01a02595
07-11-2000
Russell L. Bennett, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Russell L. Bennett, )
Complainant, )
)
v. ) Appeal No. 01A02595
) Agency No. 200P-2043
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 19, 2000, dismissing 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 bases
of religion (Jewish) and in reprisal for prior EEO activity when:
On May 11, 1999, complainant received notification that he was not
selected for the position of Healthcare Education Specialist (Multimedia
Producer), GS-13, Announcement No. VALU 99-23;
A vacancy for Computer Specialist (IS Site Manager), GS-11/12,
Ann. No. VALU 99-32 was posted while complainant was on extended FMLA
leave, denying complainant an opportunity to apply for the position; and
A disparity in grade exists in that all other Site Managers have been
promoted to GS-12, while complainant (an Acting Site Manager when he
filed his formal complaint) remains a GS-11.
The agency dismissed claims (1) and (2) for untimely counselor contact.
The agency found that complainant failed to contact an EEO Counselor
until November 8, 1999, more than forty-five days after claims (1) and
(2) occurred. Concerning claim (2), the agency noted that the vacancy
was posted June 7, 1999, but that complainant did not begin FMLA leave
until June 9, 1999. Therefore, the agency found that complainant had an
opportunity to apply for the position before he took leave, but failed
to do so.
The agency also dismissed claim (3) for failure to state a claim.
The agency explained that claim (3) �had its genesis� from a series of
e-mail written between complainant and his supervisor in November 1999.
The agency found that as a result of these e-mails, complainant learned he
was a GS-11 �IS Site Manager.� The agency also found that the disparity
in grade, as explained in the e-mail, was from complainant's failure to
be selected for GS-12 positions, not from some independent failure to
promote complainant. Therefore, the agency reasoned that complainant
suffered no independent harm from the matter alleged in claim (3),
and failed to state a claim.
On appeal, complainant argues that he received FMLA leave from June 7,
1999 until September 7, 1999, during which time he was hospitalized for a
stress-related illness. He contends that this leave prevented him from
contacting a counselor. Complainant further asserts that he contacted
a counselor in May 1999, after he learned that outside individuals were
hired for positions during a hiring freeze. He claims to have contacted
management with this information, who informed him he was �never going
to get a promotion in this organization.� After speaking informally
with a counselor, complainant asserts that he took FMLA leave, and was
unable to meet with the counselor.
Complainant also contends that he has suffered from a continuing pattern
of discrimination. He claims that upon his return, he was not selected
for a Webmaster position, Vacancy Ann. No. EES 99-65. According to
complainant, he was the only employee without a permanent assignment.
Further, complainant argued that his opportunities for advancement were
harmed when he was not given a performance appraisal from April 1998
through November 1999.
In response, the agency notes that complainant's non-selection for the
Webmaster position should not be considered with the present complaint,
because it occurred after the final decision was issued. Concerning
complainant's counselor contact, the agency includes a signed declaration
from the EEO Counselor indicating that he spoke with complainant on May
25, 1999, but that complainant did not wish to pursue the EEO process
at that time. The agency also asserts that complainant presented no
evidence to show he was medically incapable of contacting a counselor.
Concerning claim (3), the agency reiterates that since complainant could
only receive a GS-12 through competitive selection, claim (3) did not
involve any agency action or omission independent of the non-selection
claims.
The record contains a copy of the EEO Counselor's signed declaration.
This document detailed that in a May 25, 1999 conversation, complainant
informed the EEO Counselor that he did not want to file a complaint.
According to the counselor, he then informed complainant of the forty-five
day time limit in case he decided to file a complaint concerning his
non-selection.
The record also includes a copy of e-mail from complainant's supervisor,
dated November 2, 1999, informing complainant, �You cannot be promoted
to a higher grade without applying for a higher graded [sic] position.�
A separate e-mail, dated November 3, 1999, informed complainant that he
might already be a GS-12 if he had applied for Ann. No. 99-32 when it
originally was posted.
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.
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected
to the EEO process and exhibit an intent to begin the EEO process.
Allen v. United States Postal Service, EEOC Request No. 05950933 (July
9, 1996). Although complainant spoke with a counselor in May 1999, he
did not exhibit any intent to proceed with the process. Complainant did
not speak with a counselor again until November 8, 1999. Accordingly,
the Commission finds that he did not establish EEO Counselor contact
for timeliness purposes until November 8, 1999.
Complainant argues for tolling the time limit to account for his
hospitalization and FMLA leave. We have consistently held, in cases
involving physical or mental health difficulties, that an extension is
warranted only where an individual is so incapacitated by his condition
that he is unable to meet the regulatory time limits. See Davis
v. United States Postal Service, EEOC Request No. 05980475 (August
6, 1998). Claims of mental incapacity must be supported by medical
evidence of incapacity. See Crear v. United States Postal Service, EEOC
Request No. 05920700 (October 29, 1992) (claimant's argument that she
suffered from depression and could file only after obtaining treatment
from a psychiatrist, was not enough to show incapacity); see also Sohal
v. United States Postal Service, EEOC Request No. 05970461 (April 24,
1997) (letter from psychologist stating that claimant's �continuous
and unrelenting� depression rendered him unable to make decisions,
and that his medication further affected his cognitive abilities, was
sufficient to prove incapacity). Evidence that a claimant suffered
great mental stress, and obtained treatment for that stress, is not
enough to prove incapacity. See Galbreath v. Department of the Navy,
EEOC Request No. 05980927 (November 4, 1999).
In the present case, complainant claims to have been incapacitated,
and hospitalized for stress-related illnesses. Complainant presents no
medical evidence, nor any proof of hospitalization to support his claims.
Therefore, the Commission finds no reason to toll the forty-five day time
limit with regard to claims (1) and (2). Further, even if the Commission
tolled the time limits from June 7, 1999 through September 7, 1999,
complainant's November 8, 1999 contact would be untimely. Accordingly,
the Commission finds that the agency's dismissal of claims (1) and (2)
for untimely counselor contact was proper.
The regulation set forth at 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 21, 1994).
The Commission has held that a complainant not eligible for career ladder
promotion, but who claims harm from the agency's failure to promote
without reference to competitive promotions, has failed to state a claim.
See Limle v. Department of Veterans Affairs, EEOC Appeal No. 01944678
(March 8, 1995); Reese v. Department of the Navy, EEOC Appeal No. 01930497
(March 17, 1993). In claim (3), complainant alleges harm from the
�disparity� of his GS-11 salary versus that of his GS-12 co-workers.
However, complainant is not eligible for career ladder promotion; he
must compete for promotion to a GS-12 position. Therefore, claim (3)
is not cognizable as an independent claim of discrimination.
Finally, the Commission notes that complainant raised several claims not
addressed with an EEO Counselor. Inasmuch as complainant identified other
incidents of alleged discrimination, he must initiate EEO counseling
regarding any new allegations within 15 days after he receives this
decision, if he wishes to pursue them and he has not already done so. The
agency is advised that if complainant seeks EEO counseling regarding
any new allegations raised on appeal within the above 15-day period,
the date complainant filed the appeal statement in which he raised these
allegations shall be deemed to be the date of the initial EEO contact,
unless complainant previously contacted an EEO Counselor regarding these
matters. If there has been a previous contact, the earlier date would
serve as the EEO counselor contact date. Qatsha v. Department of the Navy,
EEOC Request No. 05970201 (January 16, 1998); Parker v. Department of
the Army, EEOC Request No. 05960025 (August 29, 1996).
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 11, 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 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.