Homer Ford, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 18, 2004
01a45279 (E.E.O.C. Nov. 18, 2004)

01a45279

11-18-2004

Homer Ford, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Homer Ford v. Department of Veterans Affairs

01A45279

November 18, 2004

.

Homer Ford,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A45279

Agency No. 200L-0623-2004103164

DISMISSAL

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 27, 2004, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (Native American), sex (male), disability (80% compensable Purple

Heart veteran), and age (57 years old) when:

on May 17, 2004, he was subjected to a constructive reassignment by the

agency which destroyed his 17 year career as a Human Resources Specialist

and created a hostile work environment;

in April 2001, he was reprimanded by two supervisors (S1: female;

S2: male);

S1 asked him to help resolve an EEO complaint filed by another employee

by working up a settlement agreement and, after completing the task,

he learned that S1 accused him of taking this responsibility without

approval;

he was badmouthed by S1;

S1 opened a questionable vacancy announcement and moved her husband into

the position and when he expressed his reservations concerning this to

S2, S2 removed S1's signature and signed it himself;

after expressing his concerns to S2 about the way S1 opened various

vacancy announcements, S2 gave him a Letter of Counseling;

S1 attempted to fragment the office by telling everyone that complainant's

co-worker (CW1: female) was worthless as a coding clerk;

in April 2001, S1 blamed him for an error related to the retirement

package of an employee;

in July 2002, S1 degraded everyone in Human Resources to the new Acting

Chief of Human Resources;

S1 went to Oklahoma City to perform a salary survey for Nurse

Practitioners;

on two occasions, S1 backdated a promotion even though regulations state

a promotion or classification cannot be retroactive;

the person selected for the Chief of Human Resources was a nurse with

no Human Resource experience;

S1 hired the wives of veterans by improperly passing on the veterans'

status to their wives for employment purposes;

S1 improperly hired people under provisional appointments;

S1 counseled him about unspecified complaints regarding his work;

he was ordered to begin the paperwork for the removal of a co-worker

on the grounds that his appointment was illegal and then his efforts

were halted when it was learned that there was nothing wrong with the

appointment;

he was given an admonishment;

he was not selected for the position of Chief of Voluntary Services;

S1 scrutinized his work more closely than she does other employees in

order to find mistakes; and,

S1 suggested that if he did not take an assignment in safety he would

be placed on a performance improvement plan.

In its FAD dated July 27, 2004, the agency dismissed complainant's

complaint because it was formally filed without the benefit of having

first going through the informal process. On appeal, complainant

contends that he did not feel that it was his responsibility to fulfill

the requirement of informal counseling.

EEOC Regulations 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part,

that the agency shall dismiss an entire complaint that raises a matter

that has not been brought to the attention of a Counselor. Based on

the foregoing, the Commission finds that the agency properly dismissed

the complaint because the record contains no evidence that complainant

went through the informal process in regard to any of his claims.

The Commission notes that the agency provided complainant an additional

15 days from the receipt of the FAD in which to contact an EEO counselor.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

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 (S0900)

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. 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

November 18, 2004

__________________

Date