0120100474
03-25-2011
Larry Howard, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Larry Howard,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120100474
Agency No. 200305492009103490
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 29, 2009, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Physician Assistant at the Agency's VA North Texas Healthcare System
facility in Dallas, Texas. On August 3, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on the
bases of race (African-American), sex (male), and color (Black) when he
was not given due process in relation to a malpractice suit filed against
the Agency. Complainant stated in June 24, 2009 correspondence that he
was not named in the suit. However, it appears he was questioned about
the matter. Complainant was concerned that the matter would be reported
to the National Practitioner Data Bank. However, this was not done. The
Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Agency also found that the lawsuit was
covered by the Federal Tort Claims Act The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to show 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). There is nothing in the record to show
any action was taken against Complainant as a result of the lawsuit.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is 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
March 25, 2011
__________________
Date
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0120100474
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100474