01A23215
09-06-2002
John R. Sanzari, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John R. Sanzari, Jr. v. Department of Veterans Affairs
01A23215
September 6, 2002
.
John R. Sanzari, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23215
Agency No. 2003-0501-2002102172
DECISION
Complainant filed an appeal with this Commission from an agency decision
dismissing his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e 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 in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on sex, age, and national origin. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, on April 19,
2002, complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
Complainant was harassed and subjected to hostile work environment when:
1. The Chief Medical Officer (hereinafter "CMO"), in a series of
incidents, sought to demean, humiliate and undermine the complainant
who is the facility Human Resources Officer, as follows:
Beginning on July 17, 2000, when the Network Director requested a
review of the Human Resources program at the complainant's facility,
the CMO instructed a subordinate to gather derogatory information about
complainant from a former facility employee, who told the reviewers that
"other people" had told her that "he [complainant] raises his voice at
people" and that other people had told her it is his "Italian temper";
(b) Beginning on July 17, 2000, when the Network Director requested
a review of the Human Resources program at the complainant's facility,
the CMO's subordinate told the Chief of Psychology that, "this is your
time to gather documentation against him [complainant]";
(c) In August 2000, when an interim Chief Executive Officer was
appointed, the CMO sought to have the complainant removed from his
position;
(d) In 2001, the CMO made false accusations and uttered fabrications
to the newly appointed Chief Executive Officer about the complainant's
performance and conduct;
(e) From April 2001 onward, the CMO has complained to the complainant's
supervisor about shortcomings in the complainant's performance and
conduct;
(f) Subsequent to the teleconference on September 20, 2001, the CMO told
the complainant's supervisor that the complainant had not cooperated
with one of the CMO's subordinates when she asked the complainant a
question at the teleconference;
(g) On December 20, 2001, at a Resource Committee meeting, the CMO
said to the complainant in front of the committee "I take issue with
your remark that it does not involve patient care";
(h) On March 7, 2002, at a Resource Committee Meeting, the CMO implied
that the complainant was obstructing the recruitment process when she
stated that the complainant's staff had told her there was no funding
to publish recruitment advertisements in medical journals;
(i) Subsequent to the March 7, 2002 Resource Committee meeting, an
employee from the CMO's office told complainant that the CMO stated that
"[Complainant] has been here too long and should retire."
2. The CMO harasses other male employees as follows:
(a) On an unspecified date, the CMO denied a male physician appointment
as Chief of Surgery;
(b) On unspecified dates, the CMO has discriminated against the Chief
Fiscal Officer.
The agency issued a decision dismissing the complaint for failure to state
a claim. The agency reasoned that complainant did not indicate that he
suffered a personal loss or harm to a term or condition of his employment.
The agency found that the report by third parties about comments made,
in reference to complainant's "Italian temper" and need to retire,
did not rise to the level of a hostile or harassing work environment.
Further, the other events described did not result in a disciplinary
or other adverse action. Lastly, the agency noted that with respect to
claims 2(a) and (b), that claims filed on the behalf of other individuals
does not state a claim.
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).
Here, complainant contends that he was subjected to a hostile work
environment created by the CMO. In support of his claim, complainant
describes several incidents. Complainant asserts, for example,
that subordinates were told to gather derogatory information, that
false accusations were made about his performance, and that it was
"implied" that complainant was obstructing the recruitment process.
However, complainant has not established that the alleged events
resulted in a personal harm or loss to a term, condition or privilege
of his employment. Further, we do not find that the events described
by complainant are sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Finally, with regard to
the incidents raised in claim 2, complainant has failed to show how he
was personally aggrieved as a result.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was proper and is hereby 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
September 6, 2002
__________________
Date