01993014
06-22-2000
David Hoffman, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David Hoffman, )
Complainant, )
)
v. ) Appeal No. 01993014
) Agency No. 98-3976
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated February 2, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, 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.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), color
(white), national origin (Former U.S.S.R.), religion (Jewish), and age
(date of birth October 18, 1948) when on or about September 14, 1998,
complainant was not selected for a Research Pharmacist position with
the National Institute of Drug Abuse (NIDA) at the New York VAMC.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant never applied for the
position. Further, the agency found that it did not have jurisdiction
over the claim because it was not involved in the selection process;
the selection was performed by NIDA.
On appeal, complainant argues that he did not apply for the position
because it would have been futile. He claims that an Oriental GS-11
Pharmaceutical Care (PC) pharmacist began working in the GS-12 NIDA
position before interviews were conducted. He further contends that
since the NIDA position required a GS-12, all PC pharmacy positions were
upgraded to GS-12 shortly before the NIDA selection. He argues that
applications were accepted and interviews conducted to �technically�
comply with discrimination laws. Before the NIDA selection was made,
complainant asserts that the agency contacted NIDA, and informed them
that the selectee had been chosen by the agency for the position.
Complainant argues that the agency was involved in the selection, and
kept the selectee on the agency payroll. He further notes that agency
officials asked complainant to serve as the back-up to the selectee in
the NIDA position; therefore, complainant asserts that the agency had
jurisdiction over the NIDA selection process.
Complainant also claimed that in 1997, he was promoted from a PC
pharmacist to a research pharmacist. He was only made a GS-12, step
4, rather than a GS-12, step 10, despite his PhD and agency experience
dating back to 1986. He claims to have asked his supervisor for a step
increase at his annual review, but was told that only pharmacists with
direct patient contact were eligible for step increases. Given the
increases given to the selectee for the NIDA position, and other younger
employees, complainant contends that he was discriminated against.
Complainant also alleges that further discrimination occurred subsequent
to this complaint, when he was not selected for a GS-660-13 Pharmacy
Clinical Manager position.
In response, the agency notes that complainant does not contend that the
agency prevented him from applying for the NIDA position. It also argues
that complainant was advised of the opening in a timely manner, and had
the same opportunity as other employees to apply for the position.
The Counselor's Report, dated November 3, 1998, mentions the NIDA
position, but does not include any information concerning complainant's
alleged request for a step increase. The record also contains a copy of
the e-mail announcing the NIDA vacancy. This e-mail explains that the
position involves working � time for NIDA, and � time for the agency.
It also notes that the position is a term appointment, and will require
anyone accepting the position to give-up their career status.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a 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).
Generally, a claim of discriminatory non-selection fails to state a
claim when the complainant failed to apply for the position. See Owen
v. Social Security Administration, EEOC Request No. 05950865 (December
11, 1997). Complainant is only aggrieved by such claims where he proves
that the agency discouraged him from applying, or that the application
process was secretive. See Ozinga v. Department of Veterans Affairs,
EEOC Request No. 05910416 (May 13, 1991).
In the present case, complainant was notified of the position by e-mail,
and instructed to reply if he was interested. Complainant admits that
he never replied, and never applied for the position. He has failed to
show that the agency discouraged him from applying, or otherwise kept
him unaware of the opening. Accordingly, his complaint fails to state
a claim.
Concerning the denial of a step increase, complainant raises this
matter for the first time on appeal. He also complains of a subsequent
non-selection for a GS-660-13 Pharmacy Clinical Manager position.
Neither of these matters are referenced in the Counselor's Report, or in
complainant's formal complaint. Complainant is advised that if he wishes
to pursue, through the EEO process, the additional claims he raised for
the first time on appeal, he must initiate contact with an EEO Counselor
within fifteen (15) days of receiving this decision. The Commission
advises the agency that if complainant seeks EEO counseling regarding
the new claims within the above 15-day period, the date complainant
filed the appeal statement in which he raised these claims with the
agency shall be deemed to be the date of the initial EEO contact, unless
he previously contacted a counselor regarding these matters, in which
case the earlier date would serve as the EEO Counselor contact date.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (January
16, 1998).
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
June 22, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.