01994087
03-02-2000
Lee F. Hiller, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Lee F. Hiller, )
Complainant, )
)
v. ) Appeal No. 01994087
) Agency No. 98-0702
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On April 19, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 14, 1999,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that he
was subjected to discrimination on the basis of race (African-American)
when:
Complainant's salary as Supervisory Medical Technologist, GS-9, is not
on an equal scale with the Lakeside Hospital, and other hospitals in
the agency, although complainant works at a satellite facility of the
Lakeside Hospital; and
On or about August 28, 1997, complainant's supervisor asked if
complainant would consider working at Lakeside Hospital two days per
week.
The agency dismissed claim (1) for untimely counselor contact, because
it found that complainant's request for an upgrade to GS-11 was denied
in 1996, but complainant failed to contact a counselor until August
29, 1997. Alternatively, the agency dismissed claim (1) for failure
to cooperate because it requested that complainant provide information
regarding the exact date of the incident alleged, and complainant failed
to respond. The agency dismissed claim (2) for failure to state a claim.
Specifically, the agency found that complainant never worked at Lakeside,
and was never required to do so. The agency found that the supervisor
merely suggested that complainant work there.
On appeal, complainant argues that he is requesting equal pay. He claims
that his position was slated for a GS-11, but was rated GS-9 shortly
before the clinic opened in 1998. Complainant argues that he has
attempted without success to have his position upgraded to GS-11 for
eleven years. Complainant also notes that the reason given in the
most recent denial, that the hospital's medical technicians perform
more complicated tests, was untrue -- the tests were sent to outside
laboratories. Regarding claim (2), complainant argues that he was asked
to take a GS-9 position at Lakeside previously held by a GS-11.
In response, the agency contends that complainant argues the merits of
his complaint without addressing his untimeliness. The agency reiterates
that the most recent denial of complainant's request for an upgrade
occurred �last year,� according to complainant's formal complaint.
The record includes the formal complaint, dated September 29, 1997.
Therein, complainant alleged, inter alia, that he sent a new position
description for approval of a promotion, but was denied �last year.� The
record also includes the Counselor's Report, dated September 5, 1997,
listing complainant's initial counselor contact as August 29, 1997.
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.
Complainant is alleging that his position was improperly classified as
a GS-9, and therefore, he was not given pay commensurate with medical
technicians at other facilities. Complainant claims that his most
recent request for an upgrade was denied �last year,� presumably in 1996,
given that the complaint was written in 1997. Complainant's request for
counseling, on August 29, 1997, therefore, was untimely with regard to
claim (1). Further, complainant has not presented adequate justification
to toll the forty-five day time limit.<2>
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 22,
1994).
Regarding claim (2), complainant has not alleged harm with respect to
a term, condition, or privilege of employment. Complainant presented
no evidence that he was required to work at the Lakeside Hospital, or
that he suffered any adverse action for refusing to go. Further, this
incident was not sufficiently severe or pervasive to alter the conditions
of the complainant's employment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997) (setting forth requirements to
prove a hostile work environment in the absence of disparate treatment
regarding a specific term, condition, or privilege of employment).
Therefore, claim (2) fails to state a claim.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
March 2, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2Since we are affirming the agency's dismissal of claim (1) on the
grounds of untimely counselor contact, we will not address the agency's
alternative grounds for dismissal, i.e., that complainant failed to
prosecute his claim.