved may trigger dismissal under EEOC
Regulation 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(8)).
Turning to complainant's vague claims of harassment, claims (4) and
(5), a thorough review of the records for all three of these appeals
did not lead to any specific information concerning these harassment
allegations. Complainant appears to have merely checked off the box
labeled �harassment� on the formal complaint forms. We note, however,
that complainant may have intended to allege that his claims involving his
failure to obtain a job at the VCS and light duty abuses together created
a hostile work environment. As noted above, these claims�claims (6) and
(7)-- are hereby remanded to the agency for investigation. On remand,
the agency shall include an investigation into whether these claims
created a hostile work environment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
CONCLUSION
Accordingly, the agency's dismissal of claims (1), (2), and (3) was proper
and is affirmed. The agency's dismissal of claims (4), (5), (6), and
(7) was improper and these claims are remanded to the agency for further
processing consistent with this decision and applicable regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
3/28/00 _______________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ _______________ ________
DATE Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 As the discussion below will discuss, certain of these claims are
identical.
3 The agency also noted that these claims were not those raised during
the counseling session preceding this complaint.
4 This complaint also includes reference to a class complaint involving
the unfavorable treatment of male nurses by management. A review of
the counselor's report reveals that complaint asked about the status of
a class complaint he filed on behalf of male nursing assistants during
counseling. The Counselor noted that this was the subject of Office of
Resolution Management (ORM) Case No. 200H-0632-982240. This issue is
not addressed in this decision.
5 In certain complaints, complainant also alleged that this incident
was due to his disability.
6 In Becker v. Department of Veterans Affairs, EEOC Request No. 05960799
(February 21, 1997), complainant was warned that future appeals would be
summarily dismissed if (1) he failed to timely bring to the attention of
the EEO Counselor a specific matter (e.g. a nonselection for a specific
vacancy for which he applied); (2) he failed to specify the date of the
alleged discriminatory event, the effective date of an alleged personnel
action, or the date he knew or reasonably should have known of the
discriminatory event or personnel action; and (3) a written complaint
has not been submitted to the appropriate official within 15 calendar
days of his receipt of a notice of the right to file a complaint. The
case at hand does not meet these requirements in that complainant has
timely pursued his claim and specified that he applied for a position
in response to a New York Times advertisement in November/December 1998.
7 Complainant did not allege that claim (2) was timely under a theory
of continuing violation. However, claim (2) must still be considered
as background evidence in the investigation of the remanded claims.
See Ferguson v. Department of Justice, EEOC Request No. 05970792 (March
30, 1999).