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
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0120093470
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093470
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