Ishkhan Babajanian, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
01A43686_r (E.E.O.C. Nov. 29, 2004)

01A43686_r

11-29-2004

Ishkhan Babajanian, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Ishkhan Babajanian v. Department of the Army

01A43686

November 29, 2004

.

Ishkhan Babajanian,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01A43686

Agency No. ARBLISS04FEB0039

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dated April 15, 2004, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,

complainant alleged that he was subjected to harassment on the bases

of race, national origin, sex, religion, color, disability, age, and

reprisal, when:

Complainant faced opposition to his being at WBAMC prior to his arrival

and that the agency had someone else in mind for the job, which hindered

complainant's arrival. After complainant's arrival, his allowance was

not processed in a timely manner, intentionally stalled, during which

time complainant lost compensation. Many decisions and actions are

made amongst physicians in the department behind closed doors or when

complainant is gone, including the recent chart review. Complainant did

not participate in the peer chart review.

Complainant has been harassed and hindered to get medical leave.

Complainant has been given the most number of patients to treat in the

past year. The agency attributes issues that arise to complainant's

sarcoma and not to clinic shortcomings.

Many allusions have been made that complainant �learned medicine a long

time ago� and that his experience and training are outdated, despite

his attempt to keep current in the pediatric field.

Complainant was subjected to numerous incidents after he complained about

clinic management to higher authority. He was required to resubmit a

review form to the new Officer in Charge (OIC), he was assigned to a

proctor and given one days' notice to complete a PALS recertification

and notification requesting recredentialing.

Complainant addressed the basis in his complaint but did not address

any incidents regarding discrimination based on religion.

The agency dismissed the complaint for failure to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1), for untimely EEO Counselor contact pursuant

to 29 C.F.R. � 1614.107(a)(2), and for raising matters in the complaint

that were not raised with an EEO Counselor and were not like or related

to matters raised with an EEO Counselor.

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. 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).

We find the record shows that the �recent chart review� described by

complainant in claim (a) occurred in February 2004. Further, we find

this action by the agency is not a disciplinary action, but a preliminary

step taken by the agency to address performance issues, as opposed to an

ultimate or adverse employment action. Accordingly, we find claim (a)

fails to state a claim and is properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(5).

We find that claim (c) describes an isolated remark or remarks that

may indicate bias on behalf of the speakers, but which, without more,

do not state a claim. We therefore find the agency's dismissal of claim

(c) for failure to state a claim is proper.

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.

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.

We observe from the record that complainant alleged discrimination

regarding denied or delayed leave requests (claim (b)) that occurred

from August 2003 through December 2003. Complainant initiated the EEO

process on February 25, 2004. We find complainant has not provided any

persuasive evidence to warrant an extension of the 45-day time limit.

Further, nothing in the record indicates that any of the incidents

described in claims (d) or (e) occurred within 45-days of complainant's

initial EEO contact date. Accordingly, claims (b), (d), and (e), were

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely

EEO Counselor contact.

We therefore AFFIRM the agency's dismissal of the complaint on the

grounds stated herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 29, 2004

__________________

Date