0120161069
04-12-2016
Sidney S.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sidney S.,1
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120161069
Agency No. 5X1L15009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 25, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Treatment Manager (GS-11) within the David Grant Medical Center ("Medical Center") on Travis Air Force Base, California.
On October 30, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), and age (77) when:
1. On May 6, 2015, his clinical privileges were temporarily suspended when the Chief of Medical Staff issued him a Notice of Abeyance of Clinical Privileges even though he received a pass and a monetary award for his March 2015 Appraisal;
2. On June 8, 2015, he was issued a Notice of Summary Suspension of Clinical Privileges by CMS, which extended his suspension pending a decision by Peer Panel Review;
3. On June 23, 2015, he was issued a Notice of Peer Review Panel, with allegations regarding his performance from October 2014 through April 2015 from the Credentials Function Acting Chairperson & Associate Chief of Medical Staff; and
4. On August 10, 2015, he was issued a Notice of Proposed Revocation of Clinical Privileges, along with the findings of the July 13, 2015 Peer Review Panel by the Deputy Commander ("DC"); resulting in another extension to the summary suspension, this time pending Peer Panel Review of the proposed revocation.
Complainant worked as one of three Treatment Managers ("TMs") in the Family Advocacy Program ("FAP"), an element of the Medical Center's Mental Health Flight. According to Complainant, FAP was structured to only have one federal employee TM, with the other two TMs as contractors. Complainant alleges that the two contract TMs ("C1, and C2") discriminated against him and fabricated accusations about his performance in order to take his job. According to Complainant, C1 and C2 each stated that they wanted a permanent federal position at the Medical Center; and FAP staff informed him that "Command goes after staff who reach Social Security Age." Complainant believes he was placed at a further disadvantage due to his sex when C2 arrived in March 2015. He alleges C2, C1 and the FAP supervisor ("S1") became very close. S1 discussed cases more often and for longer with C1 and C2, and Complainant received less feedback and fewer assignments. Complainant alleges that C2, who co-led the weekly "Mens Group" sessions, a therapy group he founded in 1999, critiqued it to S1 and FAP staff, but would not discuss it with him.
On May 6, 2015, the Agency placed Complainant's clinical privileges in abeyance (temporary suspension) and initiated a quality assurance investigation based on safety concerns raised since February 2015. Complainant alleges that this was the first he heard about the patient safety violation allegation. He asserts that FAP's mandatory monthly peer reviews signed off on by a supervisor, frequent team meetings discussing individual patients, and required clinical supervision, should have caught any alleged violation and given him an opportunity to resolve it. The suspension barred Complainant from interacting with patients including the weekly "Mens Group" and he could no longer access the Medical Center's data system, containing his records. The Agency states in the record that it is standard practice to immediately place privileges in abeyance when, as alleged here, the matter concerns patient safety.
On June 8, 2015, Complainant's abeyance converted to a Summary Suspension pending review by a Peer Review Panel ("the Panel") on July 1, 2015. the Panel reviewed the record and on July 13, 2015 found that Complainant had "performance deficiencies" from October 2014 through April 2015. These were mostly medical recordkeeping violations, which, Complainant alleges, his younger female counterparts, C1 and C2, also made yet were never penalized. Complainant notes that during the time frame identified by the Panel, he, unlike C2, never received a patient complaint or patient request to switch TM. Complainant's Annual Review during this time period reflects that he earned a financial award for his performance and S1 awarded him "met standards" ratings for every category.
On August 10, 2015, Complainant received the DC's Notice of Proposed Revocation of Clinical Privileges based on the Panel's findings. Per the Panel's recommendation, DC extended Complainant's suspension of clinical privileges. Another Peer Panel Review would determine the Proposed Revocation, which, like the Summery Suspension, was an "adverse action" with severe implications for Complainant's career. If Complainant left the Agency or retired before the Panel issued its decision, he would still have to include the suspension on employment applications, and the Agency could report him to the relevant national and state licensing boards. If Complainant did not leave the Agency and the Panel granted DC's Proposed Revocation, Complainant would be terminated from employment, lose part of his federal retirement savings, and the Agency would be required report the revocation of clinical privileges to the relevant licensing boards, barring him from practicing social work in the state of California and for the federal government.
In or around September 2015, the Agency offered Complainant an opportunity to retire with a "clean record," as long as he did so prior to the Panel's decision. On appeal Complainant states that he put in for retirement by the end of November 2015 in order to avoid potential harm to his retirement income. The proposed revocation was still pending Panel review at the time of this appeal.
The Agency dismissed Claims 1, 2 and 3 as untimely pursuant to 29 C.F.R. �1614.105(a)(1); and dismissed Claim 4 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(5).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The agency or the Commission shall extend the time limits when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory.
Complainant initially contacted an EEO Counselor on June 30, 2015, within 45 days of the alleged discriminatory acts described in Claims 2 and 3. The record reflects, and Complainant does not dispute, that the only purpose of his June 30, 2015 contact was to obtain information. We have long held that a complainant commences the EEO process by contacting an EEO Counselor and "exhibiting intent to begin the complaint process." See Hawkins v. Dep't of the Interior, EEOC Appeal No. 01990377 (July 29, 1999) Therefore, we agree with the Agency's determination that the EEO process commenced upon Complainant's second EEO contact, September 8, 2015, when he requested EEO processing for the claims in the instant complaint. Under this time frame, only Claim 4 falls within the 45 day limitation period. Complainant has not presented sufficient justification on appeal for extending or tolling the time limit.
Although timely, Claim 4 fails to state a claim because the alleged discriminatory act is a proposed action. there is no indication in the record, that the agency has taken any action related to the Notice of Proposed Revocation, as a result, we find that it remains a proposed agency action. Moreover, Complainant states on appeal that he plans to retire rather than wait for the Panel's decision on whether or not to take the proposed action. Claim 4 was correctly dismissed pursuant to 29 C.F.R. � 1614.107(a)(5).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
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.
Carlton M. Hadden, Director
Office of Federal Operations
April 12, 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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