0120102816
04-25-2012
Gale T. Ford, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gale T. Ford,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102816
Agency No. 200P-0600-2009102246
DECISION
Complainant filed a timely appeal with this Commission from the May 18, 2010 final Agency decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant at the Agency's Medical Center in Long Beach, California. On April 29, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability, and in reprisal for prior protected EEO activity when:
1. On December 4, 2008, she was issued a proposed removal due to her unavailability to work from October 1, 2007, through December 2, 2008, even though her doctor had recommended that she not work during that time;
2. On December 4, 2008, the Chief of Human Resources failed to inform her of any benefits other than disability retirement and continued to attempt to force her to retire by sending her disability retirement packages on January 31, 2009, and February 4, 2009;
3. On February 2, 2009, her supervisor called her home to inform her of the decision to remove her and that she would be issued a removal letter;
4. On or around February 2, 2009, she became aware that the decision to remove her was not made by a neutral party or by consultation by a higher-graded official and that the removal was processed in a manner that compromised "judicial" procedures because she was not provided two weeks notice;
5. On February 6, 2009, she was forced to sign a clearance form without an explanation as to what she was signing;
6. On February 6, 2009, she became aware that her computer access had been terminated, and management denied her request for computer access in order to view her emails or submit a leave request;
7. On February 6, 2009, she became aware that she had been placed on administrative leave, effective January 26, 2009, through the date of her removal, February 7, 2009;
8. On or around February 6, 2009, she became aware that management had falsified information in documents pertaining to her placement on paid administrative leave and the employee clearance form;
9. On February 6, 2009, management officials humiliated, degraded, and treated her like a criminal by escorting her to collect her belongings and informing her that she would be arrested if she returned to the premises for any other reason than a doctor's appointment or an emergency;
10. On February 6, 2009, management inconvenienced her, bullied her, and subjected her to an abuse of power by informing her that she could not "clear" the station until she returned her transit vouchers or write a check to pay for them, thereby also depriving her of receiving two hours of pay for the time it would have taken to do so;
11. On February 7, 2009, she was removed from employment in the middle of a pay period; and
12. On February 12, 2009, the Agency violated her Health Insurance Portability and Accountability Act (HIPPAA) privacy rights by asking the receptionist to witness receipt of a medical document.
The Agency accepted the matter as a mixed-case complaint and processed the complaint pursuant to the procedures in 29 C.F.R. � 1614.302.1 Following its investigation into the accepted claims, the Agency issued a final decision on May 18, 2010, concluding that Complainant failed to prove she was subjected to discrimination with regard to her removal and failed to show that she was subjected to a hostile work environment. The Agency noted in its decision that, as to the termination claim, Complainant had appeal rights to the Merit Systems Protection Board (MSPB), not the Commission. Further, as to the harassment claim, Complainant was given appeal rights to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the investigative file is incomplete and contains contradictory Agency testimony. Complainant argues that the Agency did not provide all of the available evidence and she would like an opportunity to prove her case. Accordingly, Complainant requests that the Commission reverse the Agency's final decision.
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that the Agency provided Complainant with appeal rights regarding her termination claim to the MSPB, not the Commission. Therefore, the Commission will not address the Agency's final decision regarding that claim. The Commission shall focus this decision on the Agency's processing of Complainant's harassment claim.
As to the harassment claim, the record shows that Complainant received the report of investigation informing her that her complaint as a whole was mixed and that once the Agency issued its final decision, Complainant could appeal the matter to the MSPB for a hearing. However, the Agency issued its final decision on the merits of harassment claim providing her with appeal rights to the EEOC without first providing her with an opportunity to request a hearing before an EEOC AJ with respect to the harassment claim. Upon review of the record, the Commission finds that although the Agency correctly identified the harassment claim as a non-mixed claim, it failed to provide Complainant with the appropriate hearing rights on the claim under 29 C.F.R. � 1614.108(f).
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination as to the harassment claim only is VACATED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER herein.
ORDER
The Agency, within thirty (30) days of the date this decision becomes final, shall provide Complainant with a copy of the investigative file and a notice of her right to a hearing pursuant to 29 C.F.R. � 1614.108(f) with regard to Complainant's claim of harassment. Following the issuance of this notice, the Agency shall process Complainant's complaint in accordance with applicable EEOC regulations.
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 (Nov. 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
April 25, 2012
Date
1 The Agency dismissed claim (12) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that the claim was outside of the scope of the EEO process. The Commission notes that Complainant does not challenge the Agency's dismissal of this claim on appeal; therefore, the Commission declines to address this matter further in the instant decision.
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0120102816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112430