01a51193
03-11-2005
Carol A. Brininstool, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Carol A. Brininstool v. Department of Veterans Affairs
01A51193
March 11, 2005
.
Carol A. Brininstool,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51193
Agency No. 200J-0515-2004103931
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed in a final agency decision (FAD) dated October 27,
2004. The complainant claimed that she was subjected to discrimination
on the basis of reprisal for prior EEO activity when (1) on August 4,
2004, an employee told her to use a different copy machine and then
moved a stapler two feet from the complainant, and (2) her privacy was
violated in February 2003.
The FAD dismissed claim 1 for under 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. It reasoned that the complainant was not
harmed. The FAD dismissed claim 2 under 29 C.F.R. � 1614.107(a)(2)
on the grounds that the complainant failed to meet the 45 calendar day
time limit to seek EEO counseling on the matter.<1>
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive� and the complainant subjectively perceives it as such.
Harris, supra at 21-22.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). Claim 1, as factually described by the complainant, consists of
a minor workplace dispute with an employee over the use of a photocopier
and stapler. This was not sufficiently severe, as a matter of law,
to create an actionable claim.
The complainant contacted an EEO counselor on August 17, 2004.
The complainant has not explained why she waited about 1� years to
contact an EEO counselor after the event in claim 2 occurred, and there
is no information in the record which would excuse such a long delay.
Accordingly, the FAD's dismissal of claims 1 and 2 is affirmed.
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 (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
March 11, 2005
__________________
Date
1The FAD also dismissed claim 2 on the grounds that the complainant
did not raise the matter with an EEO counselor and it was not like or
related to a matter she raised with the EEO counselor and failure to
state a claim. We decline to rule on these grounds of dismissal.