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