0120141127
07-18-2014
Complainant, v. Sloan D. Gibson, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
Complainant,
v.
Sloan D. Gibson,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120141127
Agency No. 200P-0691-2013104119
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 4, 2014, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Physician, Research, at the Agency's Medical Center in Los Angeles, California.
On August 8, 2013, Complainant initiated contact with an EEO Counselor. According to the EEO counselor's report, Complainant explained that he was initially recruited by the University of California at Los Angeles (UCLA) to develop a research program and placed as an employee of the Agency, with UCLA paying 25% of his salary. However, he asserted that in 2004, UCLA stopped paying any portion of his salary. Nonetheless, he asserted that UCLA took credit for his work, including obtaining a patent, and did not give him any share of the money he raised for research.
On September 10, 2013, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on national origin (East Indian) and reprisal when:
1. since 2004 to the present, he suffered "theft of intellectual property" and less salary and support;
2. since 2011 to the present, he suffered reprisal for discussing fiscal and research issues with the Office of the Inspector General;
3. since April 2012, he was locked out of his laboratory and not given personnel or equipment to conduct his research; and
4. on July 1, 2013, he was subjected to a disciplinary suspension.1
On January 4, 2014, the Agency issued a final decision dismissing the complaint for untimely EEO contact. The Agency reasoned that Complainant sought redress of his employment disputes in 2010, and loss of his staff and work space in 2011-12, but he did not raise these matters in the EEO arena until August 8, 2013. Further, the Agency found that Agency records reflect that Complainant was provided with training regarding the EEO process, but failed to make timely EEO Counselor contact. The Agency decision did not mention that the triggering event for the August 8, 2013 contact was the July 1, 2013 suspension.
Next, the Agency dismissed his claims against the Agency on an alternative basis, for failure to state a claim. The Agency reasoned that Complainant's formal complaint and narrative statement contain references to employment disputes directed against UCLA, and not the Agency. The Agency concluded "the VA does not have the authority to address claims of discrimination against our affiliate universities." Therefore, any and all claims raised in the instant case regarding UCLA are hereby alternatively dismissed for failure to state a claim. The Agency decision in this regard did not reference Complainant's allegations that the Agency locked him out of his laboratory and suspended him on July 1, 2013.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity 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, in dismissing on timeliness grounds, failed to address Complainant's claim regarding the July 1, 2013 suspension. Complainant's August 8, 2013 contact with an EEO counselor, where he raised the suspension, was clearly made within the 45-day limitation
period. Therefore, claim 4 concerning the suspension should have been accepted as timely raised.
Complainant has also, in essence, raised a claim of an ongoing discriminatory hostile work environment, claiming that he has been shut out of his laboratory, as well as denied personnel, equipment and financial support to conduct his research. In a response for information requested by the EEO counselor, Complainant wrote that "there has been a persistent, relentless and increasingly aggressive/egregious attack on [his] livelihood [and] character. . ." Complainant appears to assert that this started at least as early as April 2012 and culminated with his suspension.
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, 536 U.S. 101 (June 10, 2002). Since we have concluded that Complainant's EEO counselor contact on August 8, 2013 was timely with regard to the claimed July 1, 2013 suspension, this contact rendered his ongoing hostile work environment claim concerning being locked out of his laboratory and being denied the resources necessary to conduct research (claims 2 and 3) also timely.
Failure to State a Claim
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).
The record establishes that although originally recruited by UCLA, Complainant is an Agency employee. To the extent in claim 1 that Complainant is complaining about the actions of UCLA in discontinuing his salary subsidy in 2004, taking credit for his work (including obtaining a patent), and failing to provide financial support for his research, the Agency has correctly dismissed for failure to state a claim. While these events impacted Complainant's work life, he has not established that they were the actions of the Agency or resulted from his employee-employer relationship with the Agency. Moreover, these events seem to have occurred in 2004, nine years before Complainant sought EEO counseling. Accordingly, the Agency's dismissal of these allegations was correct.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint, now defined as concerning the July 2013 suspension and an ongoing hostile work environment (suspension, locked out of laboratory, denied personnel, equipment and financial support for research by the Agency) to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. 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 tends 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
July 18. 2014
__________________
Date
1 Based on a fair reading of the complaint form in conjunction with the EEO counseling report, we have identified the four claims that comprise Complainant's complaint.
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0120141127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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