Craig F. Johns, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 27, 2002
01A04894_r (E.E.O.C. Sep. 27, 2002)

01A04894_r

09-27-2002

Craig F. Johns, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Craig F. Johns v. Department of Veterans Affairs

01A04894

September 27, 2002

.

Craig F. Johns,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04894

Agency No. 200K-896

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated June 2, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of disability, sexual orientation and in

reprisal for prior protected activity:

in August 1994, complainant overheard GH stating �I have to work across

from him and he'll be looking at me all day;�

in August 1994, complainant's first day of employment with the Office of

Inspector General (OIG), NG sent him home because he had done something

�to piss him off;�

in August 1995, the OIG's office developed a routing and transmittal

sheet that identified why negative comments were being made about

complainant's clothing,

his use of Prozac and his sexual orientation, which

resulted in his nickname of �Armani;�

in August 1996, NG falsified inspection reports and blamed complainant

for pursuing the wrong subject. NG also stated that complainant had

too many hours with no overtime. Complainant then requested a copy

of the report through the Freedom of Information Act (FOIA), but his

request was denied;

on December 18, 1996, complainant's investigative authority was suspended

and he was restricted to the office by NG. NG informed complainant

that he had received a letter from complainant's physician and that

�he did not want another McDonald in here;�

in February 1996, NG completed a VA supervisory evaluation for

employment at the GS-13 level indicating outstanding work and experience.

Two months later, NG completed the same form at the GS-12 level with

a fully successful rating. In doing so, complainant believe they were

trying to get rid of him, thus contributing to him not being promoted

to a GS-13;

in June 1996, SW approached complainant and said �Craig here is your

magazine.� Complainant was offended by the magazine because it was

a gay magazine entitled �Gay Chicago Magazine,� Vol. XX Number 24

dated June 13, 1996. When complainant refused to accept the magazine,

complainant later found it in his mailbox;

on October 4, 1996, SW posted various obscene articles of homosexuality

which complainant found offensive. Other OIG employees sent faxes that

joked about sexual harassment;

in December 1996, complainant participated in a training seminar

(San Antonio, TX) where derogatory comments were made referencing

his disability. Complainant viewed this as an attack against him.

As a result, complainant was embarrassed, humiliated and agents from

the Chicago area shunned and ignored complainant;

in December 1996, two agents left complainant stranded at the San

Francisco airport, complainant was forced to rent a car and was not

reimbursed. Complainant was informed that changes had been made and

the agent threatened to �hog tie him up like a pig� and complainant

was called a �m----r f---- r;�

in December 1996, OIG failed to allow him a temporary detail. WM sent

him a letter stating he could not honor complainant's transfer.

Complainant then responded by stating that his request was a temporary

detail not a transfer, but he did not receive a response;

in January 1997, during an onsite investigation MR stated that

complainant did not want to work because of an illness that was endured

by his mother;

(m) in January 1997, upon completion of his investigation complainant

left the agency. Complainant informed MR about the negative and teasing

comments that were made by three employees. One of the three employees

walked up and down the hall yelling �what a f-----g a------e.� Another

employee came into complainant's office and accused him of saying that he

was a homosexual based on the movie �Deliverance�, while reaching/holding

his side as if he was going to pull his gun;

in August 1997, an agency official wrote a letter to complainant's

physician questioning complainant's diagnosis and that he (physician)

did not consult with the FBI or the Federal Prosecutor in order to

validate how the work environment played in his medical condition; and

on March 9, 1999, complainant submitted a letter to the agency requesting

a copy of his travel voucher for the period of May 22-26, 1995, however,

the agency never complied with his request.

In its FAD, the agency dismissed the complaint pursuant to 29 C.F.R. �

1614.107(a)(2), for failure to contact an EEO Counselor within the

required 45-day period. The agency determined that complainant's

initial EEO Counselor contact occurred on January 6, 2000, and that it

was more than forty-five days after the most recent alleged discriminatory

incident. In addition, the FAD found no continuing violation, determining

that none of complainant's claims were timely and that they were not

interrelated.

On appeal, complainant contends that he contacted the EEO office by letter

dated July 5, 1997 requesting an investigation. Complainant further

contends that he sought EEO contact on numerous other occasions.

In response, the agency argues that the complaint was properly dismissed

for the reason set forth in its decision. Regarding complainant's claim

based on sexual orientation, the agency determined that complainant failed

to state a claim because the Commission does not have jurisdiction over

claims based on sexual orientation. With respect to claims (l) and (m),

the agency argued that complainant also failed to state a claim because

he should have raised the allegations in the MSPB's administrative

process. The agency further argued the Commission should dismiss claims

(l) and (m) �because they involve appellant's interactions with the

Agency's representative during the preparation for proceedings before the

MSPB.� Regarding complainant's reprisal claim, the agency determined

that complainant had failed to set forth a cognizable claim under the

Commission's regulations because reprisal due to "whistle blowing"

is not a protected basis.

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. EEOC Regulations additionally provide that the agency or the

Commission shall extend the time limits when the individual shows that

she was not notified of the time limits and was not otherwise aware of

them, that she did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite due

diligence she was prevented by circumstances beyond her control from

contacting the Counselor within the time limits, or for other reasons

considered sufficient by the agency or the Commission.

The agency found that complainant's initial EEO Counselor contact occurred

on January 6, 2000, and that the matters addressed in these allegations

occurred more than forty-five days prior to January 6, 2000. However, we

find that the record supports a determination that complainant's initial

EEO Counselor contact occurred prior to January 6, 2000. We note that

when the EEO Counselor inquired about the delay, complainant stated�I

did contact the Hines VAMC EEO personnel within 45 days of December 23,

1996. I was referred back and forth until someone at Hines informed

me that since I worked for the Inspector General, my complaint(s) had

to go to Washington, D.C.� We further note that on appeal, complainant

argues that he contacted a Regional EEO Officer in Washington, D.C. by

letter dated July 5, 1997, and that he was unaware of the time limit.

The record also shows that complainant contacted his Congressman in 1999,

concerning his alleged hostile work environment. Further, the record

contains a copy of the agency's letter dated April 14, 1998, informing

complainant to contact an EEO Counselor within the 45-day time limit,

which was addressed to a wrong street. The agency fails to assert

that complainant had either actual or constructive notice of the time

requirement for contacting an EEO Counselor. Furthermore, we note that

the record is devoid of any copies of relevant EEO postings or training

materials to demonstrate that complainant knew, or should have known,

of this requirement.

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)).

Given the circumstances of this case, the Commission determines that

there is sufficient evidence that complainant initiated EEO Counselor

contact well prior to January 6, 2000. As noted above, for example,

complainant maintained that he contacted an EEO Counselor some time

in late 1996, or early 1997, and that he was referred �back and forth�

to various EEO officials until he was directed to contact the agency's

Washington office. The agency did not proffer any evidence to refute

this contention. Moreover, we find that a fair reading of the numerous

matters raised in the instant complaint reflects a comprehensive claim

of harassment. Because some of the issues were timely raised with an

EEO Counselor, the Commission determines that any claims that occurred

more than 45 days prior to complainant's initial EEO Counselor contact

were also timely raised.

We note that on appeal, the agency argues for the first time that some

of the claims fail to state a claim, or are inextricably intertwined

with MSPB matters. We are unpersuaded by these arguments. However, we

do agree with the agency's argument that the basis of sexual orientation

is not a protected basis under Title VII; moreover, regarding the basis

of reprisal we agree with the agency's argument that there is no record

that complainant participated in prior protected activity.

Accordingly, we find that the agency dismissal of the bases of reprisal

and sexual orientation was proper and is AFFIRMED. The agency's decision

to dismiss the instant complaint on the basis of disability is REVERSED.

The complaint is REMANDED to the agency for processing consistent with

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 (K0501)

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 (M0701)

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/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 (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

September 27, 2002

__________________

Date