0120082241
09-23-2008
Edward Damon, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Edward Damon,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082241
Agency No. 200H-0526-2007104282
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated March 27, 2008, 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. Complainant alleged that he was subjected to
discrimination on the bases of race (white), age (55 at time of first
incident), and reprisal1 in that he was subjected to harassment/hostile
work environment when:
1. on April 3, 2006, he was charged with absence without leave (AWOL),
which resulted in a proposed two week suspension by the Patient
Care Center Director that was reduced on July 10, 2006, to a one day
suspension,
2. on August 2, 2007, complainant was threatened by a patient, no
action was taken, and he was subsequently invited back for a second drug
screening without appropriate security measures taken for complainant,
3. on August 17, 2007, complainant was issued a proposed five day
suspension by the Patient Care Director, which was reduced to a written
reprimand effective October 22, 2007.2
The FAD dismissed claims 1 and 2 for failure to timely initiate contact
with an EEO counselor. It dismissed claim 3 for failure to timely file
the complaint.
EEOC regulations require the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so. 29 C.F.R. �
1614.106 and .107(a)(2). The notice of right to file was delivered
to complainant's attorney 1 office in New York on December 27, 2007.
On appeal, complainant's attorney 2 writes that attorney 1 was in Boston,
MA almost exclusively starting on December 5, 2007, the date her mother
fell ill and suffered a serious traumatic brain injury. Attorney 2 writes
this left the care of the terminally ill father, who died on January
21, 2008, while the mother was still in the hospital, to attorney 1.
Attorney 2 writes that attorney 1 did not have the opportunity to see
the notice of right to file until January 4, 2008, the day attorney 2
joined the practice and made an appearance on behalf of complainant.
Attorney 2 writes that the EEO counselor agreed that attorney 1 had until
January 18, 2008, to file the complaint by mail. He submits an e-mail
string between attorney 1 and the EEO counselor. A January 14, 2008,
e-mail by attorney 1 states that she was in Boston caring for her parents
since a few days before the notice of right to file was delivered, that it
took time to get the appropriate documents needed to file the complaint,
that it was her intention to send the complaint by overnight delivery
that day, but a severe snow storm made it impossible. On January 15,
2008, the EEO counselor e-mailed attorney 1 that she "still had time to
get the paperwork postmarked before the end of the week." That Friday
was January 18, 2008. The complaint was sent by overnight mail on
January 16, 2007, and the agency acknowledged its receipt the next day.
The agency does not respond to the contention of an agreed extension.
In dismissing claim 3, the FAD reasoned that complainant's attorney
received the notice of right to file the complaint on December 27,
2007, but did not file the complaint until January 16, 2007, beyond the
15 day time limit. This time limit is subject to waiver, estoppel and
equitable tolling. 29 C.F.R. � 1614.604(c). Given the facts above, we
find that it is more likely than not that the EEO counselor gave attorney
1 an extension to file the EEO complaint until January 18, 2008. As the
complaint was filed on January 16, 2008, we find it was timely filed.
The FAD dismissed claims 1 and 2 for failure to timely initiate EEO
counseling. An aggrieved person must seek EEO counseling within 45 days
of the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1). In explaining his untimeliness, complainant
wrote that he promptly brought his concerns to agency authorities and
believed they would address them appropriately, and none suggested he
contact an EEO counselor. However, he does not contend he was unaware
of the time limit to initiate EEO counseling.
Complainant also contends that it was not until the proposed five day
suspension of August 17, 2007, that it became clear to him that the
previous incidents were discriminatory. The time limit to seek EEO
counseling shall be extended when an individual shows he did not know
and reasonably should not have known that the discriminatory action or
personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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. In his April 2006 response to the proposed 14 day suspension,
complainant argued it was unwarranted and referred to it as "harassment."
We find complainant had sufficient information to reasonably suspect
discrimination when the incidents in claims 1 and 2 occurred.
While we reversed the FAD's reason for dismissing claim 3, i.e., failure
to timely file the complaint, we dismiss it for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). Complainant filed some kind of grievance
challenging the August 17, 2007, proposed suspension. On January 9,
2008, an investigating grievance examiner recommended that the grievance
be sustained regarding the charges supporting the proposed suspension
which had been reduced to a reprimand. On January 16, 2008, the "VISN
#3 Director" concurred, and directed that the letter of reprimand be
expunged from complainant's official personnel file and authorized a
petition for attorney fees.
The regulation set forth at 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. 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).
The dismissal of claim 3 for failure to state a claim is supported
by Commission case precedent. See Stevenson v. United States Postal
Service, EEOC Appeal No. 01A52057 (April 27, 2005) (affirmed dismissal
for failure to state a claim of a complaint alleging discriminatory
seven day suspension where via a grievance settlement, the suspension
was rescinded prior to the filing of the formal complaint); Sowell
v. United States Postal Service, EEOC Appeal No. 01A45473 (November 24,
2004) (affirmed dismissal for failure to state a claim of a complaint
alleging discriminatory notice of medical separation where via a grievance
settlement, the notice was rescinded prior to the filing of the formal
complaint).
Accordingly, the FAD's dismissal of the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (S0408)
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 23, 2008
__________________
Date
1 In complainant's February 11, 2008, letter clarifying his complaint,
he alleged that he was subjected to reprisal by the agency because
in December 2005 he reported to the Office of Special Counsel that
the Medical Center Director abused her authority by ordering that the
clinic do a magnetic resonance imaging (MRI) of an associate who was not
a veteran and not in urgent need of care. This does not appear to be a
claim of reprisal for protected EEO activity, over which the EEO process
has jurisdiction, albeit the FAD defined the reprisal claim that way.
2 The FAD defined the claim a little differently. The above definition
better captures the claim.
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0120082241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082241