Edwin Lugo, Jr., Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 8, 2007
0120065319 (E.E.O.C. Feb. 8, 2007)

0120065319

02-08-2007

Edwin Lugo, Jr., Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Edwin Lugo, Jr.,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01200653191

Agency No. 200H-0526-2006102540

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 29, 2006, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

On May 30, 2006, complainant initiated EEO Counselor contact. Informal

efforts to resolve his concerns were unsuccessful.

On July 10, 2006, complainant filed the instant formal complaint.

Therein, complainant claimed that he was subjected to harassment and a

hostile work environment, between October 2004 and January 12, 2006, on

the bases of race (Hispanic), sex (male) and age (D.O.B. 06/08/80) when:

(1) the Chief remarked on his dress attire by saying, "What are you

trying to do, act white?";

(2) the Chief alleged that complainant was trying to take his job due

to his dress attire;

(3) the Chief humiliated him several times in front of the other MCCF

staff;

(4) the Chief called him a "sissy";

(5) in September 2005, the Chief saw him putting on chapstick and remarked

"What are you putting on, lipstick?";

(6) on December 19, 2005, a supervisor of MCCF told him not to make the

Chief angry because he would make his life miserable;

(7) on December 19, 2005, during a meeting, the Chief stated "When you

go looking for another job, you have to get a reference from me and

you can get a good reference or a bad reference," a statement taken by

complainant as an indirect threat;

(8) on December 19, 2005, the Supervisor verbally harassed him by stating

"You are good for nothing";

(9) on December 19, 2005, the Chief blamed him for an incident that

occurred with a co-worker without learned the facts of the matter;

(10) on December 20, 2005, the EEO Manager informed him that he was

good friends with the Chief; and

(11) on January 12, 2006, complainant resigned from his position. 2

In its August 29, 2006 final decision, the agency dismissed complainant's

complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of

untimely EEO Counselor contact. The agency determined that complainant's

initial EEO Counselor occurred on May 30, 2006, which it found to be

beyond the 45-day limitation period. The agency further determined

that complainant was aware of the 45-day limitation period because he

attended training on the prevention of sexual harassment which included

information on the EEO process. Moreover, the agency noted that when

asked by the EEO Counselor as to the reason for the delay, complainant

responded "due to the mental and emotional stress that I was put under

by my [named Chief and Supervisor], I was forced to resign. After my

resignation, for the next approximately 4-5 months, I was in a state

of shock due to the stress that was put on me and the fact that I was

unaware of my rights as an employee."

As an initial matter, the Commission notes that the agency also dismissed

age as a basis of the complaint. The record establishes that, at the time

of the alleged discriminatory acts identified in the formal complaint,

complainant was only 26 years old. Therefore, complainant did not come

under the minimum age requirement identified by the ADEA. Consequently,

we find that the agency properly dismissed age as a basis.

On the other hand, we find that complainant's formal complaint was

improperly dismissed on the grounds of untimely EEO Counselor contact.

We acknowledge that the agency has submitted information showing that

complainant attended a "Sexual Harassment in the Workplace" training

on November 17, 2005. However, the agency has provided no evidence

to indicate the content of the training, or whether it specifically

contained information about the procedures of the EEO complaint process,

including the forty-five day time limit.

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 Defense, 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." See also Gens

v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).

Therefore, as the agency has failed to show that complainant was aware

of the forty-five day time limitation for EEO Counselor contact, we

find it incorrectly dismissed the complaint pursuant to 29 C.F.R. �

1614.107(a)(2).

Accordingly, the agency's dismissal of age and sexual orientation as

bases is AFFIRMED. The agency's final decision dismissing complainant's

complaint on the basis of race is REVERSED. The complaint, as identified

herein, is REMANDED to the agency for further processing in accordance

with the ORDER below.

ORDER

The agency is ordered to process the remanded claims (claims (1) - (11)

on the basis of race and sex) in accordance with 29 C.F.R. � 1614.302.3

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 investigate the complaint and

issue a final decision within 120 calendar days of the date this decision

becomes final. The final decision shall give complainant appropriate

appeal rights to the Merit Systems Protection Board (not EEOC).

A copy of the agency's letter of acknowledgment to complainant and a

copy of the final decision 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. 200e-16(c)(Supp. V 1993). 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

February 8, 2007

__________________

Date

1 Due to a new data system, this case has been re-designated with the

above referenced appeal number.

2 For ease of reference, the Commission has re-numbered complainant's

claims as claims (1) - (11).

3 As the complaint is alleging a pattern of harassment culminating in a

constructive discharge (forced resignation) it appears to be a "mixed case

complaint" and should be processed under those procedures. The Commission

notes that the agency, by acknowledgement letter to complainant dated

July 18, 2006, already recognized the "mixed" nature of this complaint.

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0120065319

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120065319

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0120065319