01976393
03-03-2000
Jeffrey L. Puttkammer, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Jeffrey L. Puttkammer v. Department of Veterans Affairs
01976393
March 3, 2000
Jeffrey L. Puttkammer, )
Complainant, )
) Appeal No. 01976393
v. ) Agency No. P-676-14
) Hearing No. 260-97-9064X
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
______________________________)
DECISION
Jeffrey L. Puttkammer (hereinafter "complainant") filed a timely
appeal from a final agency decision concerning his equal employment
opportunity (EEO) class and individual complaint of unlawful employment
discrimination on the basis of sex (female), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges that female nurses were discriminated against as a
class when they were denied wage increases in 1997 when compared to the
male dominated professions, such as physicians and dentists which were
given wage increases. The appeal is accepted in accordance with EEOC
Order No. 960.001. For the following reasons, the agency's decision
is AFFIRMED.
The record reveals that complainant, a registered nurse at the agency's
Medical Center in Tomah, Wisconsin, filed a class complaint with
the agency on or about February 7, 1997, alleging that the agency had
discriminated against him as referenced above. Pursuant to 29 C.F.R. �
1614.204(d) the agency forwarded the class complaint to the Equal
Employment Opportunity Commission for assignment to an Administrative
Judge (AJ). The AJ issued a Recommended Decision dismissing the class
complaint because the complainant failed to meet the prerequisites of
typicality and adequacy of representation under 29 C.F.R. �1614.204(d)(2).
The AJ concluded that complainant, a male registered nurse, did not suffer
the same injury as the members of the class, and had no nexus with the
class of female registered nurses such that he could be class agent.
She also concluded that complainant would not be able to adequately
represent the class because he was not an attorney.
The agency's final decision adopted the AJ's recommended decision, and
also dismissed complainant's individual complaint because it failed to
state a claim, reasoning that a male complainant could not state a claim
of discrimination against females.
On appeal, complainant contends that his claim is typical of the class
because he is a minority among a minority and that the class complaint
should be certified and decided on its merits.
Analysis
Under the Commission's regulations, class complaints must satisfy the
four requirements of numerosity, commonality, typicality and adequacy
of representation. 29 C.F.R. �1614.204(a)(2). The failure of a
complainant to meet any one of these four criteria is sufficient reason
for dismissal. Id. �1614.204(d)(4); Mastren v. U.S. Postal Service,
EEOC Request No.05930253 (October 27, 1993).
Applying these criteria, we agree with the conclusions of the
administrative judge that the complainant, a male nurse, does not hold
a typical claim of the class of female nurses and therefore, is not
qualified to represent the class in a sex discrimination complaint.
Furthermore, although not specifically addressed by the AJ, we also
conclude that the complainant does not satisfy the requirement of
commonality for the same reason he does not have a typical claim of
the class. That is, he alleges that nurses are discriminated against
in wage-setting decisions because they are largely females. Because the
complainant is male, he necessarily does not suffer from a common thread
of discrimination as the female class members. Conanan v. FDIC, EEOC
Appeal No. 01952486 (January 13, 1998).
We also conclude that the complainant fails to state a claim of
discrimination. Our regulations require the dismissal of a complaint
that fails to state a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy. 64
Fed. Reg. 37644, 37656 (1999) to be codified at 29 C.F.R.�1614. 107(a)(1);
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
22, 1994). In this case, the complainant states that female nurses are
discriminated against in their pay when compared to the male dominated
professions of physicians, dentists and physicians' assistants.
We cannot conclude that the complainant is aggrieved when compared to
employees in other professions whose job duties and responsibilities
are different and whose training, educational backgrounds and licensing
requirements are not the same.
CONCLUSION
For the reasons outlined above, we conclude that the complainant failed to
satisfy the requirements for bringing a class complaint and he failed to
state a claim of discrimination. We therefore, AFFIRM the agency's final
decision to dismiss both the class complaint and the individual complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 3, 2000
______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
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:
__________________________
Equal Employment Assistant
__________________________
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.