0120101181
06-10-2010
Esau Foster, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Esau Foster,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101181
Agency No. 200H06932009103588
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 14, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In his complaint, complainant, an EEO Manager, alleged that he was
subjected to discrimination on the bases of race/sex (African-American
male), age (over 40), and reprisal for prior protected EEO activity when:
1. on February 19, 2009, in response to an EEO contact by an employee
who contended that that she was required to work a different tour
or take leave without pay because she was accused of patient abuse,
complainant met with the employee's first and second line supervisors.
An Employee Relations Specialist (ERS) appeared, and when complainant
stated the ERS was not requested, the second line supervisor indicated
that she made the request;
2. on February 25, 2009, at 2 PM, in response to an allegation of
discrimination by an African-American patient, complainant met with
the nurse manager and a higher level medical manager. When complainant
saw the ERS there, he objected, and the upper medical manager said she
requested the ERS. Complainant cancelled the meeting; and
3. on February 25, 2009, at 3 PM, in relation to an EEO issue,
complainant met a nurse manager and the above upper level manager.
The ERS appeared at the meeting. When complainant objected, the upper
level manager indicated that she requested the ERS. Complainant cancelled
the meeting.
Complainant contended that he was discriminated against when management
secured the presence of the ERS at the meetings, and that the ERS was
not necessary because the meetings involved EEO issues, not employee
relations matters.
The agency dismissed the complaint for failure to state a claim.
It reasoned that complainant was not harmed. The agency also dismissed
the complaint for failure to timely initiate EEO contact. It reasoned
that the discrimination occurred on February 25, 2009, and complainant
initiated EEO contact on June 9, 2009, beyond the 45 calendar day time
limit to do so.1
On appeal, complainant argues that he was harmed because an ERS at
such meetings interferes with his ability to carry out his function
as EEO manager. He argues that he delayed initiating EEO counseling
pursuant to a settlement agreement. The record contains an excerpt of
a settlement agreement which provides, in part:
...both parties understand and agree that the complainant, as the EEO
Program Manager at the Wilkes-Barre VAMC, occupies an important leadership
position at the facility and serves in an advisory role to the Director
and management. Accordingly, complainant agrees that he will first
bring to the attention of the appropriate management official any and all
issues relating to the operation of the EEO Program at the Wilkes-Barre
VAMC and allow the VAMC leadership the opportunity to address the issue
in a direct and timely matter.
Complainant contends that he brought his issues before the appropriate
management official, and received a reply on April 27, 2009, which did not
address his concerns. He writes that he elevated the matter on May 15,
2009, and the agency's reply dated June 1, 2009, again did not address
the issues. In opposition to the appeal, the agency argues that its
final decision should be affirmed.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). This time limit shall be extended
when for reasons considered sufficient by the agency or Commission.
29 C.F.R. � 1614.105(a)(2).
Here, complainant contends that he delayed initiating EEO contact pursuant
to his settlement agreement. We find that the settlement agreement
does not excuse the delay. While complainant agreed to first bring to
the attention of the appropriate management official any and all issues
relating to the operation of the EEO Program at the Wilkes-Barre VAMC and
allow the VAMC leadership the opportunity to address the issue in a direct
and timely matter, this does not excuse waiting until the 45 calendar time
limit to initiate EEO counseling has passed. Here, complainant waited
over three months before initiating contact with an EEO counselor.
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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 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.
Complainant's complaint fails to state a claim. He met with management
officials, in his capacity of EEO Manager, who were presumably involved or
responsible for units that had been accused of discrimination by others.
It is undisputed that these management officials invited the ERS to
the meetings, presumably to advise them of their rights. We note that
employee relations and EEO issues often intersect. Complainant has not
alleged facts that, if proven true, would show that he was harmed by
the ERS presence or that the presence of the ERS interfered with the
accomplishment of his EEO duties.
Accordingly, the final agency decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 10, 2010
__________________
Date
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office
of Federal Operations Catherine McNamara, Acting Dir.,
Appellate Review Program FROM: Todd Denicoff, Attorney 6/9/10
Mary Jean Secoolish, Supervisor Catherine McNamara,
Division Director Appeal Number(s) 0120101181 Agency Number(s)
200H06932009103588 Hearing Number(s) Complainant(s): Esau Foster
Agency: VA Decision: Affirm Statute(s) Alleged Title VII and ADEA
Basis(es) Alleged Entered into IMS Issue(s) Alleged Entered into IMS
(Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural
Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits
decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
In part and reversed in part, then (3L)
Code required if at least one issue is
remanded) ? 3L - OFO remanded PART of the agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 6/22/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Esau Foster VA 0120101181
OPEN CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken None
CLOSED CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken 01902257 2x No
Affirmed finding of no discrimination 01902907 2x No Reversed procedural
dismissal 05910248 2x No Denied request on 01902907
CLASS ACTION CASES
Appeal No. IMS Status Related (Yes/No) Actions Taken
Todd Denicoff 6/9/10
Attorney Date
1 The final agency decision described the discrimination as occurring
on February 25, 2009. In opposition to the appeal, the agency concedes
that complainant alleged one incident on February 19, 2009, and two on
February 25, 2009. The final agency decision did not capture the bases
of race, sex, and age, but complainant raised them on his complaint form
or in the narrative of his complaint.
??
??
??
??
2
0120101181
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101181
6
0120101181