0120140352
04-16-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140352
Agency No. 200J-0797-2013103471
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Contract Specialist at the Agency's National Acquisition Center Federal Supply Schedule in Hines, Illinois.
On June 14, 2013, Complainant contacted an EEO Counselor. On July 26, 2013, Complainant filed a formal complaint in which he alleged that the Agency subjected him to a hostile work environment and discrimination on the basis of his race (African-American), sex (male), disability ("service connected disabled"), age (42) and reprisal for engaging in protected EEO activity. He cited ten incidents in support of his claim:
1. Complainant "received discriminatory disciplinary counseling" which a named European American male employee did not received for a similar workplace disturbance.
2. Complainant was discriminatorily assigned to a remedial course, but the European American male employee was not similarly assigned.
3. Complainant was subjected to a disciplinary detail.
4. Complainant was reassigned to segregated seating, while an African-American female was moved from the same area.
5. Complainant was reassigned to segregated seating, away from his Caucasian coworkers, after Complainant told the Chief, Contracting, that a Caucasian coworker had harassed Complainant.
6. On an ongoing basis, Complainant was segregated from interactions with other employees.
7. Complainant was subjected to defamatory actions affecting his professional well being, but [a named] European American employee, who engaged in similar conduct, was not.
8. Complainant was retaliated against for EEO participation and subjected to an ongoing discriminatory seating arrangement.
9. Complainant was subjected to interference with his right to appeal.
The pertinent record reflects the following.
On an unspecified date, a younger, European American [Caucasian] male told Complainant, "I want to suck the knowledge out of you." Complainant reported the incident to the Chief, Contracting. After he reported the occurrence of alleged workplace harassment to the Chief Contracting, the Chief reassigned Complainant to sit "in a punishment corner away from all staff cubicles." Complainant maintains that he had been subjected to five disciplinary actions by the Chief.
Complainant states that he later learned that the younger, Caucasian male employee was not disciplined and that the Chief failed to take any action against him for his alleged harassment of Complainant. At some point, he further alleged that the Chief reassigned Complainant to a segregated seating arrangement, which excluded him from participation or interaction with his team.
The complaint identified the responding official and the location of the alleged discrimination. The complaint identified an event date as June 11, 2013, the date when he became aware of the discrimination following a conversation with another coworker. The complaint identified the relevant time period, as commencing in June of 2010 and continuing to 2013. He contacted the EEO counselor on June 14, 2013. The complaint also identified the bases and issues. The record includes a notice from the EEO Specialist, who included the Agency's assigned case number and a notation that the stated claim was harassment and hostile work environment. The EEO Counselor's report described his claim as including a reasonable accommodation claim for his alleged disability.
The Counselor's Report (Tab 6) states "The aggrieved perceived the RMO's decision to segregate him from the younger, white, similarly situated coworkers as discrimination based on race (Black), age (42) and disability (mental) and sex (male)."
On July 22, 2013, the Agency issued Complainant the Notice of Right to File (Tab 5). On July 30, 2013, the Agency sent Complainant a Notice of Receipt of Discrimination Complaint. That notice advised Complainant that the Agency's Office of Resolution Management "(ORM) was reviewing the complaint to determine if it meets the EEOC requirements for investigation and further processing."
After the complaint was filed, Complainant provided ORM with additional information on August 2, 2013. Complainant advised ORM that "the event" was a conversation with a coworker regarding their discussion about an email hoax and that conversation "verified that the five actions amounted to disciplinary actions which resulted in ongoing harassment / segregation / isolation in a hostile work environment."
No investigator had been assigned, when, on August 30, 2013, the Agency asked Complainant for additional information. ORM sent Complainant a letter, subject: Additional Information Request for the EEO Complaint. The letter stated that "an additional request for information is needed for clarification in order to make a procedural determination." The letter requested a "written explanation for Complainant's failure to contact an EEO Counselor within the required 45-day time period." The letter also asked Complainant to "define what you mean when you said the information was concealed." The letter informed Complainant that he must provide this information within five calendar days of receipt of this letter. The letter stated that "failure to provide the exact information within the allotted time limit may cause the Agency to dismiss the complaint."
The letter did not come from an investigator, as no investigator had been appointed. The information was to be directed to the ORM Case Manager.
Complainant did not respond with supplemental information. He had already advised the Agency that he didn't know until June 11, 2013 that he was discriminated against. He claims that he learned that the Chief had not disciplined a coworker outside of his protected groups for his action, but instead subjected Complainant to disciplinary actions, counseling, segregated seating, a detail and isolation.
The Agency reframed the issues and defined his complaint as only alleging race and sex discrimination. The Agency characterized the claims as alleging that Complainant was subjected to eight incidents. The Agency defined the incidents as Complainant alleging that he was subjected to work place disturbances, disciplinary counseling, assignment to a remedial course, segregated seating, segregated employee interactions, defamation, retaliation regarding seating arrangement and an interference with Complainant's right to appeal.
The Agency issued a final decision dismissing the complaint for failure to cooperate and for untimely EEO contact. In addition, the Agency reasoned that Complainant failed to state a claim because Complainant did not respond to its requests for more information. The Agency concluded, "Consequently, your complaint lacks the specificity necessary to properly process your complaint." The Agency acknowledged in its dismissal that Complainant indicated to the Agency that he was unaware that discrimination occurred until the June 11, 2013 conversation with a coworker, but the Agency stated that Complainant did not explain how the notice of that conversation led him to reasonably suspect discrimination.
This appeal followed.
ANALYSIS AND FINDINGS
On appeal, the Complainant argues that the decision should be reversed because the Agency materially altered the stated claims and bases and omitted the disability claim altogether. Complainant maintains that he stated a claim of ongoing disparate discipline. According to Complainant, the alleged harassment included being subjected to disparate treatment with regard to disciplinary actions, his assignments, seating arrangement and his opportunity to interact with other employees, inter alia. He also states that the agency did not provide notice of appeal rights in the information requests. He also seems to be saying that the Agency failed to take appropriate action to address the claim of harassment and hostile work environment.
In response, the agency argues that the Complainant lacks standing and did not provide a justification for a waiver or extension for his untimely EEO contact.
Untimely EEO Contact
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 further 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.
We find that Complainant made timely contact. The record shows that he was unaware of the alleged disparate treatment until June 11, 2013. He contacted an EEO counselor within three days of the conversation about the Agency's treatment of Complainant and more lenient disciplinary approach and terms of employment for an employee outside of Complainant's protected group. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy, v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." The Agency failed to show that Complainant was aware of the discrimination prior to June 11, 2013.Therefore, we find that Complainant contacted an EEO counselor as soon as he reasonably suspected discrimination.
Further, we find that Complainant is alleging continuing hostile work environment and ongoing disparate application of discipline procedures.
Here, the record reflects that Complainant raised a claim that he was being exposed to workplace disturbances directed at him by a younger, European American [Caucasian] male. Complainant reported to management that the he younger Caucasian man was harassing him. He claims that the Agency failed to act on the statement to counsel or discipline the comparator.
By comparison, he alleges that the Agency subjected Complainant to ongoing harassment and a hostile work environment comprised of numerous incidents, including but not limited to, being ostracized, segregated and separated from his team, after he reported the harassing statement to the Chief. He also alleges that he was subjected to five disciplinary actions, assigned to a remedial course, and that the Agency interfered with his right to appeal the action.
The Supreme Court has held that a Complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
We find that the dismissed claims constitute a claim of an ongoing hostile environment. Complainant alleges he was subjected to numerous workplace disturbances that contribute to the perception of a continuing discriminatory and retaliatory work place environment. It appears that, due to the continuing nature of his allegations, at least some of it occurred within the 45-day time frame from when he sought counseling.
Lack of Specificity / Failure to Cooperate / Failure to State a Claim
In its final decision, the agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate, arguing that Complainant failed to return the requested information. The Agency did not address his claim of retaliation, disability or age discrimination.
EEOC Regulation 29 C.F.R. � 1614.107 (a)(7) provides for the dismissal of a complaint where the agency has provided the Complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within fifteen days of its receipt, or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. The regulation further provides that, instead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available. Generally, the Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Cava v. United States Postal Service, EEOC Appeal No. 0120131535 (August 6, 2013), citing Ross v. United States Postal Service, EEOC Request No. 05900693; Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 December 22, 1994).
In the instant case, we find that, although Complainant has not explained why he did not respond with more specifics to the request for additional information regarding the specific incidents, there is insufficient evidence to support a conclusion that he purposely engaged in delay or contumacious conduct. Instead, we find that there was sufficient information in the record to have permitted the Agency to appoint an investigator and conduct the investigation (by collecting evidence from management witnesses) without further information from Complainant to permit adjudication on the merits.
A review of the record indicates that Complainant chose the traditional EEO process. He also spoke with the agency's dispute resolution specialist assigned to his case and provided extensive information as detailed in the EEO Counselor's Report). The information provided on Complainant's claims was sufficient to identify the specific management actions he is concerned with, the relevant timeframes and the responsible management officials. This is sufficient information to permit management witnesses to respond to Complainant's allegations. See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505 (July 28, 2008). Whether or not these statements by Complainant provide sufficient evidence to support his claim of harassment, discrimination and retaliation can be addressed in an adjudication of the merits of his complaint.
Accordingly, we conclude that the Agency should have appointed an investigator and initiated its investigation of the complaint without Complainant's supplemental statement and allowed for adjudication on the merits rather than dismissing the complaint.
Finally, Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Therefore, under the circumstances here, we find that Complainant's complaint was improperly dismissed. The complaint is hereby remanded to the agency for further processing in accordance with this decision and the Order below.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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 tends 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), at 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 (R0610)
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 (Z0610)
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
April 16, 2014
__________________
Date
2
0120140352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140352