01a54811
12-29-2005
Ralph E. Miller, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ralph E. Miller v. Department of Veterans Affairs
01A54811
December 29, 2005
.
Ralph E. Miller,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A54811
Agency No. 200H-0808-2005101146
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 9, 2005, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to harassment on the basis of disability (Hepatitis C) when:
on numerous occasions from October 2002 through July 2003, his supervisor
(S1) referred to complainant as a "moron";
in December 2002, S1 kicked complainant's broken foot;
in September 2004, S1 failed to have the damaged carpet in and outside
complainant's office replaced and ordered complainant to instead see
his clients in other offices;
in December 2004, the Deputy Regional Manager (M1) told complainant that
he could be fired for not completing progress notes in a timely manner;
from December 2004, through February 16, 2005, S1 was hostile about
complainant's progress toward retirement being too slow;
on January 20, 2005, complainant was verbally harassed by S1 when he
requested sick leave for a medical appointment;
on January 25, 2005, S1 told complainant to file for disability
retirement;
in January 2005, after informing S1 that the lights in his office weren't
working, S1 turned the lights off and suggested that complainant "just
leave them off";
on February 7, 2005, when complainant asked S1 if he could leave earlier
than planned to meet with an employee assistance program (EAP) counselor,
S1 stated "we can't be doing this";
on February 9, 2005, after asking for a copy of complainant's schedule,
which complainant had already provided to S1, S1 stated "just because
you ask for time off does not mean I have to give it to you"; and
on April 1, 2005, during a meeting with S1, S1 stated that: (a)
complainant could not work limited duty; (b) if complainant returned
to work S1 would "necessarily have to be confrontational" with him; and
(c) any time away from the office, whether for work or related medical
services or anything else, would require approved sick or annual leave.
The agency dismissed the instant complaint, pursuant to 29 C.F.R. �
1614.107(a)(2), for failure to timely file a formal complaint. The record
shows that complainant was issued a Notice of Right to File a Formal
Complaint on February 22, 2005, which stated that complaint had fifteen
days after receipt of the notice to file his complaint. The record also
reflects that complainant did not file a formal complaint until May 3,
2005. Complainant contends that his mental and physical disabilities
prevented him from being able to file his formal complaint in a timely
manner.
When a complainant claims that a mental condition prevents him from
meeting a particular filing deadline, the Commission has held consistently
that in order to justify an untimely filing, the complainant must be so
incapacitated by the condition as to render him psychologically unable
to make a timely filing. See Crear v. United States Postal Service,
EEOC Request No. 05920700 (Oct. 29, 1992). The same is true regarding
claims of incapacity related to physical conditions. See Zelmer v. United
States Postal Service, EEOC Request No. 05890164 (Mar. 8, 1989). Here,
we find that the record shows that during the relevant time period,
complainant was physically and mentally incapacitated to the point
that he was forced to stop working. Complainant also provided medical
documentation from his doctor that states that due to complainant's post
traumatic stress disorder and chronic depression, which was exacerbated
by an on-the-job-injury sustained in February 2005 for which he was
prescribed morphine, complainant was rendered unable to file his formal
complaint. We find that complainant has provided sufficient evidence
of his incapacity to justify tolling the time limitations. Therefore,
we find that an extension of the filing period is warranted in this case
and the formal complaint is timely.
In its final agency decision, the agency also dismissed claims
(1)-(3), for untimely EEO counselor contact, pursuant to 29 C.F.R. �
1614.107(a)(2). We concur with the agency's dismissal of these claims.
The regulations state that an aggrieved person must initiate contact with
an EEO Counselor within 45 days of the alleged discriminatory event.
Here, complainant did not initiate counseling until January 20, 2005,
which was beyond the time limitation for these claims, and he has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact. Therefore,
we affirm the agency's dismissal of claims (1)-(3).
With respect to the remaining claims, the agency dismissed complainant's
claim of discriminatory harassment in its entirety for failure to state a
claim under 29 C.F.R. � 1614.107(a)(1). Specifically, the agency found
that complainant failed to show that he suffered an adverse employment
action, or that the incidents alleged are not sufficiently severe or
pervasive to establish a claim of harassment. We find that the agency
erred in dismissing claims (4)-(11). In determining whether a harassment
complaint states a claim in cases where a complainant had not alleged
disparate treatment regarding a specific term, condition, or privilege of
employment, the Commission has repeatedly examined whether a complainant's
harassment claims, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Administration,
EEOC Request No. 05970388 (February 26, 1999). We find that claims
(4)-(11) allege a pattern of conduct by agency management that, if taken
as true, are sufficiently severe and pervasive to establish a hostile
work environment under the Rehabilitation Act.
Accordingly, we affirm the agency's dismissal of claims (1)-(3), and
reverse the dismissal of claims (4)-(11), and remand them to the agency
for further processing in accordance with this decision and the order
below.
ORDER (E0900)
The agency is ordered to process the claims (4)-(11) 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 (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. 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 (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
December 29, 2005
__________________
Date