0120081744
08-19-2008
Adam Coleman, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Adam Coleman,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 0120081744, 0120082427
Agency Nos. 200J-0609-2006103329, 200J-0609-2007103341
DECISION
Complainant filed two separate appeals from two final agency decisions
dated January 29, 2008, and April 3, 2008, concerning his equal employment
opportunity (EEO) complaints alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeals are deemed timely
and are accepted pursuant to 29 C.F.R. � 1614.405(a). The Commission, in
its discretion, consolidates the two appeals referenced above, pursuant
to 29 C.F.R. � 1614.606. For the following reasons, the Commission
MODIFIES the agency's final decisions.
BACKGROUND
Appeal No. 0120081744, Agency Case No. 200J-0609-2006103329
During the relevant time period, complainant worked as a Social Worker
at the agency's facility in Marion, Illinois.
Complainant filed an EEO complaint alleging that he was subjected to
unlawful discrimination on the bases of disability and in reprisal for
prior protected EEO activity.
In its initial final decision (FAD #1), dated November 15, 2006, the
agency determined that complainant's complaint was comprised of the
following claims:
(1) Whether due to discrimination on the basis of disability on or about
May 17, 2006, [complainant was] not selected for the position of Social
Worker GS-12; and
(2) Whether due to reprisal, on August 16, 2006, [a named agency
official, (A1)], verbally counseled [him] regarding a [report of contact,
(ROC)] submitted by the secretary of [complainant's] department which
contained complaints about [complainant and his] colleague. However,
[A1] only met with [complainant].
In FAD # 1, the agency dismissed claim (1) for untimely EEO Counselor
contact. In addition, the agency dismissed claim (2) for failure to
state a claim.
In Coleman v. Department of Veterans Affairs, EEOC Appeal No. 0120071081
(May 3, 2007), the Commission reversed FAD #1 and ordered the agency
to continue its processing of claims (1) and (2). The Commission, in
its decision, noted that complainant's claims should be framed in the
following fashion:
(1) on May 16, 2006, complainant was asked inappropriate medical questions
during an interview for the position of Social Worker GS-12; and
(2) on August 16, 2006, [A1] verbally counseled complainant after
complainant contacted his department secretary (S1) to check on the date
of the May 16th interview. Id.
In its final decision dated January 29, 2008 (FAD # 2), the agency
determined that it violated the Rehabilitation Act with respect to
claim (1) when complainant was asked inappropriate questions during an
interview. In FAD # 2, the agency awarded complainant various remedies
with respect to claim (1).
The agency, however, found no discrimination with respect to claim (2).
The agency found that complainant did establish a prima facie case of
retaliation. The agency stated, in its final decision, that complainant
had shown that he engaged in the EEO process when he approached S1 in
an attempt to elicit information for the purposes of completing an EEO
complaint. In addition, the agency found that complainant showed that
A1 was aware of his EEO activity at the time when A1 called complainant
in for a meeting regarding S1's report of contact.1 The agency further
noted that A1 held the meeting in question just days after complainant
informed A1 that he was involved in the EEO process.
However, the agency found that A1 articulated legitimate,
nondiscriminatory reasons for his actions. Specifically, the agency
found that A1 testified that he called complainant in for the meeting in
question "to discuss the ROC and the negative perceptions complainant's
co-workers were developing about complainant based on complainant's
behavior. [A1] further testified that he called complainant for a meeting
to discuss the ROC and not [a named co-worker also referenced in the ROC,
(C1)] because he received other complaints regarding complainant from
complainant's co-workers but had not received negative reports about
[C1]."
Moreover, the agency found that complainant failed to establish that
its articulated reason for its action was pretext for retaliation.
CONTENTIONS ON APPEAL
On appeal, complainant states that he is only appealing the agency's final
decision (FAD # 2) with respect to claim (2).2 Complainant asserts that
the record establishes, by the preponderance of the evidence, that the
agency's articulated reasons for its action were pretext for retaliation.
Complainant asserts that A1's rationale for not counseling C13 who was
also named in the ROC is not credible. Specifically, complainant states
that "in [A1's] original testimony which was obtained six months prior to
his second testimony, he testified that he held the meeting with [him]
on August 16, 2006 to address [S1's] complaint. [A1] makes no claim in
his original testimony to have held the meeting with [complainant] to
address any other issue or because of any other complaint than that of
[S1]."
Complainant further states that after having obtained conflicting
testimony from A1 subsequent to a supplemental investigation, the
agency did not take steps to reconcile A1's contradictions and "simply
utilize[ed] [A1's] newly fabricated responses contained within the second
testimony" to reach their finding of no discrimination.4 In addition,
complainant asserts that the testimony of a union representative (U1)
that was present during the meeting in question does not corroborate
A1's testimony that complaints raised by other co-workers (other than S1)
were discussed during the meeting. Complainant states that U1 testified
that the meeting only was held to discuss the ROC made by S1.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence,
that the agency's explanation is pretextual. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
As set forth in the agency's final decision it concedes that complainant
established a prima facie case of retaliation. Thus, we will not review
herein whether complainant established a prima facie case of retaliation;
rather, we will only address whether the agency articulated a legitimate,
nondiscriminatory reason for its action and whether complainant
established, by a preponderance of the evidence, that the agency's
articulated reason was pretext for retaliation.
A1, in his testimony obtained as part of the supplemental investigation,5
articulated a legitimate, nondiscriminatory reason for his action.
A1 stated that the purpose of the meeting was to discuss reports of
behavior that he was hearing with respect to complainant. Specifically,
A1 stated that the discussion during the meeting included a "specific
report of contact by S1, [and] other reports from other staff that
he was perceived as being sometimes off-putting." A1's Supplemental
Deposition (Supp. Dep.) at 3. A1 in his supplemental testimony stated
that he did not meet with C1 regarding the ROC in the manner that he met
with complainant because C1 was "more of a marginal type of issue..."6
Id. at 12.
Upon review of the record, we find that complainant established, by
a preponderance of the evidence, that the agency's articulated reason
for its action was pretext for retaliation. While we acknowledge that
another co-worker (other than S1) stated that she raised concerns about
complainant to A1, in A1's initial testimony, he did not reference that he
conducted the meeting in question to discuss concerns raised by co-workers
other than S1. A1, in his initial testimony,7 stated that during the
meeting in question he was trying to find out if there was any merit to
the ROC filed by S1.8 A1's Initial Deposition (In.Dep.) at 17. A1,
in an e-mail to the EEO Investigator dated July 24, 2007, stated that
he did not meet with C1 because it was complainant who was the person
"who actually presented to [S1] that day, triggering the ROC from her."
However, a review of the ROC does not support A1's assertion. We find
that S1 in the ROC raised concerns with the conduct of both complainant
and C1. Specifically, we agree with the agency's letter requesting a
supplemental investigation, dated December 6, 2007, and referenced in
footnote 4 herein, that "[C1] was specifically mentioned as a culprit in
the ROC just as often as complainant." In addition, the ROC reflects
that both C1 and complainant had contact with S1 on August 11, 2006,
the date of the ROC.9 We further note that U1 did not testify that A1
discussed concerns from other co-workers during the meeting. U1 asserted
that "[t]he purpose of the meeting was to discuss a [ROC] received from
[S1]..." U1's Dep. at 4. Upon review of the entire record, we find
that complainant established, by a preponderance of the evidence, that
the agency's articulated reason was pretext for discrimination.
Accordingly, we REVERSE the agency's finding of no discrimination with
respect to claim (2) and we REMAND this matter to the agency to take
remedial action in accordance with the Order below.
EEOC Appeal No. 0120082427, Agency Case No. 200J-0609-2007103341
BACKGROUND
Regarding Agency Case No. 200J-0609-2007103341, complainant filed a
formal EEO complaint in August 2007. Therein, he alleged that he was
subjected to unlawful discrimination in reprisal for his prior protected
activity.
By letter dated October 17, 2007, the agency determined that complainant's
complaint was comprised of the following claims:
(A) On or about June 19, 2007, complainant was issued a proposed
admonishment that was later mitigated to a written counseling; and
(B) On or about November 28, 2006, complainant's supervisor informed
him that the period for his performance appraisal would be extended 90
days.
The agency accepted claim (A) for investigation. However, the agency
dismissed claim (B) for untimely EEO Counselor contact. The agency
stated that complainant contacted an EEO Counselor on June 25, 2007,
outside of the applicable time limit.
In a final decision dated April 3, 2008, the agency found no
discrimination with respect to claim (A). The agency found that
complainant failed to establish a prima facie case of reprisal.
Specifically, the agency stated that "complainant did not show that he
was subjected to the adverse action within such a period of time that
a retaliatory motive can be inferred." In addition, the agency found
that even assuming arguendo that complainant established a prima facie
case, the agency articulated legitimate, nondiscriminatory reasons
for its actions. Specifically, the agency stated that complainant's
supervisor (SU1) asserted that she would take care of another employee's
(E1) belongings herself; however, complainant took it upon himself to
contact E1 regarding this matter, which SU1 viewed as a challenge to her
authority. The agency further found that complainant failed to establish,
by a preponderance of the evidence, that the agency's articulated reason
for its action was pretext for retaliation.
On appeal, complainant asserts that the agency's final decision finding
no discrimination with respect to claim (A) is improper. Specifically,
complainant raises numerous arguments in support of his assertion
that he established a prima facie case of retaliation. In addition,
complainant states that he established that the agency's articulated
reason for its action was pretext for retaliation. Complainant states
that subsequent to the written counseling, SU1 informed him that she
had decided that he could now obtain and provide E1 with her belongings;
thus, complainant states that this demonstrates SU1's motive with respect
to the written counseling was retaliatory. In addition, complainant
asserts that another employee (E2) did not receive discipline from SU1
for have engaged in similar conduct.
On appeal, complainant also asserts that the agency's dismissal of claim
(B) for untimely EEO Counselor contact is improper. Specifically,
complainant sets forth the following chronology of events with respect
to claim (B). On November 28, 2006, complainant requested documents from
SU1 related to an EEO complaint. Later that day, SU1 informed him that
she was requesting a 90-day extension on his performance appraisal.
Complainant asserts that he felt that this claim was related to his
prior EEO complaint, Agency Case No. 200J-0609-2006103329, and therefore
he included this claim in his appeal brief to the Commission which he
submitted on December 10, 2006. Complainant states that he received a
letter on June 20, 2007, from the agency indicating that the Commission
remanded Agency Case No. 200J-0609-2006103329 back to the agency to
conduct an investigation. Complainant states that this letter informed
him that if he believed his claims were not properly framed to contact
the agency within 7 calendar days.10 Complainant stated that by letter
dated June 24, 2007, he requested that the agency amend his complaint to
include claims (A) and (B).11 Complainant asserted that by letter dated
July 12, 2007, the agency denied his amendment request finding that the
matters were not like or related to Agency Case No. 200J-0609-2006103329,
and informed complainant that he must undergo counseling for claims (A)
and (B).12
Complainant asserts that based on the foregoing his EEO Counselor contact
with respect to claim (B) should be deemed timely. Complainant states
that the agency erred in denying his request to amend Agency Case
No. 200J-0609-2006103329. Specifically, complainant states that claim
(B) grew out of his protected activity for his prior complaint and
due to his request for documents related to the original complaint.
Complainant further asserts that SU1 "was intimately involved in my
original complaint."
ANALYSIS AND FINDINGS
Claim (A)-Written Counseling
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of
the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming arguendo that complainant established a prima facie case
of retaliation, we find that the agency articulated a legitimate,
nondiscriminatory reason for its actions. The record contains a copy
of the June 19, 2007 Notice of Proposed Admonishment to complainant
from SU1. Therein, SU1 states that "on May 31, 2007, [complainant]
inquired of me whether [he] should phone [E1] regarding items in her
office. I told [him] no, I was handling the situation. On June 1, 2007,
[complainant] stated to me [he] had phoned [E1] to inform her that her
diplomas were still in her office. I consider [him] calling [E1] after
being instructed not to, a failure to follow instructions." The record
also contains a signed declaration under penalty of perjury from SU1.
Therein, SU1 provides that in response to an inquiry from complainant,
she told complainant not to contact E1 regarding her belongings and that
she would take care of it.13
Upon review of the record, we find that complainant failed to establish,
by a preponderance of the evidence, that the agency's articulated reason
for its action was pretext for retaliation. The Commission notes that the
record contains an e-mail from another employee to the EEO Investigator
dated January 16, 2008. Therein, the employee states that "[SU1] was in
my office when [complainant] came to the open door asking if he could
call [E1] about picking up her belongings...[SU1] told [complainant]
that she would take care of it." While complainant asserts that SU1
subsequently asked him to provide E1 with her belongings, we find that
even assuming arguendo that this assertion is true, it is insufficient
to establish pretext. While complainant asserts that he was treated
differently than E2 who engaged in similar conduct, we note that the
record does not clearly establish that E2 engaged in similar conduct,
not following an order by SU1.14 Furthermore, the Commission notes that
complainant, on appeal, acknowledges that it is not clear from the record
that E2 did not follow an order from SU1. Specifically, complainant
states "[t]he testimonies of [E2] and [SU1] reveal that either [E2]
was given a direct order to move the belongings and did not properly
complete such or that [SU1] never issued any orders to [E2]..."
Claim (B)-Partial Dismissal
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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
Upon review of the record, we agree with complainant that the agency erred
in denying his request to amend Agency Case No. 200J-0609-2006103329.
EEOC Regulation 29 C.F.R. �1614.106(d) provides that a "complainant may
amend a complaint at any time prior to the conclusion of the investigation
to include issues or claims like or related to those raised in the
complaint." (emphasis added). "In deciding if a subsequent claim is
'like or related' to the original claim, a determination must be made
as to whether the later incident adds to or clarifies the original
claim, and/or could have reasonably been expected to grow out of the
investigation of the original claim." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 EEO-MD 110, Ch. 5,
III, B (Nov. 9, 1999) (emphasis added). The record reflects that
complainant is alleging that SU1 took the action set forth in claim (B)
in retaliation for Agency Case No. 200J-0609-2006103329. Thus, claim
(B) could have reasonably been expected to grow out of complainant's
original complaint. In addition, we note that Commission records
support complainant's assertion that complainant included claim (B) in
her appeal brief for EEOC Appeal No. 0120071081 dated December 10, 2006.
Based on the specific circumstances of this case, we find complainant's
EEO Counselor contact to be timely.
Accordingly, we AFFIRM the agency's final decision finding no
discrimination with respect to claim (A). However, we REVERSE the
agency's final decision dismissing claim (B) and we REMAND this matter
to the agency for further processing in accordance with the Order below.
ORDER
Within sixty (60) calendar days of the date this decision becomes final,
the agency is ORDERED to take the following remedial action with respect
to claim (2) in Agency Case No. 200J-0609-2006103329:
1. The agency shall remove any reference to the August 16, 2006 meeting
from complainant's personnel file, if applicable.
2. The issue of compensatory damages is remanded to the agency.
The agency shall conduct a supplemental investigation of complainant's
entitlement to compensatory damages. Within sixty (60) days of the
completion of the supplemental investigation, the agency shall issue a
final agency decision pursuant to 29 C.F.R. � 1614.110(b), addressing
the issue of compensatory damages.
3. The agency shall provide EEO training to A1, with an emphasis on
retaliation.
4. The agency shall consider taking appropriate disciplinary action
against the individual referred to as A1 in this decision. The Commission
does not consider training to be disciplinary action. If the agency
decides not to take disciplinary action, it shall set forth the reason
for its decision not to impose discipline.
5. The agency shall post a notice in accordance with the paragraph
below.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled, "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
With respect to claim (B) in Agency Case No. 200J-0609-2007103341,
the agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. 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 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.
POSTING ORDER (G0900)
The agency is ordered to post at its Marion, Illinois facility copies of
the attached notice. Copies of the notice, after being signed by the
agency's duly authorized representative, shall be posted by the agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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 (T0408)
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 (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
August 19, 2008
Date
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order of the United States Equal
Employment Opportunity Commission dated_________________ which found that
retaliation in violation of EEO statutes occurred at the agency's Marion,
Illinois facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISAIBLITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions,
or privileges of employment.
The facility was found to have violated the Rehabilitation Act.
The Commission has ordered the agency to pay complainant compensatory
damages and to provide EEO training to the agency official involved in
this case.
This facility will comply with federal law and will not in any manner
restrain, interfere, coerce, or retaliate against any individual who
exercises his or her right to oppose practices made unlawful by, or
who participates in proceedings pursuant to, Federal equal employment
opportunity law.
__________________
Director
VA Medical Center
Marion, Illinois
Date Posted:____________
Posting Expires:__________________
29 C.F.R. Part 1614
1 In FAD # 2, the agency noted that A1 initially denied having knowledge
that complainant had engaged in protected activity when he contacted
complainant for the August 16, 2006 meeting. However, the agency found
that complainant submitted proof in the form an e-mail he sent to A1 on
August 11, 2006, specifically expressing that he had been attempting to
elicit information from S1 for the purpose of filing an EEO complaint.
Specifically, the agency in FAD # 2 stated "we find that [A1] was aware
of complainant's EEO activity at the time of the meeting, contrary to
the testimony of [A1]."
2 Based on these circumstances, we will not address claim (1) further
herein.
3 Complainant testified that C1 had not engaged in protected activity.
The agency did not contest this statement.
4 The record contains a letter from the agency's Director, Office of
Employment Discrimination Complaint Adjudication dated December 6, 2007
requesting a supplemental investigation pertaining to the instant matter.
Therein, the Director stated that "[A1] testified that he counseled
complainant on August 16, 2006, as a fact-finding mission based on
the ROC written by [S1]. However, [C1] was specifically mentioned as
a culprit in the ROC just as often as complainant, with just as much
disdain as was complainant, and yet [C1] was not contacted at all by
[A1]. A1 testified that he questioned complainant but did not question
[C1] because complainant was the person 'who actually presented to [S1]
that day triggering the ROC from her.' We do not understand what [A1]
meant by that statement. The ROC reported that [C1] and complainant
had each personally offended [S1]. Moreover, the ROC seemed to express
[S1's] disdain for both complainant and [C1] equally and indicated
that the problems [S1] had with complainant and [C1] were constant and
ongoing, not isolated to the contact each or either of them had with
[S1] on August 11, 2006. [A1] must now explain, in great detail, why
complainant was counseled while [C1] was not."
5 A1's supplemental testimony was taken on December 14, 2007.
6 A1, in his supplemental testimony, stated that he "eventually"
talked with C1 and complainant together with the agency's EEO Officer
with respect to the ROC. However, A1 further asserted that it was not
"in the same way I talked with [complainant]." A1's Supp. Dep. at 15.
7 A1's initial testimony was taken on July 24, 2007.
8 This was not the first time that A1 had provided conflicting testimony
in this matter. As set forth in footnote 1 herein, and supported by
the record, A1 initially claimed that he did not know that complainant
had participated in the EEO process at the time of August 16, 2006
meeting in question; however, evidence in the record reflects that A1
had knowledge of complainant's protected activity based upon an e-mail
complainant sent A1 on August 11, 2006.
9 In the ROC, S1 asserts that C1 contacted her by phone on August 11,
2006.
10 The record contains a copy of this letter.
11 The record contains a copy of this letter.
12 The record contains a copy of this letter.
13 In a declaration under penalty of perjury, complainant states that
he did not ask SU1 if he could call E1 and she never instructed him not
to call E1. He asserts that SU1 only stated that she would take care
of E1's belongings.
14 In an e-mail to the EEO Investigator dated January 14, 2008, SU1
states that "I did not issue any disciplinary actions to [E2] as I did
not issue her a direct order as I did with [complainant]."
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0120081744
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081744, 0120082427
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0120081744