01a02590
07-11-2000
Eric G. Ravn, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Eric G. Ravn v. Department of Veterans Affairs
01A02590
July 11, 2000
Eric G. Ravn, )
Complainant, )
)
v. ) Appeal No. 01A02590
) Agency No. 99-3931
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 18, 2000, 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.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Caucasian) and in retaliation for prior protected activity when:
On July 16, 1999, complainant was not selected for the position of
Program Management Officer (Chief, Protective Service - MPA No. 99(50));
and
Complainant was subjected to harassment.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant provided no information
concerning his harassment claim. The agency also found that complainant
failed to apply for Vacancy No. 99(50), and therefore suffered no
cognizable injury from not being selected. The agency noted that it
imposed no restrictions to preclude complainant from applying.
On appeal, complainant argues that he supported his harassment
claim with a report of contact concerning his supervisor's conduct,
a memo concerning the supervisor's actions at a resource meeting, and
correspondence sent to the medical director concerning the supervisor's
behavior towards complainant. Complainant admits that he failed to apply
for Vacancy No. 99(50), but claims his application would be futile since
he was found unqualified for a similar position, Vacancy No. 98(46).
Complainant explains that he was found unqualified for Vacancy 98(46)
because he lacked a general knowledge of law enforcement. According to
complainant, Vacancy 98(46) involved the same title, position description,
series, grade, and promotion potential as Vacancy 99(50). Complainant
also notes that the ratings criteria for the positions was identical,
except that Vacancy 98(46) required a knowledge of firefighting, but
Vacancy 99(50) did not. Complainant contends that the ratings criteria
was changed to allow the eventual selectee, an African-American co-worker,
to be found qualified for the position.
In response, the agency stresses that complainant never applied for
Vacancy 99(50), and never filed a complaint, or even considered contacting
a counselor, concerning Vacancy 98(46),. The agency also argues that
the harassment claim involved the selection for Vacancy 99(50), not some
other activity. The agency notes that complainant's formal complaint
dates the harassment as occurring July 16, 1999, the same date as the
non-selection. Therefore, the agency contends that the harassment claim
must involve the selection for Vacancy 99(50), and not some other event.
The EEO Counselor found that no applicant was found qualified under
Vacancy 98(46); the agency altered the selection criteria, and then
re-advertised the position as Vacancy 99(50). Complainant informed
the counselor that the selection criteria were changed to favor the
African-American applicant, but were not changed to favor complainant.
In his formal complaint, dated September 20, 1999, complainant
checked-the-boxes for �failure to promote� and �harassment.� He claimed
both issues occurred on July 16, 1999, without further elaboration.
The record includes a copy of the Incident Report, dated November 17,
1998, and a Report of Contact, dated October 8, 1998, concerning an
October 8, 1998 altercation between complainant and his supervisor.
The supervisor questioned complainant about his decision to stop
work because of a lack of eye protection. According to complainant,
the supervisor yelled, cursed, pointed his finger at complainant, and
walked around his desk into complainant's personal space. The record
also contains a memorandum from complainant to the facility director,
dated May 3, 1999, concerning his supervisor's decision to address
overtime in a �public forum� meeting, and embarrass complainant by
stating that complainant could not authorize overtime.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission finds that the agency properly interpreted complainant's
�harassment� claim. Complainant addressed issues of harassment with the
EEO Counselor, and provided support for incidents occurring in October
1998 and May 1999. Complainant's reference to harassment in his formal
complaint, however, was dated July 16, 1999, the date he discovered the
selection for Vacancy 99(50). Clearly, complainant was referring to
the selection made for Vacancy 99(50), not to some other incidents of
harassment.
Generally, a claim of discriminatory non-selection fails to state a
claim where the complainant failed to apply for the position. See Owen
v. Social Security Administration, EEOC Request No. 05950865 (December
11, 1997). A complainant is aggrieved by such claims when he proves
that the agency discouraged him from applying, or that the application
process was secretive. See Ozinga v. Department of Veterans Affairs,
EEOC Request No. 05910416 (May 13, 1991).
In the present case, complainant has not shown the extreme circumstances
necessary to justify his failure to apply for the position. Failure
to apply based on previous rejections does not show that the agency
discouraged complainant from applying. See Koch v. Securities and
Exchange Commission, EEOC Request No. 05980240 (November 4, 1999)
(claimant failed to apply for re-posted position, and failed to prove any
harm suffered when not selected). Accordingly, the agency's dismissal
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 11, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.