0120111224
05-26-2011
Joseph Anoruo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph Anoruo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111224
Agency No. 200P-0593-2010104266
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated November 29, 2010, dismissing a formal 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
During the period at issue, Complainant worked as a Clinical Pharmacist,
GS-12, at the Agency’s VA South Nevada Health Care System in Las
Vegas, Nevada.
On July 30, 2010, Complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. On October
11, 2010, Complainant filed the instant formal complaint, claiming that
the Agency subjected him to discrimination on the bases of race (black),
national origin (Nigeria), age (48), and in reprisal for prior protected
activity when:
(1). On May 25, 2004, his application for the Education Debt Reduction
Program (EDRP) was wrongfully determined to be late and denied due to
Complainant having relied on incorrect advice received from a Human
Resource Official.
(2) On September 19, 2007, the former Chief of Pharmacy Care Line and/or
Chief of Pharmacy, closed Complainant’s Infectious Disease Clinic and
Pain Clinic; and on September 21, 2010, he received a notification from
the Human Resources Manager, that the Chief of Pharmacy had stated
that the clinic was closed because, “it was not approved by the
VA,” which he perceived as meaning that there were questions about
Complainant’s competence.
(3) On June 26, 2010, the Medical Center Director refused to grant
Complainant a good faith meeting to discuss Complainant’s denial
of EDRP.
(4) On September 21, 2010, Complainant became aware that the Chief of
Pharmacy Service was Selecting Official who, on May 18, 2009, non-selected
Complainant for the position of Supervisory Pharmacist, GS-13, and that
he told the Human Resources Manager that Complainant was not selected
due to lack of supervisory and in-patient pharmacy experience.
The Agency dismissed claim 1 for failure to state a claim stating that
the ERDP is administered by the Healthcare Recruitment and Retention
Office (HRRO), New Orleans, Louisiana and therefore, determined that
the HRRO makes the decisions on EDRP applications. The Agency stated
that the local facility of the Human Resources Office functions only
as a liaison or coordinator and that it has no authority to override
the decision made by the HRRO. Accordingly, the Agency concluded that
Complainant lodged a collateral attack on another agency’s proceeding,
and thus lacked standing.
The Agency dismissed claims 1, 2 and 4 on the grounds that Complainant
did not contact an EEO Counselor on these claims until July 30, 2010,
beyond the 45-day time limit set by the regulations. The Agency found
his Counselor contact was untimely because the application for the EDRP
was originally denied on May 25, 2004 (claim 1), the clinic was closed
on September 19, 2007, (claim 2), and Complainant became aware that he
was not selected for the Supervisory Pharmacist on May 18, 2009 (claim 4).
Finally, the Agency dismissed claim 3 for failure to state a claim.
Specifically, the Agency determined that the incident raised in this claim
did not allege a personal loss or harm regarding a term, condition, or
privilege of employment. Moreover, the Agency found that the incident
alleged in claim 3 was neither severe nor pervasive enough to prove
that the alleged harassment had the purpose or effect of unreasonable
interfering with Complainant’s work performance or creating an offensive
or hostile work environment.
ANALYSIS AND FINDINGS
Complainant's formal complaint was properly dismissed pursuant to 29
C.F.R. §§ 1614.107(a) (1) and (2) for failure to state a claim and
on the grounds of untimely EEO Counselor contact.
Claims 1, 2, and 4
The record indicates that complainant first contacted an EEO Counselor on
July 30, 2010, which is beyond the 45-day limitation set by 29 C.F.R. §
1614.107 (a) (2), in regard to all of the matters raised in these three
claims. Complainant has failed to present adequate justification for
extending the limitation period beyond 45 days. The Agency's decision
to dismiss claims 1, 2, and 4 for failure to initiate contact with an
EEO Counselor in a timely fashion was proper and is AFFIRMED.
Because we affirm the dismissal of claim 1 for the reason stated herein,
we will not address alternative dismissal grounds.
Claim 3
Regarding claim 3, the Commission determines that this matter fails to
state a claim under the EEOC regulations because Complainant failed to
allege that he suffered harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
we find that the claim, even if proven to be true and viewed in a light
most favorable to Complainant, would not indicate that Complainant has
been subjected to harassment that was sufficiently severe or pervasive
to alter the conditions of employment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally,
the alleged Agency action was not of a type reasonably likely to deter
Complainant or others from engaging in protected activity. The Agency's
final decision dismissing claim 3 is also AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 26, 2011
__________________
Date
2
0120111224
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111224
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0120111224