0120131041
06-11-2013
Ramon Garcia, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ramon Garcia,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120131041
Agency No. 200P-0005-2013100020
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 14, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Information Technology Specialist at the Agency's facility in Tucson, Arizona.
On November 5, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior Union activities when:
1. He was subjected to a hostile work environment. In support of his claim of harassment, Complainant alleged that he was threatened with a shift change in order to coerce him into on-call status without on-call pay or to quit his position.
2. Complainant asserted that he was subjected to discriminatory duty hours.
The Agency acknowledged the complaint. Subsequently, the Agency issued its final decision where it redefined Complainant's complaint as a claim of harassment in reprisal for his prior Union activities when:
A. On an unspecified date, the Supervisor was abusive and used coercive tactics to force Complainant to take compensatory time for travel instead of receiving overtime pay;
B. On an unspecified date, the Supervisor attempted to intimidate employees into not appealing a previous position description classification; and
C. On September 25, 2012, the Supervisor threatened Complainant with a shift change in order to coerce Complainant into on-call status without on-call pay or to quit his position.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that the events raised do not appear to demonstrate ongoing egregious or severe behavior that rises to the level of harassment. Further, the Agency noted that Complainant alleged discrimination in reprisal for "prior Union activity." However, Complainant had not indicated that he had engaged in prior EEO activity. As such, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency also noted that Complainant engaged in a union grievance on April 5, 2012. Therefore, to the extent Complainant was challenging the grievance, the Agency found that this claim could also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(4) finding that Complainant had elected to pursue the matter first with the grievance process.
This appeal followed. On appeal, Complainant asserted that he was aggrieved by the Agency's actions.
ANALYSIS AND FINDINGS
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).
Following a review of the record, we find that the Agency's argument that Complainant did not engage in protected EEO activity addresses the merits of Complainant's complaint without a proper investigation as required by the regulations. We note that the Commission has held that a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of his protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The issue regarding whether or not Complainant engaged in protected activity is therefore part of the prima facie determination which is a merits determination. However, whether or not Complainant engaged in protected EEO activity is irrelevant to the procedural issue of whether he has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19. 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Because Complainant has alleged that the Supervisor's actions were in retaliation for engaging in protected EEO activity he has alleged a cognizable claim under Title VII. The evidence in support of this claim, including whether or not Complainant did in fact engage in protected EEO activity, will be developed during the investigation. We also remind the Agency that the Commission has held that participation in the grievance process may be a protected activity, if claims of discrimination are raised therein. See Shively v. Dep't of the Army, EEOC Request No. 05960481 (Dec. 31, 1996).
The Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) because the Agency found that the events raised failed to state a claim of harassment. 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). Here, Complainant has asserted that the Agency subjected him to harassment by denying him overtime pay; intimidating him so that he does not challenge his position classification; and assigning work without the pay that is associated with that assignment. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Therefore, the Agency's dismissal of the complaint of harassment was not appropriate.
The Agency also dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(4). EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination. Upon review of the record, the Agency has failed to provide any evidence to show that the incidents raised in the instant complaint were previously raised in during the grievance process. Therefore, we find that the Agency has not substantiated its final decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's dismissal of the complaint and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 (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
June 11, 2013
__________________
Date
2
0120131041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131041