Andrew W. Harris, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 15, 2001
01997089 (E.E.O.C. Feb. 15, 2001)

01997089

02-15-2001

Andrew W. Harris, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Andrew W. Harris v. Department of Veterans Affairs

01997089

February 15, 2001

.

Andrew W. Harris,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01997089

Agency No. 99-1646

DECISION

I. INTRODUCTION

On August 11, 1999, the agency dismissed complainant's claims of

discrimination in Agency No. 99-1646. Complainant timely appealed the

dismissal to this Commission. On appeal, complainant argues that he and

his representative raised all of the issues from his formal complaint

with the EEO Counselor.

II. BACKGROUND

In February and March 1998, complainant filed formal complaints alleging

harm on the bases of race (African-American), color (black), and in

reprisal for prior EEO activity when he received substandard treatment

from agency physicians, and was removed from a Vocational Rehabilitation

Program work-study job. The agency dismissed these complaints on October

13, 1998, and complainant appealed in EEOC Appeal No. 01991787.

Complainant filed a separate formal complaint on January 26, 1999,

alleging harm from nonselections, harassment from August 1997 to

present, a January 1998 performance appraisal, and time/attendance

issues from January 1998. On March 10, 1999, the agency accepted a

claim of nonselection for Vacancy Announcement 98-053, but dismissed

the remaining claims for untimely counselor contact.

Meanwhile, complainant sought EEO counseling on March 4, 1999, Agency

No. 99-1646. In counseling, complainant discussed an altercation he

had with a Human Resources (HR) official. Complainant contends that he

went to drop-off a letter; when the official saw complainant he left his

office, crossed his arms, and glared at complainant. Complainant told

the official that he need not follow complainant and harass him, to which

the official responded, �this is my damn office.� The Counselor's Report

does not reference any other matter.

Complainant and the agency then entered into settlement agreements

dated April 16, 1999 and May 10, 1999. In both agreements, �Complainant

agree[d] to withdraw any and all active discrimination complaints.�<1>

On August 2, 1999, complainant filed a formal complaint for Agency

No. 99-1646, alleging harm in reprisal for prior EEO activity from:

Harassment August 1997 to present; Appraisal/proficiency report from

January 1998; Wrongful termination in January 1998 to June 1999; Refusal

to hire from September 1997 to June 1999; Refusal to accept complainant

into the Vocational Rehabilitation work-study program from September 1997

to June 1999; Defamation of character from August 1997 to the present;

and Violations of personal and medical privacy from January 1998 to

the present. Complainant also contended that the agency breached the

April and May 1999 settlement agreements.<2>

The agency dismissed Agency No. 99-1646 on August 11, 1999. In its

decision, the agency dismissed the harassment, performance appraisal,

and termination claims for having been raised in prior complaints.

The agency also dismissed the entire complaint, with the exception of

the counseled harassment incident, for not having been raised with an

EEO Counselor. The incident of harassment involving the HR official was

dismissed for failure to state a claim. The agency informed complainant

that his claim of breach would be handled in a separate decision.<3>

III. ANALYSIS AND FINDINGS

The agency may dismiss complaints that were not brought to the attention

of an EEO Counselor, and are not like or related to the matters raised.

See 29 C.F.R. � 1614.107(a)(2). The agency also may dismiss complaints

stating the same claim pending before or decided by the agency or

Commission. See 29 C.F.R. � 1614.107(a)(1).

The record clearly shows that complainant raised claims of harassment,

evaluation/performance appraisal, and termination in prior complaints.

Accordingly, the agency's dismissal of these matters was proper. Further,

the Commission finds that complainant only discussed a single incident

of harassment with the EEO Counselor; complainant provided no evidence

to suggest otherwise. The matters not discussed with the counselor

are not like or related to the issue raised in counseling. Therefore,

the agency's dismissal of these claims also was appropriate.

EEOC Regulations require the dismissal of complaints that fail to state

a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant

must allege harm to a term, condition, or privilege of employment on

the basis of race, color, religion, sex, national origin, age, disabling

condition, or reprisal for prior protected activity. Diaz v. Department

of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Hostile

work environment harassment is actionable if it sufficiently severe

or pervasive to alter the conditions of complainant's employment.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

The remaining incident of harassment is not severe or pervasive.

Although complainant has raised claims of harassment in other contexts,

they were the subject of settlement agreements, and involved different

officials, chains-of-command, time frames, and incidents. The single,

isolated incident discussed with the counselor in the present complaint

does not state a claim. Therefore, the agency properly dismissed the

remaining harassment claim.

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

February 15, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1As a result of the withdrawal in the settlement agreements, the

Commission administratively closed EEOC Appeal No. 01991787.

2Complainant filed his formal complaint in Agency No. 99-1646 after

signing the settlement. Therefore, the Commission finds that the

complaint is not subject to the withdrawal of active discrimination

complaints in the settlement agreement.

3The Commission will address the issue of breach in EEOC Appeal

No. 01A00935.