0120110498
03-30-2011
Corey Weber, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Corey Weber,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110498
Agency No. 200P-0691-2010103164
DECISION
Complainant filed an appeal with this Commission from an Agency decision, dated September 21, 2010, dismissing his formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. 1614.405.
BACKGROUND
During the relevant time, Complainant worked as Office Automation Assistant at the VA Medical Center in West Los Angeles, California. Believing that he was subjected to a hostile work environment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. On August 17, 2010, Complainant filed a formal complaint.
On September 21, 2010, the Agency issued a final decision. Therein, the Agency framed the claims as follows:
Whether Complainant was subjected to a hostile work environment as evidenced by:
(1) On May 5, 2010, during a training session, the Fee Basis Manager yelled at him in front of other employees and ordered him to get his stuff, and to go work the customer service desk.
(2) On May 6, 2010, the Fee Basis Manager and Complainant's Supervisor told Complainant that he has an attitude problem and that he would remain on the customer service desk, for now.
(3) In June 2010, management denied his request for an accommodation, in the form of minimal typing, in relation to an injury he sustained to his arm/wrist in a car accident.
The Agency dismissed the formal complaint for failure to state a claim. The Agency found that Complainant did not allege a basis of discrimination, even though he had the opportunity to do so both during the informal EEO counseling and in the formal complaint. The Agency found that by failing to identify a basis, the complaint does not state a claim.
The Agency also dismissed the formal complaint on the alternative grounds that the formal complaint was not timely filed. According to the Agency, Complainant should have received the Notice of Right to File (hereinafter referred to as "Notice") no later than June 28, 2010. The Agency therefore determined that the formal complaint needed to be filed by July 13, 2010. The Agency noted that Complainant did not provide any explanation for filing an untimely formal complaint, but instead provided a copy of the envelope in which the Notice was sent. The Agency observed that the envelope "bears a stamp that indicates it is "Time Sensitive Material - GM Date August 03, 2010" along with a hand-written note stating "Date of Receipt of the EEO Original Complaint."
CONTENTIONS ON APPEAL
On appeal, with respect to the dismissal of the formal complaint on the grounds that it was not timely filed, Complainant contends that the Notice was only sent by regular mail. It was not sent with a certified return receipt. Regarding the Agency's determination that he did not raise a covered basis, Complainant categorizes the EEO Counselor's efforts as " poor work." He asserts that he raised the basis of sex with the EEO Counselor, who failed to include it in the record. Finally, Complainant states that he was terminated, effective October 25, 2010, in reprisal for filing the instant complaint.
In response, the Agency asserts that the Notice was sent on June 23, 2010 by both regular first-class mail and certified mail with a return receipt. According to the Agency, "while the record seems to indicate that the return receipt was never signed, the record also indicates that Complainant intentionally made efforts to avoid executing the return receipt. . . ."
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review, the Commission finds that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim was improper. The Commission has previously held that a complainant may delete or add bases of discrimination during the complaint process without changing the identity of the claim. See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970). The Commission gives broad application to the court's decision in Sanchez and complainants are given liberal latitude to clarify the bases of discrimination in their charges, and to add bases of discrimination after filing their charges. Edwards v. Department of Defense, EEOC Request No. 05910830 (December 19, 1991); Castillo v. U.S. Postal Service, EEOC Appeal No. 01956860 (March 22, 1996) (basis of discrimination not made clear until appeal).
In his formal complaint, Complainant did not specifically list a basis of alleged discrimination (i.e., race, color, religion, national origin, sex, age, retaliation, and disability). However, on appeal, he specifically raises the bases of sex. Complainant further asserts that he had raised a basis during the informal processing of this matter, but attributed the absence of a listed identified basis to the EEO Counselor's poor assistance. The Agency on appeal has not addressed this assertion. Moreover, the Commission determines that the matters raised in the instant formal complaint address a personal loss or harm regarding a term, condition or privilege of Complainant's employment. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
In the instant case, the Agency has not established when precisely Complainant received the Notice, thereby starting the fifteen-day time limitation. In its decision, the Agency states that the Complainant "should have" received the notice "no later than June 28, 2010." The decision makes no reference to a return receipt. It is only on appeal, that the Agency argues the Notice was sent by both regular and certified mail. Without providing any supporting evidence, the Agency contends that Complainant intentionally avoided executing the return receipt. The Agency itself acknowledges on appeal that "the only issue would be when Complainant received the [Notice] (emphasis added)." The Commission agrees, and without establishing when the time limit began the Agency did not support its decision to dismiss the Complaint as untimely filed. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
CONCLUSION
The Agency's decision to dismiss Complainant's formal complaint was improper, and is REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
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 (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 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), 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
March 30, 2011
__________________
Date
2
0120110498
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110498