0120160321
03-09-2016
Kenny C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kenny C.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160321
Agency No. 200H06322015102480
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated September 9, 2015, 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 had retired from his position as a Vascular and Thoracic Surgeon at the Agency's Northport Medical Center facility in Northport, New York and was working in private medical practice in California. On July 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Lebanese) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. The Chief of Surgical Service, (CSS) created a hostile work environment at the facility when he bullied and physically abused medical residents during surgery if they were not performing up to his standards;
2. After Complainant reported the above conduct to the Agency's Office of Inspector General he was subjected to retaliation by CSS; and
3. On February 2, 2015, Complainant became aware that CSS reported false, derogatory, and malicious information about Complainant to Complainant's prospective employer (PE).
The Agency dismissed Claims 1 and 2 for failure to state a claim and Claim 3 for untimely EEO Counselor contact. Specifically, the Agency found that with regard to Claim 1, Complainant was not aggrieved because he was addressing alleged harm caused to others but did not allege any harm caused to himself. With regard to Claim 2, the Agency found that Complainant was alleging retaliation for whistleblowing, which is outside of the purview of Title VII and the EEOC's jurisdiction. With regard to Claim 3, the Agency found that Complainant should have developed a reasonable suspicion about the alleged discriminatory behavior by October 20, 2014 but did not contact an EEO Counselor until March 19, 2015.
ANALYSIS AND FINDINGS
On appeal Complainant does not address the dismissal of Claims 1 & 2. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We note that with regard to Claim 1, Complainant does not allege that he incurred any harm from the Agency's actions, only that others incurred harm. With regard to Claim 2, Complainant does not allege that the bullying and physical abuse that he witnessed was discriminatory or based on any protected basis recognized by the EEOC's regulations. Accordingly, his reporting of such activity to the Agency's Office of Inspector General does not amount to "engaging in protected EEO activity" and any retaliation he may have incurred therefrom does not come under the purview of Title VII or any other of our regulations. Accordingly we find that these Claims were properly dismissed.
With regard to Claim 3, we note that EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
The Agency found the Complainant should have developed reasonable suspicion on October 20, 2014, when PE sent Complainant a rejection letter stating that they had:
Received information from [the facility] that [Complainant] was not eligible for rehire, that [Complainant] had problems with staff interactions at [the facility], and that his peers expressed concerns over practice matters. [Complainant] provided a response to [PE]'s concerns via a letter dated November 19, 2014, whereby he rebutted these allegations.
FAD, p. 3.
The Agency further found:
Despite the fact that the initial October 2014 letter did not specify [CSS] by name as the VA reporting official and that this was specified in the February 2015, letter, we have determined that [you] had reasonable suspicion as early as October 2014 that VA officials, i.e., [your] ex-chief, had made the statement that [you were] ineligible for rehire.
Id. p. 4.
The Agency therefore concluded that Complainant should have developed reasonable suspicion by October 20, 2014 making his March 19, 2015 EEO Counselor contact untimely.
On appeal, Complainant argues that the Agency is mistaken in its analysis. Complainant argues that the Agency essentially engaged in two separate acts of discrimination, the first prior to October 2014, which resulted in the October rejection letter, and the second at some later date after Complainant's November 19, 2014 reply to PE's October rejection letter. The record shows that, following Complainant's November response to PE's October rejection letter, PE sent Complainant a second letter, dated February 2, 2015, which "referenced and reiterated the previous letter of October 20, 2014, and raised additional problematic concerns specifically provided by [CSS]." FAD, p. 3. Complainant maintains that it is this second act of discrimination, by CSS, that is the subject matter of his complaint. Complainant argues:
The factual record reveals that sometime between November 19, 2015 and February 2, 2015, in response to [Complainant's] November 19, 2015 letter, [PE]'s Credentials Committee re-contacted [the Agency] to verify [Complainant's Agency] employment record. On this discrete occasion, [CSS] again disparaged and told false statements about [Complainant]. [Complainant] did not reasonably suspect he had been disparaged by [CSS] a second lime until February 2, 2015, when in a letter from [PE] he was informed that [CSS] had been interviewed twice and that there were additional bad reports about [Complainant's] surgical judgment given by [CSS]. It was based on this second discrete act of discrimination and retaliation that [Complainant] chose to contact an EEO counselor, which he did on March 19, 2015, the 45th day after receiving the February 2, 2015 letter.
Complainant's Appeal Brief, pp. 7-8.
Complainant's argument is consistent with what he said in his informal complaint, when he specifically identified CSS as being the person who discriminated against him. We note that the original October 2014 PE rejection letter was more general in listing Complainant's alleged shortcomings when he was an Agency employee, and, as the FAD points out, it did not identify CSS as the source of the information. See Complainant's Appeal Brief, Exhibit A. However the February 2015 PR rejection letter identifies CSS as the source of information, identifies alleged shortcomings that are different from the ones alleged in the earlier letter, and states that "it has been reported that your surgical judgment was the subject of review through the formal committees." See id., Exhibit C. In his informal complaint, Complainant specifically states that on February 2, 2015 he:
received written notice that his former supervisor, [CSS], had reported false and derogatory information about him to [PE] in response to his application for employment by stating that [Complainant] was ineligible for re-hire at the [Agency facility] because of problems with his surgical judgment that were the subject of review through formal committees.
We therefore find that Complainant was addressing actions by CSS that led to the February letter from PE, and was not addressing any actions by CSS, or perhaps unknown others, that led to the earlier October letter. Because Complainant received the letter on or about February 2, 2015 and contacted a Counselor on March 19, 2015, we find that his Counselor contact was timely.
CONCLUSION
Following a review of the record, we find that in Claims 1 & 2, Complainant failed to state a claim, but with regard to Claim 3, Complainant's EEO Counselor contact was timely. We therefore AFFIRM the FAD in part and REVERSE in part and we REMAND Claim 1 for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim 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 (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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