0120112339
02-09-2012
David Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David Johnson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112339
Agency No. 200H-0642-2011100126
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 3, 2011, 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.
Upon review, the Commission finds that Complainant's complaint was
improperly dismissed for failure to state a claim and for untimely EEO
counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Food Service Worker at the Agency’s Medical Center in Philadelphia,
Pennsylvania. On November 19, 2010, Complainant filed an EEO complaint
alleging that the Agency subjected him to a hostile work environment in
reprisal for prior protected EEO activity when:
1. On August 11, 2010, Complainant received a written counseling; and
2. On October 6 and 14, 2010, Complainant was nit-picked by his
supervisor.
The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2)
for untimely EEO Counselor contact. The Agency determined that the
alleged discriminatory incident occurred on August 11, 2010, but
Complainant did not contact an EEO counselor until October 7, 2010,
12 days beyond the limitation period. The Agency dismissed claim (2)
pursuant to 29 C.F.R. § 1614.107(a)(1) for failing to state acclaim.
The Agency found that the conduct alleged was not sufficiently severe
or pervasive to rise to the level of a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his supervisor has harassed him
since he arrived a year ago. Complainant argues that the Agency’s
dismissal was unfair and he has clearly shown that he has been subjected
to harassment. Accordingly, Complainant requests that the Commission
reverse the Agency’s dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Agency dismissed claim
(1) as untimely as it occurred 12 days beyond the limitation period.
However, the Supreme Court has held that a complainant alleging a hostile
work environment will not be time barred if all acts constituting the
claim are part of the same unlawful practice and at least one act falls
within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). In this case, Complainant has asserted
that all his allegations were part of an ongoing hostile work environment
claim involving the same management officials. Accordingly, while
the Commission finds that the Agency’s dismissal of claim (1) as a
discrete act was not in error; the claim must be analyzed as part of
Complainant’s claim of harassment.
In addition, the Commission finds that when considering Complainant's
complaint as a whole, the alleged actions may be sufficiently severe to
constitute a retaliatory hostile work environment. The record reveals
that an example of the alleged “nitpicking” conduct includes a letter
of admonishment Complainant received following the counseling letter.
The Commission notes that the Commission has a policy of considering
reprisal claims with a broad view of coverage. See Carroll v. Dep't of
the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not
restricted to those which affect a term or condition of employment.
Rather, a complainant is protected from any discrimination that is
reasonably likely to deter protected activity. See EEOC Compliance Manual
Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see
also Carroll, supra. We find that receipt of a letter of admonishment is
the kind of incident reasonably likely to deter an employee from engaging
in EEO activity. It was therefore improper for the Agency to dismiss
the Complainant’s retaliatory harassment claim for failure to state
a claim. Accordingly, the Commission REVERSES the Agency's dismissal
of Complainant's complaint and REMANDS this matter to the Agency for
further processing consistent with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded retaliatory harassment
claim in accordance with 29 C.F.R. § 1614.108. The Agency shall
acknowledge to the Complainant that it has received the remanded claim
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 (Nov. 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
February 9, 2012
Date
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0120112339
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120112339