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time ago� and that his experience and training are outdated, despite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