01a04776
01-04-2001
Alvin Taylor, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Alvin Taylor v. Department of Veterans Affairs
01A04776
January 4, 2001
.
Alvin Taylor,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04776
Agency No. 220H-1567
DECISION
Alvin Taylor (complainant) filed a timely appeal with this Commission from
a final agency decision (FAD) dated June 8, 2000 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.<1> In his complaint, complainant alleged that he was harassed and
subjected to retaliation due to his prior EEO activity under Title VII
when:
On January 4 and January 19, 2000, the Chief Executive Officer (CEO)
refused to meet with him after indicating that he did not follow protocol
when planning a Black History Month Program and contacting individuals
outside the Medical Center;
On January 19, 2000, the Chief of Chaplain Services (CCS) sent complainant
an email asking him when his belongings would be removed and his office
made available;
he was placed in a competitive service work pool position with no chaplain
duties despite his status as an excepted service Chaplain on September
13, 20 and 29, 1999.
The agency dismissed claims 1 and 2 pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(1), for failure to state a claim. The agency
found that complainant did not indicate that he suffered a personal
loss or harm with regard to a term or condition of employment and
that the incidents described did not rise to the level of creating a
hostile work environment. The agency dismissed claim 3 pursuant to 29
C.F.R. � 1614.107(a)(2), finding that complainant failed to contact an
EEO Counselor within the required 45-day time period. The agency noted
that it had considered complainant's claim that he did not realize that
his reassignment to the competitive service pool was discriminatory until
January 19, 2000 when CEO refused to meet with him, but determined that
this explanation was insufficient to justify a four-month delay.
On appeal, complainant contends that he has been subjected to an
ongoing pattern of reprisal and alleges that the agency has distorted
and fabricated facts.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of an 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). "The time
period is triggered as soon as a complainant suspects discrimination
and the complainant may not wait until all supporting facts have become
apparent." Whalen v. Department of Justice, EEOC Request No. 05960147
(September 18, 1997).
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. In the case at hand, complainant
acknowledged that he was aware of his reassignment to the competitive
service work pool in September 1999, approximately 4 months before he
contacted an EEO counselor. Furthermore, complainant did not claim
that he was unaware of the time limits or that he was unable to contact
a Counselor. Rather, complainant claimed, in essence, that he was not
aware and reasonably should not have been aware that the discriminatory
act occurred until CEO refused to meet with him in January 2000, almost
four months after the reassignment. We agree with the agency that this
explanation is insufficient to justify an extension of the time limit.
Complainant was aware of his reassignment by the end of September 1999.
Even assuming that he did not believe that this action was discriminatory
until January 2000, a reasonable person would have suspected as much by
the end of September 1999.
The Commission has held that the normal time limit for contacting an EEO
Counselor may be suspended when a complainant alleges facts sufficient to
constitute a continuing violation, i.e., the existence of a discriminatory
system or policy, or a series of related discriminatory or retaliatory
acts occurring both before and during the filing period. See Guba
v. Department of the Army, EEOC Request No. 05970635 (February 11,
1999); Rohrer v. Department of Health and Human Services, EEOC Request
No. 05940965 (April 12, 1995). If one or more of the interrelated
acts falls within the time period for contacting an EEO Counselor,
the complaint is deemed timely with regard to all acts. See Godby
v. Department of the Treasury, EEOC Request No. 05960220 (May 7, 1998).
Relevant to this determination are whether the discrete acts were similar
in nature; whether the acts were recurring or were more in the nature
of isolated employment decisions; whether an untimely discrete act
had the degree of permanence which should have triggered an employee's
awareness and duty to assert her rights; and whether the same agency
officials were involved. See Woljan v. Environmental Protection Agency,
EEOC Request No. 05950361 (October 5, 1995).
Although complainant alleges on appeal that he was subjected to ongoing
retaliation, the incident described in claim 3 is not so related to
those described in claims 1 and 2 as to constitute part of a continuing
violation. Complainant alleged that different management officials were
responsible for these actions. Moreover, claim 3 involved an isolated
employment action�complainant's reassignment from one type of position
to another�at the hands of a human resources official, whereas claims
1 and 2 involve complainant's work performance and relationships with
CEO and CCS.
Accordingly, the agency's dismissal of claim 3 was proper and is hereby
AFFIRMED.
Turning to claims 1 and 2, we find that these incidents do state a claim.
A thorough review of the record reveals that complainant alleged that
due to his prior protected activity, CEO falsely accused him of failing
to follow protocol when planning the Black History Month Program and
contacting individuals outside the agency. Complainant further alleged
that in addition to refusing to meet with him when he attempted to
discover what rules he had breached, CEO also sent e-mails to individuals
whom complainant had invited to participate in the Black History Month
Program, informing them that the invitation was revoked and indicating
complainant had not followed proper protocol in issuing the invitations.
Finally, complainant alleged that on the same day that CEO refused to meet
with him to discuss the protocol issue, he received an e-mail from CCS
asking him when he would be vacating his office. Complainant believed
that the timing of this e-mail evidenced a harassing purpose.
While the agency is correct that complainant did not allege that he
suffered a personal loss with respect to a term, condition or privilege
of employment, the Commission has a policy of considering reprisal claims
with a broad view of coverage. See Carroll v. Department of the Army,
EEOC Request No. 05970939 (April 4, 2000). Under present Commission
policy, claimed retaliatory actions which can be challenged are not
restricted to those which affect a term or condition of employment.
Rather, a complainant is protected from any discrimination that is
reasonably likely to deter protected activity. See EEOC Compliance Manual
Section 8, �Retaliation,� No. 915.003 (May 20, 1998), at 8-15; see also
Carroll, supra. In the case at hand, we conclude that complainant has
alleged facts which, if proven, could constitute discriminatory harassment
and/or reprisal. Accordingly, it is the decision of this Commission to
REVERSE the agency's dismissal of claims 1 and 2 and REMAND these matters
for further processing in accordance with this decision and applicable
regulations.
Lastly, we note that complainant raised new issues for the first time
on appeal. Specifically, complainant alleges in his appeal statement
that he was denied the opportunity for advancement and subjected
to a hostile work environment when his application to attend an ADR
training program was not answered and when he was denied consideration
for a collateral duty position. It appears from the appeal statement
that these actions allegedly occurred between May 2000 and July 2000.
Complainant is advised that if he wishes to pursue, through the EEO
process, the additional allegations 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 allegations
within the above fifteen day period, the date complainant filed the
appeal statement in which he raised these allegations 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).
Furthermore, as we are remanding claims 1 and 2 for further processing,
we advise complainant that he may amend the pending complaint to add
claims that are like or related to it. See 29 C.F.R. � 1614.106(d).
If complainant chooses to ask the agency to amend his pending complaint
to include the new allegations, the agency is advised to follow the
instructions on amending complaints given in the Equal Employment
Opportunity Commission Management Directive for 29 C.F.R. Part 1614,
as revised November 9, 1999 (EEO-MD-110), at 5-9.
CONCLUSION
After a careful review of the record, we find that the agency properly
dismissed claim 3 and therefore AFFIRM that dismissal. We note, however,
that the agency's dismissal of claims 1 and 2 was improper and we hereby
REVERSE that dismissal and REMAND the claims for further processing as
set forth in the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 4, 2001
Date
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
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.