Malcolm N.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20192019000133 (E.E.O.C. Feb. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Malcolm N.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000133 Agency No. 200P-0691-2018104533 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 1, 2018, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer (Corporal), GS-6, at the Agency’s VA Greater Los Angeles Health Care System facility in Los Angeles, California. On June 30, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when: (1) on or about February 15, 2017, he was not selected for the position of Police Officer (Instructor); (2) on or about March 13, 2017, he was not selected for the position of Lead Police Officer (Detective); (3) on or about May 16, 2017, he was not selected for the Lead Police Officer (Instructor); and (4) on or about May 17, 2017, he was not selected for the position of Lead Police Officer (K9/Sergeant). Complainant alleged that he learned that a manager had made comments in the past that may have affected his promotional opportunities. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000133 2 The Agency dismissed the complaint because Complainant had already raised his non-selection in two previous EEO complaints. In the alternative, the Agency dismissed for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS 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. In addition, the regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. In the instant case, Complainant states he is not trying to pursue his earlier cases, but rather that he is trying to show a history of discrimination in the department. However, he has not identified a new incident of alleged discrimination beyond the non-selections already raised in his prior complaints. Moreover, the latest alleged discriminatory non-selection identified in his complaint occurred on May 16, 2017, but Complainant did not initiate contact with an EEO Counselor until June 2, 2018, over a year later and well beyond the forty-five (45) day limitation period. Accordingly, the Agency correctly dismissed the non-selection claims. To the extent Complainant maintains his current complaint does not involve the identified non- selections, it is not clear from his complaint and related EEO counseling report exactly what Complainant is pursuing. The EEO counseling report does include an allegation concerning a January 2018 meeting between the former Chief of Police and the Associate Director which Complainant shows racial animus on the part of the Associate Director. Complainant stated he learned of these comments in a June 4, 2018 email from the Chief of Police. According to Complainant, the Associate Director allegedly told the Chief to keep an eye on the “new black kid he hired [not Complainant but another employee]” as “those types of people are lazy.” An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We find that Complainant has not established that he was aggrieved as a result of this incident, even if it occurred as alleged. The comments, as alleged, were not made directly to or about Complainant and are not linked to any present personal harm suffered by Complainant. While 2019000133 3 these comments may have been relevant evidence concerning possible racial animus in Complainant’s prior non-selections, those matters have already been adjudicated in two previous complaints. His discovery of this new evidence cannot now be used to revive those old claims. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 2019000133 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 8, 2019 Date Copy with citationCopy as parenthetical citation