Teresa A. Elsholz, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01A02432 (E.E.O.C. Jul. 6, 2000)

01A02432

07-06-2000

Teresa A. Elsholz, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Teresa A. Elsholz v. Department of Veterans Affairs

01A02432

July 6, 2000

Teresa A. Elsholz, )

Complainant, )

)

v. )

) Appeal No. 01A02432

Togo D. West, Jr., ) Agency No. 200J-376

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On February 11, 2000, complainant filed a timely appeal with this

Commission from an agency's decision regarding her 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The Commission accepts the appeal in accordance with 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

On September 13, 1999, complainant contacted the EEO office regarding

claims of discrimination based on sex and age. Specifically, complainant

identified five separate claims:<2>

A) Failure to Promote / Denied Opportunity for consideration of promotion

- the Director failed to recommend complainant for promotion to Level IV;

B) Pay - complainant was denied equal pay under Title 38 pay scales with

regard to males paid in accordance with Title 5 (GS) pay scales;

C) Retaliation - the Director intentionally reorganized the structure

of the facility/ nursing care to a "traditional structure" in order to

eliminate Level IV positions and eliminate duties and responsibilities

of complainant;

D) Hostile Work Environment - complainant's immediate supervisor was

directed by the Director to scrutinize her work performance; and,

E) Inconsistent Nursing Professional Standards Board Actions - the

Director influenced the NPSB [Nursing Professional Standards Board]

with regard to Title 38 pay scales.

The agency issued a decision, dated January 19, 2000, dismissing

the complaint. Specifically, claims B, D, and E were dismissed for

failure to state a claim. Claims A and C were dismissed for untimely

EEO Counselor contact. Regarding claim B, the agency determined that

complainant failed to identify similarly situated male employees who

perform non-nursing related duties and are compensated with Title 38

pay scales. The agency further determined that, with respect to claim D,

complainant did not specify a particular incident or date. With respect

to claim E, the agency found that complainant failed to state how any

decision by the NPSB on September 23, 1999 directly affected a term or

condition of her employment.

Regarding the claims dismissed for untimely EEO Counselor contact, the

agency determined that complainant contacted the EEO office on September

13, 1999. However, the agency found that the agency Director denied the

request to consider complainant for promotion (claim A) on March 25,

1999 and that the reorganization of the facility (claim C) was approved

on February 19, 1999. Therefore, the agency concluded that complainant's

contact was well beyond the forty-five day time limitation.

On appeal, complainant, through her attorney, presents several arguments.

In response to the agency's dismissal of claim A, for untimely Counselor

contact, complainant contends that the time limit should not have been

triggered until August 10, 1999. Complainant asserts that although the

ADPC, who handled her request for promotion, was informed of the denial

on March 25, 1999 she was not notified at that time. Complainant asserts

that tt was not until May 13, 1999 that she learned of the Director's

refusal to consider her promotion. Further, complainant argues that

between May and August 1999 she made several attempts to obtain action

on her request for promotional consideration. On August 10, 1999, she

received a letter from VISN 11 Director, stating that consideration would

be granted after a meeting was held with the Medical Center Director.

Complainant went to the EEO office after it appeared that the meeting

would not take place. In addition, complainant argues that claim A is

a part of a continuing violation and therefore the time limit should

be waived. Alternatively, she asserts that since she has "vigorously

pursued resolution of her matter ... through all available avenues..."

the time limit should be tolled.

Noting that the agency dismissed claim B on the grounds that complainant

failed to present similarly situated male employees, and that the

employees identified by complainant were graded by a different

classification system, complainant argues that the classification

system utilized is irrelevant.

Regarding claim C, complainant argues that the Director's February

19, 1999 approval of the reorganization was not a personnel action.

She reiterates that the effective date, which should have triggered the

time limit for contacting a counselor, was August 10, 1999.

Regarding claim D, complainant describes on appeal several instances

where she believes she was subjected to scrutiny. On December 10, 1999,

complainant claims the Director looked at her while making a statement

about employees using the EEO system for bribery. Further, on January 2,

2000, complainant contends that the ADPC instructed her not to carry on

conversations at staff meetings while others were not. Complainant argues

that she reported these incidents to her EEO Counselor.

The agency dismissed claim E on the grounds that complainant failed to

show how any action by the NPSB or Director resulted in a harm to a term

or condition of her employment. On appeal, complainant argues that she

has been injured by the "artificially low glass ceiling for females...",

that there is no process by which females can be considered for referral

of applications for promotion.

Claims A and C

Volume 64 Fed. Reg. 37,644, 37, 656 (1999) (to be codified and

hereinafter referred to as 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 she was not notified of the

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

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

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

or the Commission.

Here, according to complainant's statement on appeal, she learned that

her request for consideration (claim A) had been denied on May 13, 1999.

Complainant waited approximately four months, well beyond the forty-five

day time limitation, before contacting the EEO Counselor. Following the

initial denial, complainant took several steps to obtain action on

her request, including meetings with the Director and correspondence

with the VISN 11 Director. The Commission has consistently held

that utilization of internal agency procedures, union grievances, and

other remedial processes does not toll the time limit for contacting

an EEO Counselor. See Kramer v. U.S. Postal Service, EEOC Appeal

No. 01954021 (October 5, 1995); Williams v. U.S. Postal Service, EEOC

Request No. 05910291 (April 25, 1991). Therefore, we are unpersuaded

by complainant's argument that the time limit should be tolled based

on her efforts to resolve the matter. We find that the denial of her

request by the Director was a discrete event that should have raised

complainant's suspicions. The Commission has found that, since the

limitation period for contacting an EEO Counselor is triggered by the

reasonable suspicion standard, waiting until one has "supporting facts"

or "proof" of discrimination before initiating a complain can result

in untimely Counselor contact. See Bracken v. U.S. Postal Service, EEOC

Request No. 05900065 (March 29, 1990). Therefore we find that claim A

was properly dismissed for untimely counselor contact.

In claim C, complainant claims that the Director intentionally reorganized

the structure of the facility to a "traditional structure" in order

to eliminate Level IV positions, and some of complainant's duties and

responsibilities. We find that both claim A and C concern the agency's

alleged failure to promote. As with claim A, the agency dismissed

claim C for untimely Counselor contact. The record indicates that the

restructuring was approved in February 1999. However, complainant argues

that, with respect to claim C, the time limit for Counselor contact

should not have been triggered until August 10, 1999 (when the VISN

11 Director sent her a letter offering a meeting). We disagree with

complainant and find that she should have contacted the Counselor more

than forty-five days before her initial contact on September 13, 1999.

Therefore, the agency's dismissal of claim C was proper.

Claims B, D, and E

The agency dismissed complainant's claim that she was denied equal pay

(claim B), on the grounds that she failed to identify similarly situated

male employees. The agency indicated that male employees identified

by complainant were graded by a different classification and therefore

not comparable. We find that the agency's determination goes to the

merits of complainant's complaint and is irrelevant to the procedural

issue of whether she has stated a justiciable claim. See Ferrazzoli

v. U.S. Postal Service, EEOC Request No. 05910642 (August 15, 1991).

Accordingly, Claim B states a claim and was improperly dismissed by

the agency.

Claim D (hostile work environment) was dismissed by the agency, for

failure to state a claim, on the grounds that complaint failed to

identify specific incidents or dates where her work was scrutinize.

We acknowledge the instances presented on appeal by complainant, but find

that the alleged incidents are not sufficiently severe or pervasive to

create a claim of discriminatory harassment. See Cobb v. Department of

the Treasury, EEOC Request No. 05970077 (March 13, 1997).

In Claim E complainant alleged she was discriminated against by the

actions of the Nursing Professional Standards Board. The agency dismissed

the claim on the grounds that complainant failed to show how she was

harmed by the alleged actions. On appeal, complainant contends that the

boards actions created an "artificially low glass ceiling for females..."

and the absence of a process by which females could be considered for

promotion. We find that Claim E does not state a separate claim, but

is part of the broader claim of failure to promote set forth in Claim C.

Accordingly, the agency properly dismissed claim E for failure to state

a claim.

Accordingly, the agency's dismissal of claims A, C, D, and E was proper

and is AFFIRMED. The agency's dismissal of claim B and was improper

and is hereby REVERSED. Claim B is REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claim (claim B) in

accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall

acknowledge to the complainant that it has received the remanded claim

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 (K1199)

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 19848,

Washington, D.C. 20036. 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T0400)

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 (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 6, 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.

2The Commission notes that the agency utilized complainant's framework

in their decision but used lettering to identify each claim, rather than

the numbers utilized by complainant. We will follow the method used in

the agency's decision for consistency.