01A42271_r
09-28-2004
Thoppe Subramanian, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Thoppe Subramanian v. Department of Veterans Affairs
01A42271
September 28, 2004
.
Thoppe Subramanian,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42271
Agency No. 2004-0659-2002102435
Hearing No. 140-2003-08042X-WMS
DECISION
Complainant filed a timely appeal with this Commission from an agency
final order dated January 20, 2004, concerning the dismissal of the
captioned complaint, brought pursuant to 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. The Commission accepts the appeal. 29 C.F.R. �
1614.405.
Complainant, a Psychiatrist at the agency's Salisbury, North Carolina
Medical Center, filed a formal complaint on April 24, 2002, claiming
discrimination on the bases of age (D.O.B. May 7, 1940) and disability
(rheumatoid arthritis), concerning the agency's denial of his request
for a reassignment to the Winston-Salem Health Outpatient Clinic.
Complainant claimed that his request was initially approved, but that
during a March 18, 2002 conference call, among himself, the Chief of
the Salisbury Medical Center, and the Director of the Outpatient Clinic
(Director), the Director refused to accept complainant's transfer upon
learning that his disability would impede the number of patients he
could service per day. Complainant avers that the Director made the
following statement: �I don't want to see a disabled person at my clinic.
I would like to see a healthy person working at the clinic and seeing
more patients.�
The agency investigated the complaint, and at complainant's request,
transferred the case to an EEOC Administrative Judge (AJ) for a
hearing. On January 7, 2004, the AJ issued a decision, dismissing
the complaint for failure to state a claim. Specifically, the AJ
determined that complainant made a unilateral request for reassignment,
and that the possibility of a reassignment was discussed during the
aforementioned March 18, 2002 conference call. The AJ indicated that
the Director denied making the above referenced statement, and further
determined that the record failed to show that the agency was seeking
to reassign complainant, or that complainant applied for a position,
or that the agency sought applicants for a position. Therefore, the
AJ concluded that complainant failed to show that he was harmed by an
adverse employment action. Additionally, the AJ found that because
the Director's statement was not accompanied by a concrete action,
complainant was not rendered aggrieved. The agency's final action
adopted the AJ's dismissal, and the instant appeal followed.
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).
As an initial matter, we note that the record reflects that complainant's
claim concerns the agency's denial of a transfer request, made for
personal reasons, as opposed to a request for a reasonable accommodation
for his disability. Nonetheless, we find that the denial of a transfer
request for personal reasons, under the circumstances presented in this
case, affects a �term, condition, or privilege of employment,� and as
such, states a cognizable claim. See generally Murphy v. U.S. Postal
Service, EEOC Appeal No. 01A31032 (October 6, 2003).
Whether the transfer request had preliminary agency approval prior to
the March 18, 2002 conference call; or whether a transfer position
was available at the receiving facility, as a formal advertised
vacancy, or otherwise; or whether the Director made the �insensitive'
statement attributed to him by the complainant, are all matters which
go to the merits of the complaint, and are irrelevant to the procedural
issue of whether complainant set forth an actionable claim. See Osborne
v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996).
While the AJ made findings regarding these matters (which appear to
be in dispute) when dismissing the complaint, the only questions to
consider in deciding whether the complainant has set forth an actionable
claim are whether complainant claims that he is aggrieved and whether
the complaint alleges employment discrimination on a basis covered by
EEO statutes. If so, as in the instant complaint, then the complaint
must be adjudicated. See Odoski v. Department of Energy, EEOC Appeal
No. 01901496 (April 16, 1990).
In conclusion, for the reasons set forth above, we REVERSE the dismissal
of the captioned complaint, and we REMAND the case back to the agency
to request a hearing, as set forth more fully in the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Charlotte
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final. The
agency shall provide written notification to the Compliance Officer at
the address set forth below that the request and complaint file have
been transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
September 28, 2004
__________________
Date