0120093347
01-07-2010
Robert VanSinger, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert VanSinger,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093347
Agency No. 200H04022009100328
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 1, 2009, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
Complainant is a former Police Officer, at the VA Medical Center
located in Togus, Maine. According to the agency, on October 24,
2008, complainant contacted an EEO counselor to allege that he had been
discriminated against when the agency used the results of an August 1,
2008 psychological testing, which he believed had been required of
him without cause, as a basis to terminate his position in Togus on
September 12, 2008, prior to the conclusion of his probationary period.
On February 2, 2009, complainant filed a formal EEO complaint on this
same matter, which the agency defined as consisting of two separate
claims of disability discrimination:
1. On August 1, 2008, the agency subjected him to psychological testing
without cause; and
2. On September 12, 2008, he was terminated from his position with the
agency during his probationary period.
The agency dismissed claim 1 as untimely pursuant to EEOC Regulation
29 C.F.R. � 1614.107(a)(2). Specifically, the agency found that
complainant's contact with an EEO Counselor on October 24, 2008,1
regarding his concerns regarding psychological testing on August 1,
2008 was untimely. The agency dismissed claim 2 in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(4) which requires the dismissal of
an EEO complaint where complainant has filed an appeal with the Merit
System's Protection Board (MSPB) and 29 C.F.R. � 1614.302 indicates
that complainant has elected to pursue the non-EEO process. The instant
appeal followed.
As an initial matter, we find that a fair reading of the record indicates
that the agency improperly characterized the instant complaint as
consisting of two distinct claims. As a result, the agency treated the
two claims in piecemeal fashion in its dismissal decision. Instead,
the record indicates that complainant is asserting a single claim of
wrongful termination, which he asserts was discriminatory, at least
in part, because it was based on an unjustified psychological testing.
Therefore, we conclude that complainant timely contacted an EEO counselor
within the required 45 days of the effective date of his termination,
which subsumes the psychological testing issue. Accordingly, to the
extent the agency's dismissal was based on untimely EEO counselor contact
it is reversed.
The agency also dismissed the termination claim in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(4) which requires the dismissal of an
EEO complaint where complainant has filed an appeal with the MSPB and
29 C.F.R. � 1614.302 indicates that complainant has elected to pursue
the non-EEO process. The record indicates that complainant filed an
appeal with the MSPB on October 14, 2008 regarding his termination prior
to filing his EEO complaint on the same matter on February 2, 2009.
The record further indicates that he withdrew his Appeal by letter
dated October 28, 2008. However, the Commission has long held that
voluntary withdrawal of an MSPB appeal does not negate a prior election.
Hammond v. General Services Administration, EEOC Request No. 05940428.
On appeal, complainant's attorney indicates that in its Notice of
Termination, the agency failed to properly advise complainant regarding
his MSPB election rights. Upon review of the agency's September 11, 2008
correspondence advising complainant of his termination, the Commission
finds that the language regarding complainant's right to pursue either
an MSPB appeal or an EEO complaint, but not both, reads as follows:
a. If you believe the decision to separate you was based on
partisan political reasons (political affiliation) or marital status,
or on discrimination based upon race, color, religion, sex, national
origin, age (over 40) or physical or emotional handicapping condition in
addition to partisan political reason or marital status, you may appeal
to the Merit Systems Protection Board (MSPB) no later than 30 days after
your separation is effected. [emphasis added].
b. If you believe your termination is based solely upon
discrimination because of race, color, religion, sex age (if over 40),
national origin, physical or emotional handicap, you must contact your
EEO Counselor at the Office of Resolution Management (ORM)...
The record further indicates that complainant was not represented
by an attorney at the time he filed his MSPB appeal. Based on this
record, we find that the agency's instructions regarding complainant's
rights concerning his discrimination claims were ambiguous and
confusing. Moreover, we note that an appeal form to the MSPB was included
in the termination notice, further leading complainant to the conclusion
that he needed to file an appeal with that Board. We find therefore,
that the agency's dismissal of the termination claim in accordance with
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) was improper.
Finally, we note that on appeal, complainant's attorney argues that the
agency has mischaracterized complainant's complaint by not identifying
complainant's additional claims that the agency improperly obtained
medical information through its examination of complainant and that the
agency failed to properly collect and maintain complainant's confidential
medical records as obtained through the August 1 psychological testing.
However, a review of the record herein, discloses that complainant failed
to address these additional claims in either his formal complaint or in
his statements to the EEO Counselor.
Accordingly, after a thorough review of the record herein, the Commission
reverses that agency's dismissal decision and remands the complaint
to the agency for processing in accordance with this decision and the
Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim of discrimination
(wrongful termination based on results of improper psychological testing)
in accordance with 29 C.F.R. � 1614.108 et seq. 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 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
January 7, 2010
__________________
Date
1 Complainant argues that he spoke with an EEO official on September 11,
2008 regarding his impending termination. In a letter to the agency's
EEO office dated February 28, 2009, complainant documents his alleged
contact with the agency official on September 11, 2008. Therein,
complainant indicates that he questioned an EEO counselor regarding
"avenues of appealing [his] impending termination." He alleges that
he was advised that it would be best to resign before his termination
became effective. In addition, complainant states that he was given
the number of a local attorney.
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0120093347
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120093347