William P. Banner, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 12, 2009
0120093470 (E.E.O.C. Nov. 12, 2009)

0120093470

11-12-2009

William P. Banner, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


William P. Banner,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120093470

Agency No. 200P-0570-2009101601

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated June 26, 2009, 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.

In the instant formal complaint filed on May 19, 2009, complainant, an

agency physician, claimed that he was subjected to discrimination on the

basis of race (African American). In that portion of the complaint form

requesting an identification of the nature of the claim, complainant

wrote, "assignment of duties." Complainant further elaborated this

claim by stating that in February 1999, the agency reduced his surgical

privileges to non-invasive surgery due to the death of a patient.

Complainant stated that in August 2008, he discussed with the Chief of

Surgical Service, his concerns about regaining full surgical privileges.

Complainant stated that he was informed that he should be "glad that he

has a job." Complainant noted that in February 2009, he sent an email

message to the Chief, again requesting restoration of the privilege to

perform fully invasive surgery, but that the Chief responded requesting

additional information. As a remedy, complainant requests ". . . the

agency to reinstate his full surgical privileges."

On June 26, 2009, the agency issued the instant final decision. Therein,

the agency determined that complainant's complaint was comprised of the

following claim:

On February 12, 2009, the Chief of Surgical Service advised him to submit

a list of completed cases in response to his February 10, 2009 request as

to what he needed to do in order to have his invasive surgical procedure

privileges restored.

The agency dismissed the formal complaint for failure to state a claim,

pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency

determined that complainant failed to demonstrate that he suffered harm

to a term, condition or privilege of his employment.

On appeal, complainant argues that the his allegation is that he has

been denied an opportunity to perform invasive surgical procedures and

"the personal loss or harm as a result of the allegations that are

contained in my formal complaint is that as a board certified general

surgeon I want to perform surgical procedures that are consistent with

my level of training and interest. To spend my professional career as a

surgeon in performing primarily the excision of skin lesions and benign

tumors and in performing history and physical examinations on urologic,

orthopedic, and plastic surgery patients is frustrating and demeaning."

Upon review, we find that the agency improperly dismissed the instant

complaint for failure to state a claim. A fair reading of the record

reflects that complainant's formal complaint is not merely comprised

of the claim that the agency requested that complainant submit a

list of completed cases relating to the restoration of full surgical

privileges, as determined by the agency in its final decision. Instead,

the Commission determines that the formal complaint is comprised of the

claim that complainant was subjected to discrimination when his request

to perform invasive surgical procedures was denied. Complainant's claim

alleges a direct harm to a term, condition or privilege of his employment

relating to agency action. Complainant is therefore an aggrieved employee

and states a cognizable claim of disparate treatment discrimination.

Accordingly, the agency's final decision dismissing complainant's

complaint for failure to state a claim is REVERSED. The complaint is

REMANDED to the agency for further processing in accordance with this

decision and the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claim in accordance with 29

C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant

that it has received the remanded claims 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 (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (R0408)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. 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 filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

November 12, 2009

__________________

Date

2

0120093470

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120093470

6

0120093470