0120071650
06-29-2007
Stuart M. Selikowitz, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Stuart M. Selikowitz,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071650
Hearing No. 520200600221X
Agency No. 200H04052005103354
DECISION
On February 9, 2007, complainant filed an appeal from the agency's January
8, 2007, final order concerning his equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
ISSUE PRESENTED
The issue presented by this appeal is whether the EEOC Administrative
Judge's decision to affirm the dismissal of an issue in the complaint
was correct.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Part-Time Research Physician at the agency's Veterans Affairs Medical
Center facility in White River Junction, Vermont. Complainant had been
employed as a urological surgeon at the Medical Center until 2002 when
he incurred an injury to his right eye. In February 2002, complainant
voluntarily surrendered all clinical privileges and agreed to take a
research position for three years. (ROI at 118). He was required
to maintain funding for his research projects in order to continue
employment as a research physician. ROI at 118, 119. Complainant was
unable to obtain additional funding for his research projects and the
agency notified him that his employment would be terminated.
On September 1, 2005, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of disability (fragmentary vision,
right eye), age (D.O.B. 09/27/38), and in reprisal for engaging in prior
protected EEO activity, under the Age Discrimination in Employment Act,
when the agency's notice of termination of his employment caused him to
voluntarily retire.
At the conclusion of the investigation, the agency provided complainant
with a copy of the report of investigation and notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). Complainant
timely requested a hearing. Over complainant's objections, the AJ
assigned to the case issued a decision without a hearing on December
15, 2006. The agency subsequently issued a final order adopting the
AJ's finding that complainant failed to prove that he was subjected to
discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant states that he is not contesting the AJ's
determinations that there were no factual issues in dispute surrounding
his termination or that his termination was not based on discriminatory
factors. According to complainant, he is only appealing the AJ's
decision to affirm the agency's dismissal of his claim, as untimely,
that the agency issued a report to the National Practitioner Data Bank
(NPDB) informing them that his clinical privileges had been voluntarily
withdrawn. Complainant's Appeal brief at 4; Complainant's Letter dated
April 18, 2007. Therefore, the Commission will address this issue only
in this decision. The agency requests that its Final Order implementing
the AJ's decision be affirmed.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and
factual conclusions, and the agency's final order adopting them, de novo.
See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from
an agency's final action shall be based on a de novo review . . .");
see also EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). (providing that an administrative judge's "decision to issue a
decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be
reviewed de novo" meaning that the Commission will examine the record
without regard to the factual and legal determinations of the previous
decision maker. Under this standard, EEOC will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . issue its decision based on the
Commission's own assessment of the record and its interpretation of the
law. Id.
Applying this standard, the Commission has determined that the AJ's
decision to affirm the agency's dismissal was correct. On appeal,
complainant contends that there was a "false statement by the local
VA authorities in the [March 15, 2002] National Practitioner Data Bank
Adverse Action Report that forced a "voluntary" withdrawal of my clinical
privileges under pretext." Complainant's Appeal Brief at 4. According to
the AJ's decision, complainant did not contact the agency's EEO office
concerning the issue of a report to the NPDB until July 28, 2005, well
beyond the regulatory 45 day time period. Decision at 2. Complainant
does not contest that the agency's report occurred on March 15, 2002
more than three years prior to his report of a claim of discrimination.
Under the Commission's regulations, complaints of discrimination must be
brought to the attention of an 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. 29 C.F.R. � 1614.105(a)(1).
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.
Applying these principles, complainant has presented no evidence that he
was unaware of the time limits or was not aware that he may have had a
claim of discrimination. According to the record before us, complainant
stated in his deposition testimony during the investigation of the
complaint, that he was aware of the agency's report to the NPDB of his
"voluntary surrender of clinical privilege(s)... to avoid investigation
relating to professional competence or conduct," but that he decided
not to fight. ROI at 120. Complainant testified that he instead took a
research position. Id. This demonstrates that complainant was aware
at that time of the adverse nature of the agency's action and that he
could have sought EEO counseling in a timely manner.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we affirm the AJ's
decision to dismiss the issue regarding the agency's report to the NPDB
as being untimely. Therefore, the agency's final decision implementing
the AJ's decision is affirmed.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____06/29/07______________
Date
1 Although not contested by complainant, we find that the AJ appropriately
issued a decision without a hearing, as complainant failed to proffer
sufficient evidence to establish that a genuine issue of material fact
exists such that a hearing on the merits was warranted.
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0120071650
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071650