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.