0120120063
03-09-2012
Eddie Royal, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Eddie Royal,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120063
Agency No. 200P06912011103038
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 25, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Social Science Technician at the Agency’s VAMC facility in West
Los Angeles, California.
On August 9, 2011, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the bases of disability and
reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when, on February 15, 2011, Complainant received a
notice of assignment of new duties and, on March 5, 2011, Complainant’s
access code to enter the building job site was removed. According to
Complainant, when he requested to have the code reinstated, he was told
that he would get his new code from the alarm company when he reported
to his temporary duty assignment. On appeal, Complainant asserts he
still has not received the access code.
The Agency dismissed the notice of assignment claim for failure to
contact an EEO counselor in a timely manner reasoning that the notice
was dated February 15, 2011, but Complainant did not contact the EEO
counselor on the issue until April 27, 2011. The Agency dismissed the
access code claim for failure to state a claim.
The instant appeal followed. In his appeal, Complainant mentions other
acts of harassment which he raised in an earlier complaint that was
settled.
ANALYSIS AND FINDINGS
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.
With respect to the assignment of duties claim, the Agency argues that
Complainant did not raise the matter with an EEO counselor until April
27, 2011, more than 45 days from the date of the notice. In most cases,
this would justify dismissal of the complaint.
However, 29 C.F.R. § 1614.604(c) provides that the time limitations
provided for in the EEO complaint processing regulations are subject
to waiver, estoppel and equitable tolling. Under this authority, we
find that this is an appropriate case to excuse Complainant’s failure
to contact the appropriate EEO counselor within the regulatory 45-day
period. Information in the record indicates that the parties engaged
in a mediation session concerning a previously filed EEO complaint on
February 10, 2011, a settlement agreement was reached, and less than a
week later Complainant received the alleged retaliatory assignment of
duties letter. Based on the unique facts of this case, the Commission
determines that it is appropriate to reverse the Agency’s dismissal
of this matter for untimely EEO counselor contact and remand the claim
for further processing. In reaching this decision, we have considered
that the complaint at issue concerns an allegation of retaliation just
days after entering into a settlement agreement with the Agency. We also
note that the supervisor in question did not respond to requests for a
interview with the EEO counselor. Under these facts, the Commission finds
it appropriate to require the Agency to continue processing of the claim,
despite Complainant’s delay in seeking EEO counseling.1
With respect to the denial of the access code, the Commission finds that
the matter states a claim. Complainant explained that others, even part
time employees and contractors, have the access code. Because he does not
have the code, he has to wait until someone arrives to work and lets him
in. Others do not have to wait. In his appeal, Complainant indicated he
still had not been given the code. Thus, Complainant has sufficiently
alleged that he suffered harm or loss with respect 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).
Accordingly, the Agency's final decision dismissing Complainant's
complaint REVERSED and the matter is REMANDED to the Agency for further
processing in accordance with the Order as set forth below.
ORDER (E0610)
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 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 9, 2012
__________________
Date
1 Additionally, Complainant, on appeal, states he was hospitalized for
a month and a half during the pertinent time period.
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0120120063
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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