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