Lee F. Hiller, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 2, 2000
01994087 (E.E.O.C. Mar. 2, 2000)

01994087

03-02-2000

Lee F. Hiller, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Lee F. Hiller, )

Complainant, )

)

v. ) Appeal No. 01994087

) Agency No. 98-0702

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On April 19, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on April 14, 1999,

pertaining to 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 basis of race (African-American)

when:

Complainant's salary as Supervisory Medical Technologist, GS-9, is not

on an equal scale with the Lakeside Hospital, and other hospitals in

the agency, although complainant works at a satellite facility of the

Lakeside Hospital; and

On or about August 28, 1997, complainant's supervisor asked if

complainant would consider working at Lakeside Hospital two days per

week.

The agency dismissed claim (1) for untimely counselor contact, because

it found that complainant's request for an upgrade to GS-11 was denied

in 1996, but complainant failed to contact a counselor until August

29, 1997. Alternatively, the agency dismissed claim (1) for failure

to cooperate because it requested that complainant provide information

regarding the exact date of the incident alleged, and complainant failed

to respond. The agency dismissed claim (2) for failure to state a claim.

Specifically, the agency found that complainant never worked at Lakeside,

and was never required to do so. The agency found that the supervisor

merely suggested that complainant work there.

On appeal, complainant argues that he is requesting equal pay. He claims

that his position was slated for a GS-11, but was rated GS-9 shortly

before the clinic opened in 1998. Complainant argues that he has

attempted without success to have his position upgraded to GS-11 for

eleven years. Complainant also notes that the reason given in the

most recent denial, that the hospital's medical technicians perform

more complicated tests, was untrue -- the tests were sent to outside

laboratories. Regarding claim (2), complainant argues that he was asked

to take a GS-9 position at Lakeside previously held by a GS-11.

In response, the agency contends that complainant argues the merits of

his complaint without addressing his untimeliness. The agency reiterates

that the most recent denial of complainant's request for an upgrade

occurred �last year,� according to complainant's formal complaint.

The record includes the formal complaint, dated September 29, 1997.

Therein, complainant alleged, inter alia, that he sent a new position

description for approval of a promotion, but was denied �last year.� The

record also includes the Counselor's Report, dated September 5, 1997,

listing complainant's initial counselor contact as August 29, 1997.

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 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.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

Complainant is alleging that his position was improperly classified as

a GS-9, and therefore, he was not given pay commensurate with medical

technicians at other facilities. Complainant claims that his most

recent request for an upgrade was denied �last year,� presumably in 1996,

given that the complaint was written in 1997. Complainant's request for

counseling, on August 29, 1997, therefore, was untimely with regard to

claim (1). Further, complainant has not presented adequate justification

to toll the forty-five day time limit.<2>

Volume 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 22,

1994).

Regarding claim (2), complainant has not alleged harm with respect to

a term, condition, or privilege of employment. Complainant presented

no evidence that he was required to work at the Lakeside Hospital, or

that he suffered any adverse action for refusing to go. Further, this

incident was not sufficiently severe or pervasive to alter the conditions

of the complainant's employment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997) (setting forth requirements to

prove a hostile work environment in the absence of disparate treatment

regarding a specific term, condition, or privilege of employment).

Therefore, claim (2) fails to state a claim.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

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 2, 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 Equal Employment Assistant 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.

2Since we are affirming the agency's dismissal of claim (1) on the

grounds of untimely counselor contact, we will not address the agency's

alternative grounds for dismissal, i.e., that complainant failed to

prosecute his claim.