Colby P,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2020003602 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Colby P,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003602 Agency No. 2003-0554-2019105527 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 5, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Specialist, GS-9 at the Agency’s Denver VA Medical Center facility in Denver, Colorado. On December 21, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to unfair treatment/harassment from August through December 2019 on the bases of race (Black), disability, age, and retaliation. The EEO Counselor’s report indicates that Complainant’s allegations were that, the Agency discriminated against him when he accepted a reassignment on September 5, 2019, the Agency did not inform him of the reduction in pay of $4,000 due to different locality pay. 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. 2020003602 2 The Agency dismissed the harassment claim, pursuant to 29 C.F.R. § 1614.107(a)(2), as a matter that had not been brought to the attention of a counselor and was not like or related to a matter that had been brought to the attention of a counselor. It dismissed the claim of discrimination relating to the reduction in pay pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant submits documents indicating that he resigned from his position. He also submits numerous documents regarding his alleged unfair treatment/harassment, including being relocated to another cubicle and being required to do more work than co-workers. He indicates that he was unhappy with his relocation because of the travel time and reduction in pay. He also includes documents relating to a previous complaint of harassment and other matters with the Agency. ANALYSIS AND FINDINGS Pay Claim 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). Here, the EEO Counselor’s report indicates that Complainant alleged that the Agency discriminated against him when they offered him a Vocational Rehabilitation Specialist position in Colorado Springs at the GS-9 level without informing him of the reduction in pay of $4,000, due to the difference in locality pay. However, the record shows that an email from the Office of Personnel Management (OPM), dated September 13, 2019, indicates that Complainant was offered the position at issue and advised of the reduction in pay, from $61,782.00 to $57,326.00, due to the locality of the position. The email also indicates that by accepting the firm job offer, Complainant agreed to the reduction in pay. We note that Complainant has not alleged that his pay differed from others of the same grade and step in that locality. Therefore, we agree with the Agency that Complainant has not alleged that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy and dismissal of this claim was proper. 2020003602 3 Harassment Claim EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor. The EEO Counselor’s report indicates that Complainant raised a claim of discrimination relating to his allegedly not being informed that his reassignment would result in a reduction in locality pay. The report does not indicate any claim of harassment. Complainant’s allegation of harassment in his formal complaint does not add to or clarify the original complaint, which related to the locality pay differential, and could not have reasonably been expected to have grown out of that initial complaint raised in counseling. Therefore, we find dismissal of the harassment claim was proper. 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. 2020003602 4 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 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 August 18, 2020 Date