0120152202
10-20-2015
Ruben P.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ruben P.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152202
Agency No. 200P-0612-2015100137
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 8, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Surgeon at the Agency's Veterans Affairs Northern California Health Care System facility in Mather, California.
On October 8, 2014, Complainant initiated EEO Counselor contact. Informal effort to resolve his concerns were unsuccessful.
On January 14, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the basis of age when:2
1. on September 15, 2014, his clinical privileges were suspended;
2. around September 17, 2014, he was ordered to report to the Agency's Sacramento facility for 30 days;
3. between September 17, 2014 and October 15, 2014, his requests for a hearing were ignored;
4. on September 17, 2014, he was notified that he would be placed on a Focused Practice Professional Evaluation; and
5. effective November 21, 2014, he had no choice but to retire from Agency employment.
In its May 8, 2015 final decision, the Agency dismissed claims 1 and 4, pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits claims of discrimination.
Further, the Agency dismissed claims 2, 3 and 5 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on October 8, 2014, which it found to be beyond the 45-day limitation period. While recognizing that Complainant initiated EEO Counselor contact in October 2014, the Agency nevertheless determines that with regard to Claims 2, 3, and 5, Complainant first raised these matters in the formal complaint and that, therefore, his October 2014 contact was untimely regarding these matters.
The instant appeal followed. On appeal, Complainant argues that his October 8, 2014 EEO Counselor contact was timely. Specifically, Complainant stated when he "initiated EEO Counselor contact on October 8, 2014, he mentioned that he was concerned about his privilege suddenly being suspended, being placed on an Focused Practice Professional Evaluation and eventually having to report to a different workstation for 30 days and 175 miles away from duty station, and the feeling that the Agency wanted him to resign. These issues, which the Agency claims were only raised for the first time in the formal complaint, were actually raised on the first instance by telephone call during that initial counselor contact."
ANALYSIS AND FINDINGS
Elected to raise the same matter in a negotiated grievance procedure (claims 1 and 4)
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both.
The record indicates that Complainant filed a grievance on November 3, 2014, on the same matters raised in his January 14, 2015 EEO complaint. The grievance process permitted pursuit of discriminatory matters in the grievance process or in the EEO complaint process, but not both (Article 43, Section 3). Therefore, we find that the Agency properly dismissed claims 1 and 4 pursuant to 29 C.F.R. � 1614.107(a)(4).
Untimely EEO Counselor contact (claims 2, 3 and 5)
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 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The alleged discriminatory event occurred between September 17, 2014 and October 15, 2014 and November 21, 2014. The Agency found that even though Complainant initiated EEO Counselor contact on October 8, 2014, the EEO Counselor contact at that time was unrelated to claims 2, 3, and 5, which were first raised in the formal complaint. However, we reject the Agency's analysis in this regard and find that Complainant's initial EEO Counselor contact in October 2014 was timely regarding all subject claims.
The Agency's final decision dismissing claims 1 and 4 was proper and is AFFIRMED. We REVERSE the Agency's final decision dismissing claims 2, 3 and 5 and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claims (claims 2, 3 and 5) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K0610)
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 (M0610)
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), at 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 (T0610)
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 (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 Complainants 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
October 20, 2015
__________________
Date
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.
2 For ease of reference, the Commission has numbered Complainant's claims as claims 1 - 5.
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