01A02034
08-15-2002
Earl B. Dean, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Earl B. Dean v. Department of Veterans Affairs
01A02034
August 15, 2002
.
Earl B. Dean,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02034
Agency Nos. 98-3823; 99-4650
DECISION
Complainant filed an appeal on January 8, 2000. It appears from
complainant's appeal that he intended to appeal two agency final
decisions: the agency's December 13, 1999 procedural dismissal of agency
case no. 99-4650 and the agency's December 30, 1999 decision on the merits
finding no discrimination in agency case no. 98-3823. Complainant's
timely appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission affirms the agency's final decisions.
Turning our attention first to agency case no. 99-4650, we note that the
agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7)
for failure to cooperate. In September 1999, when complainant filed
agency case no. 99-4650, he was working as an Equal Employment Opportunity
(EEO) Counselor in the Office of Resolution Management (ORM). The ORM is
responsible for EEO counseling functions and for receiving, investigating,
and processing EEO complaints. The ORM is also responsible for making
determinations as to the procedural acceptability of an EEO complaint.
The Office of Employment Discrimination Complaint Adjudication (OEDCA),
whose Director reports exclusively to either the Secretary or Deputy
Secretary of the agency, is responsible for making the final agency
decisions on the merits of all EEO complaints that are accepted for
investigation. To avoid a conflict of interest, when an ORM employee
files an EEO complaint, the complaint is transferred to the OEDCA for
a determination as to its procedural acceptability.
Accordingly, agency case no. 99-4650 was transferred to the OEDCA.
After providing complainant with two opportunities to provide sufficient
information to clarify the bases and claims set forth in his complaint
and receiving one response wherein complainant stated that the OEDCA's
involvement posed a conflict of interest and that he wanted a final
agency decision based on the information he provided, the agency issued
a final decision dismissing the complaint for failure to cooperate.
On appeal, complainant contends that neither he nor his witnesses were
interviewed by the agency, that there is widespread fear of retaliation,
and that he wanted his complaint investigated by a non-agency associated
investigator because he could not trust the agency to investigate itself.
Complainant also submitted letters he wrote to the Chairman of the United
States House of Representative' Committee on Veterans' Affairs, a claim
for workers' compensation benefits, a letter from a licensed social
worker stating that complainant was under great stress, a copy of his
formal EEO complaint demanding, inter alia, an all moving expenses paid
transfer to a Dallas, Texas facility, letters to an ORM EEO counselor
in New Jersey, and copies of e-mails entitled �instructions for life.�
Upon review, we find that the agency's dismissal of agency case
no. 99-4650 was proper. The regulations at 29 C.F.R. Part 1614 require
that investigation of complaints shall be conducted by the agency against
which the complaint has been filed. 29 C.F.R. � 1614.108(a). We find
that complainant, who worked as an EEO Counselor, knew or should have
known that he had to provide sufficient specific information in his formal
complaint to enable the agency to identify and investigate the issues.
Instead, complainant listed:
a. Assignment of Duties 15 March 98 to present.
b. Duty Hours 3 June 1998 to present.
c. Failure to Promote 15 March 1998 to present.
d. Harassment 15 March 1998 to present.
e. Reassignment 3 June 1998 to present.
f. Sexual Harassment 15 March 1998 to present.
g. Training 15 March 1998 to present.
h. Working Conditions 15 March 1998 to present.
When asked by OEDCA to provide specific incidents or examples of his
claims, complainant refused and requested a final agency decision because
he believed there was �a conflict of interest.� In light of the fact
that: (1) complainant's complaint was transferred to the OEDCA in order to
avoid any conflict of interest which might have presented in the ORM; (2)
complainant has failed to set forth any substantive evidence in support
of his belief that the OEDCA's processing of his complaint would deprive
him of his rights under 29 C.F.R. Part 1614; and (3) complainant was given
notice that his failure to cooperate could result in the dismissal of his
complaint, we decline to excuse complainant's refusal to cooperate with
the agency's two requests that he provide sufficient relevant information.
The agency's dismissal of agency case no. 99-4650 is therefore affirmed.
Turning to agency case no. 98-3823, complainant, who was then employed
as Chief of Food and Production Service at the agency's Medical Center
in Philadelphia, Pennsylvania, alleged that he was discriminated against
on the bases of race and color (Black), sex (male), age (DOB: 2/9/1948),
and in reprisal for prior protected activity when he was admonished;
harassed, both sexually and non-sexually; denied training; reassigned; and
when some of his duties were transferred to an Administrative Dietician.
The Commission notes that during the investigation of this complaint,
the investigator asked complainant to provide a preliminary affidavit.
Complainant's response to all of the questions was to say that he
had already provided an answer and that the resolution to the complaint
required the agency transferring him to Texas. In an effort to acquire a
written affidavit from complainant, the investigator taped a conversation
and had the conversation transcribed. Complainant refused to sign the
transcript. However, under oath and in response to the investigator's
questions about the admonishment, the assignment of duties, the
harassment, both sexual and nonsexual, the denial of training, and the
reassignment, complainant's response was �I can't recall.�
Upon review of the record, we find that complainant has failed to rebut
the agency's non-discriminatory explanations for its actions as set
forth in the final agency decision. Because complainant has failed to
meet his burden of proving by a preponderance of the evidence that any
form of discrimination occurred, we affirm the agency's finding of no
discrimination in agency case no. 98-3823.
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
August 15, 2002
__________________
Date