01a00664
04-24-2000
Julie Singer, )
Complainant, )
)
v. ) Appeal No. 01A00664
) Agency No. 99-1161
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On October 21, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
September 25, 1999, pertaining to her 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>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to state a claim, failure to contact an
EEO Counselor and for raising issues already decided by the agency.
BACKGROUND
The record reveals that on June 26, 1998, complainant initiated contact
with an EEO Counselor. During the counseling period, complainant stated
that she was being harassed and retaliated against. As examples of
harassment and reprisal, complainant stated the following incidents:
On June 26, 1998, a notice was posted stating � If you sleep with your
supervisor you can steel from the Veterans and the VA hospital and you
won't be punished for the crime. If you do not believe it just ask E1
the chief of engineering, and
On May 18, 1998, C1 from the Police and Security Service spoke with
complainant in her office and told her she was being charged and made
an accusation about her. Upon leaving, C1 stated �behave yourself
young lady�.
Counseling failed, and on September 2, 1998, complainant filed a formal
complaint claiming that she was the victim of unlawful employment
discrimination on the bases of her gender (female), religion(Jewish)
and reprisal (prior EEO activity). The formal complaint was comprised
of the following nine allegations:
On June 26, 1998, a notice was posted stating � If you sleep with your
supervisor you can steel from the Veterans and the VA hospital and you
won't be punished for the crime. If you do not believe it just ask E1
the chief of engineering;
On May 18, 1998, C1 from the Police and Security Service spoke with
complainant in her office and told her she was being charged and made
an accusation about her. Upon leaving, C1 stated �behave yourself
young lady�;
On January 31, 1998, the AFGE President refused to schedule regular
meetings with complainant;
On February 26, 1998, the AFGE President, during a meeting with
complainant appeared disinterested;
On March 28, 1998, the AFGE President and the Chief Steward welcomed
interruptions during a meeting with complainant and had nothing
constructive to add;
On April 20, 1998, the AFGE President failed to show up for a scheduled
meeting and he also failed to reschedule such;
On April 28, 1998, three unfair labor practices (ULPs) were filed
against the engineering service;
On May 22, 1998, the Chief of Engineering Services informed complainant
that an employee was taking photographs of her without her knowledge;
and
From May 1998 through November 1998, complainant was not allowed to
conduct an investigation of a subordinate who was charged with misconduct
because of a perceived relationship complainant had with the accused.
ANALYSIS AND FINDINGS
Volume 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). In this case, the Commission finds that with respect to
claims one and two, complainant fails to state a claim. Specifically,
complainant has failed to show that she is an �aggrieved employee� with
regards to these allegations. Accordingly, the agency properly dismissed
these claims for failure to state a claim.
Moreover, even when viewing claims one and two within the context of a
harassment complaint, claims one and two still fail to state a claim.
The Commission notes, it is well-settled that, unless the conduct
is very severe, a single incident or a group of isolated incidents
will not be regarded as creating a discriminatory work environment.
See James v. Department of Health and Human Services, EEOC Request
No. 05940327 (September 20, 1994); Walker v. Ford Motor Company, 684
F.2d 1355 (11th Cir. 1982). In the instant complaint, we find that
complainant failed to show that she suffered harm with respect to the
terms, conditions or privileges of her employment as a result of claims
one and two. Therefore, standing alone, claims one and two fail to
state a claim. Additionally, even when viewed within the context of a
claim of harassment and in a light most favorable to complainant, claims
one and two are too isolated and insufficiently severe to establish a
hostile work environment. Consequently, claims one and two were properly
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)), for failure to
state a claim.
As a final matter, the Commission finds that the agency properly dismissed
claims three through nine for failure to raise those allegations with
an EEO Counselor. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,
in pertinent part, that an agency shall dismiss a complaint which raises
a matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990). In this case, claims three through nine
were not brought to the attention of an EEO counselor and are not like
or related to claims one and two. Moreover, claims three through nine
do not clarify the original claims or could they have been reasonably
expected to grow out of the original claims during their investigation.
Therefore, the Commission finds the agency properly dismissed these
claims for failure to raise the claims with an EEO Counselor.<2>
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
final decision of the agency.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
April 24, 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 Equal Employment Assistant1On 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.
2Since the Commission has AFFIRMED the agency decision on the grounds
of failure to state a claim and for not raising claims with an EEO
Counselor, the Commission will not address the agency's alternative
ground for dismissal.