Russell L. Bennett, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 11, 2000
01a02595 (E.E.O.C. Jul. 11, 2000)

01a02595

07-11-2000

Russell L. Bennett, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Russell L. Bennett, )

Complainant, )

)

v. ) Appeal No. 01A02595

) Agency No. 200P-2043

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 19, 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 religion (Jewish) and in reprisal for prior EEO activity when:

On May 11, 1999, complainant received notification that he was not

selected for the position of Healthcare Education Specialist (Multimedia

Producer), GS-13, Announcement No. VALU 99-23;

A vacancy for Computer Specialist (IS Site Manager), GS-11/12,

Ann. No. VALU 99-32 was posted while complainant was on extended FMLA

leave, denying complainant an opportunity to apply for the position; and

A disparity in grade exists in that all other Site Managers have been

promoted to GS-12, while complainant (an Acting Site Manager when he

filed his formal complaint) remains a GS-11.

The agency dismissed claims (1) and (2) for untimely counselor contact.

The agency found that complainant failed to contact an EEO Counselor

until November 8, 1999, more than forty-five days after claims (1) and

(2) occurred. Concerning claim (2), the agency noted that the vacancy

was posted June 7, 1999, but that complainant did not begin FMLA leave

until June 9, 1999. Therefore, the agency found that complainant had an

opportunity to apply for the position before he took leave, but failed

to do so.

The agency also dismissed claim (3) for failure to state a claim.

The agency explained that claim (3) �had its genesis� from a series of

e-mail written between complainant and his supervisor in November 1999.

The agency found that as a result of these e-mails, complainant learned he

was a GS-11 �IS Site Manager.� The agency also found that the disparity

in grade, as explained in the e-mail, was from complainant's failure to

be selected for GS-12 positions, not from some independent failure to

promote complainant. Therefore, the agency reasoned that complainant

suffered no independent harm from the matter alleged in claim (3),

and failed to state a claim.

On appeal, complainant argues that he received FMLA leave from June 7,

1999 until September 7, 1999, during which time he was hospitalized for a

stress-related illness. He contends that this leave prevented him from

contacting a counselor. Complainant further asserts that he contacted

a counselor in May 1999, after he learned that outside individuals were

hired for positions during a hiring freeze. He claims to have contacted

management with this information, who informed him he was �never going

to get a promotion in this organization.� After speaking informally

with a counselor, complainant asserts that he took FMLA leave, and was

unable to meet with the counselor.

Complainant also contends that he has suffered from a continuing pattern

of discrimination. He claims that upon his return, he was not selected

for a Webmaster position, Vacancy Ann. No. EES 99-65. According to

complainant, he was the only employee without a permanent assignment.

Further, complainant argued that his opportunities for advancement were

harmed when he was not given a performance appraisal from April 1998

through November 1999.

In response, the agency notes that complainant's non-selection for the

Webmaster position should not be considered with the present complaint,

because it occurred after the final decision was issued. Concerning

complainant's counselor contact, the agency includes a signed declaration

from the EEO Counselor indicating that he spoke with complainant on May

25, 1999, but that complainant did not wish to pursue the EEO process

at that time. The agency also asserts that complainant presented no

evidence to show he was medically incapable of contacting a counselor.

Concerning claim (3), the agency reiterates that since complainant could

only receive a GS-12 through competitive selection, claim (3) did not

involve any agency action or omission independent of the non-selection

claims.

The record contains a copy of the EEO Counselor's signed declaration.

This document detailed that in a May 25, 1999 conversation, complainant

informed the EEO Counselor that he did not want to file a complaint.

According to the counselor, he then informed complainant of the forty-five

day time limit in case he decided to file a complaint concerning his

non-selection.

The record also includes a copy of e-mail from complainant's supervisor,

dated November 2, 1999, informing complainant, �You cannot be promoted

to a higher grade without applying for a higher graded [sic] position.�

A separate e-mail, dated November 3, 1999, informed complainant that he

might already be a GS-12 if he had applied for Ann. No. 99-32 when it

originally was posted.

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.

The Commission has held that in order to establish EEO Counselor contact,

an individual must contact an agency official logically connected

to the EEO process and exhibit an intent to begin the EEO process.

Allen v. United States Postal Service, EEOC Request No. 05950933 (July

9, 1996). Although complainant spoke with a counselor in May 1999, he

did not exhibit any intent to proceed with the process. Complainant did

not speak with a counselor again until November 8, 1999. Accordingly,

the Commission finds that he did not establish EEO Counselor contact

for timeliness purposes until November 8, 1999.

Complainant argues for tolling the time limit to account for his

hospitalization and FMLA leave. We have consistently held, in cases

involving physical or mental health difficulties, that an extension is

warranted only where an individual is so incapacitated by his condition

that he is unable to meet the regulatory time limits. See Davis

v. United States Postal Service, EEOC Request No. 05980475 (August

6, 1998). Claims of mental incapacity must be supported by medical

evidence of incapacity. See Crear v. United States Postal Service, EEOC

Request No. 05920700 (October 29, 1992) (claimant's argument that she

suffered from depression and could file only after obtaining treatment

from a psychiatrist, was not enough to show incapacity); see also Sohal

v. United States Postal Service, EEOC Request No. 05970461 (April 24,

1997) (letter from psychologist stating that claimant's �continuous

and unrelenting� depression rendered him unable to make decisions,

and that his medication further affected his cognitive abilities, was

sufficient to prove incapacity). Evidence that a claimant suffered

great mental stress, and obtained treatment for that stress, is not

enough to prove incapacity. See Galbreath v. Department of the Navy,

EEOC Request No. 05980927 (November 4, 1999).

In the present case, complainant claims to have been incapacitated,

and hospitalized for stress-related illnesses. Complainant presents no

medical evidence, nor any proof of hospitalization to support his claims.

Therefore, the Commission finds no reason to toll the forty-five day time

limit with regard to claims (1) and (2). Further, even if the Commission

tolled the time limits from June 7, 1999 through September 7, 1999,

complainant's November 8, 1999 contact would be untimely. Accordingly,

the Commission finds that the agency's dismissal of claims (1) and (2)

for untimely counselor contact was proper.

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 has held that a complainant not eligible for career ladder

promotion, but who claims harm from the agency's failure to promote

without reference to competitive promotions, has failed to state a claim.

See Limle v. Department of Veterans Affairs, EEOC Appeal No. 01944678

(March 8, 1995); Reese v. Department of the Navy, EEOC Appeal No. 01930497

(March 17, 1993). In claim (3), complainant alleges harm from the

�disparity� of his GS-11 salary versus that of his GS-12 co-workers.

However, complainant is not eligible for career ladder promotion; he

must compete for promotion to a GS-12 position. Therefore, claim (3)

is not cognizable as an independent claim of discrimination.

Finally, the Commission notes that complainant raised several claims not

addressed with an EEO Counselor. Inasmuch as complainant identified other

incidents of alleged discrimination, he must initiate EEO counseling

regarding any new allegations within 15 days after he receives this

decision, if he wishes to pursue them and he has not already done so. The

agency is advised that if complainant seeks EEO counseling regarding

any new allegations raised on appeal within the above 15-day period,

the date complainant filed the appeal statement in which he raised these

allegations shall be deemed to be the date of the initial EEO contact,

unless complainant previously contacted an EEO Counselor regarding these

matters. If there has been a previous contact, the earlier date would

serve as the EEO counselor contact date. Qatsha v. Department of the Navy,

EEOC Request No. 05970201 (January 16, 1998); Parker v. Department of

the Army, EEOC Request No. 05960025 (August 29, 1996).

CONCLUSION

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.