0120131599
08-21-2013
James Metcalfe, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs (National Cemetary Administration), Agency.
James Metcalfe,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
(National Cemetary Administration),
Agency.
Appeal No. 0120131599
Agency No. 200H-0813-2012104346
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 5, 2013, 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 Cemetery Administrator at the Agency's Indiantown Gap National Cemetery facility in Annville, Pennsylvania.
On August 15, 2012, Complainant contacted the EEO Counselor regarding his claim of discrimination. Complainant was issued a Notice of Right to File his formal complaint on November 2, 2012. He received the Notice on November 5, 2012. The Notice indicated that Complainant had 15 calendar days to file his formal complaint. On November 19, 2012, Complainant contacted the EEO Counselor noting that he and the Agency had extended the informal process of his case in order to try to mediate the matter. His understanding of the conversation that lasted over an hour was that the EEO Counselor would adjust the timeframes for the submission of the formal complaint.
On November 28, 2012, Complainant mailed a letter and his formal complaint to the Agency. In the cover letter accompanying the formal complaint, Complainant indicated that he was unsure of the timeliness of the formal complaint based on his conversation with the EEO Counselor. He also indicated that the offices had been closed for some time due to Hurricane Sandy. As such, he submitted his formal complaint on November 28, 2012, which was received by the Agency on November 29, 2012.
On November 21, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Native American), disability, marital status, and reprisal when: the Under Secretary of Memorial Affairs created and posted a GS-14 position for only five days so that he could fill the position with the Selectee.
In addition to the position, Complainant added a list of ten items he listed as "claims" including:
1. Denied Promotion
2. Denied Equity of access to job and promotion and other opportunities;
3. Denied Fair & Equitable treatment - biased personnel decisions on favoritism & personal relationships - inappropriate influenced HR decisions;
4. Denied Equal pay, unequal wages for like/similar work, job and position description
5. Denied reclassification of PD & Grade and reinstate to a once held higher grade
6. Retaliation and Harassment;
7. Created and Maintained a Hostile Work Environment;
8. Disparate treatment in the conditions of employment;
9. Unequal terms and condition of employment;
10. Intentional Infliction of emotional distress.
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(2) for failing to file the formal complaint within 15 days of the date Complainant received the Notice. The Agency also dismissed the basis of marital status pursuant to 29 C.F.R. � 1614.107(a)(1) noting that it is not a protected basis.
The Agency determined that Complainant contacted the EEO counselor regarding the promotion position. The other "claims" namely claims (4) - (10) were not raised with the EEO Counselor nor are they like or related to the promotion decision. As such, the Agency dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(2).
Finally, the Agency turned to Complainant's claim of retaliation and hostile work environment. The Agency found that Complainant failed to provide sufficient support to state a claim of harassment and/or retaliatory harassment. As such, the Agency dismissed the claim of hostile work environment.
This appeal followed.
ANALYSIS AND FINDINGS
Marital Status
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We note that the basis of marital status is not protected within Title VII. Accordingly, we find that the Agency's dismissal of this basis was appropriate.
Untimely Formal Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Here Complainant indicated that he was under the impression that he would have more time to complete mediation with the Agency before he would be required to file his formal complaint. The Commission has previously held that an Agency may not dismiss a complaint based on Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming the Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if Agency officials misled Complainant into waiting to initiate EEO counseling, Agency must extend time limit for contacting EEO Counselor). Therefore, we find that the dismissal of the complaint as a whole was not appropriate.
New Claims
In Complainant's formal complaint, Complainant alleged he was subjected to discrimination with respect to the Agency's position of a position for five days. In support of his claim, Complainant indicated that the Agency denied him the position, the equal access to the position; and fair and equitable treatment pertaining to personnel decisions. We find that these were provided in support of his claim of discrimination when he was not selected for the position in question. As such, we determine that the claims listed as (1) - (3) are all part of Complainant's single claim of denial of promotion.
As to the remaining claims listed by Complainant, namely, claims (4), (5), (7), (8), (9), and (10), we find that these "events" are new and are unlike or unrelated to matters for which he sought EEO counseling. EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss a complaint, or a portion thereof, that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor. As such, we find that the Agency properly dismissed claims (4), (5), (7), (8), (9), and (10).
Failure to State a Claim of Harassment
In claim (6) as stated by Complainant, he alleged that he was subjected to "Retaliation and Harassment." Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). We find that Complainant merely asserted, without support, that he was subjected to harassment. We determine that this is not sufficient to state a claim of a hostile work environment. As such, we affirm the dismissal of claim (6).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final decision. We AFFIRM the dismissal of claims (4) - (10) as listed by Complainant and the basis of marital status. However, we consolidate issues (1) - (3) as stated by Complainant and consolidate it into one claim of denial of promotion based on race, disability, and reprisal and REVERSE the Agency's dismissal of this claim and REMAND this claim for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim, namely consolidated claim (1), in accordance with 29 C.F.R. � 1614.108. 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 (T0610)
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 (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
August 21, 2013
__________________
Date
2
0120131599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131599