01a52906
07-20-2005
Luanne A. Wilson, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Luanne A. Wilson v. Department of Veterans Affairs
01A52906
July 20, 2005
.
Luanne A. Wilson,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52906
Agency No. 200L-0596-2005100840
DECISION
Complainant filed a timely appeal with this Commission from the final
agency's decision (FAD), dismissing her 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. In her complaint
dated January 27, 2005, complainant alleged that she was subjected to
discrimination on the bases of race (Caucasian) and sex (female) when:
(1) on or about November 17, 2004, an investigation into complainant's
Service line occurred; and (2) on or about October 19, 2004 during
the Logistics Manager's conference call, the Acting Director (AC)
acted as he knew nothing about the investigation, and on December 21,
2004, complainant learned that he wrote the statement of work for the
investigative team. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
In its final decision, the agency dismissed complainant's complaint for
failure to state a claim. Specifically, the agency found that complainant
has failed to provide any evidence that would suggest that she suffered a
personal loss or harm with respect to a term, condition, or privilege of
employment as a result of the investigation or AC's comments. The agency
also determined that complainant's claim constitutes a harassment claim;
however, the agency found that there were no severe or pervasive enough
to alter complainant's condition of employment.
In determining whether a harassment complaint states a claim in cases
where complainant has not alleged disparate treatment regarding a specific
term, condition or privilege of employment, the Commission has repeatedly
examined whether a complainant's harassment claims, when considered
together and assumed to be true, were sufficient to state a hostile
or abusive work environment claim. See Estate of Routson v. National
Aeronautics and Space Administration, EEOC Request No. 05970388 (February
26, 1999).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
req. for recons. den. EEOC Request No. 05970995 (May 20, 1999). Also,
the trier of fact must consider all of the circumstances, including the
following: the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's
work performance. Harris, 510 U.S. at 23.
In the instant matter, complainant failed to show that the agency
subjected her to any adverse action. Specifically, the record shows that
during the week of October 25-29, 2004, a site visit was conducted at
the Cooper Division in Lexington, Kentucky. The purposes of the visit
was to identify customer service issues that have been reported recently
to the Executive Leadership Counsel (ELC). The record also shows that a
review of complainant's division was also conducted. The record further
reveals that as a part of the review, customers and staff throughout
the medical center were interviewed regarding service satisfaction.
We conclude that these incidents nor AC's comments were not sufficiently
severe or pervasive to support a claim of discriminatory harassment.
Moreover, the Commission finds that the complaint fails to state a claim
under the EEOC regulations because complainant failed to show that she
suffered harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Accordingly, the
agency's final decision dismissing complainant's complaint 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
July 20, 2005
__________________
Date