01a46184
03-24-2005
Lucy Lewis, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Lucy Lewis v. United States Postal Service
01A46184
March 24, 2005
.
Lucy Lewis,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A46184
Agency No. 200H-0670-2004101624
DECISION
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 a complaint dated March 29, 2004, complainant alleged
that she was subjected to a hostile work environment on the bases of
her disability (obesity) and in reprisal for prior EEO activity when:
she was given a reprimand on December 4, 2003;
On February 19, 2004, the Chief of Nutrition and Food Service allowed
another supervisor to change the duty assignment of one of her
subordinates;
On February 27, 2004, the Chief, of Nutrition and Food Service falsely
accused the complainant of not briefing another supervisor about safety
issues;
On February 28, 2004, the Chief of Nutrition and Food Service allowed
another supervisor to award his employees with supervisory excused time
off but informed her that she did not have the same authority.
The agency dismissed claim 1 on the grounds that it was not timely
raised to an EEO counselor. Specifically, the record reflected that
complainant sought EEO counseling on February 19, 2004, regarding an
incident which occurred on December 4, 2003. The agency concluded this
was well outside of the 45 days required by the Commission's regulations
for initiating counselor contact.
As to the remaining claims, the agency found that they failed to state a
claim of harassment because they were not sufficiently severe or pervasive
as to alter the terms and conditions of complainant's employment.
On appeal, complainant claims that the agency erred in dismissing her
complaint. She states that ever since she filed an EEO complaint on
April 3, 2002, her supervisor has been harassing her and treating her
differently than her male co-supervisors. She claims that the harassment
has continued to the present time but she did not outline any additional
incidents.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Here, complainant asserted that a written reprimand that her supervisor
gave her on December 4, 2003, was discriminatory, yet she did not contact
an EEO counselor until February 19, 2004. Although complainant claims
she was subjected to a hostile work environment, this incident was a
discrete act which should have been brought to the attention of an EEO
counselor within 45 days of its occurrence. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101(2002). Therefore, we conclude this claim
was not timely raised and the agency's dismissal was proper.
Turning to complainant's claim of a hostile work environment, we
determine whether a harassment complaint states a claim of hostile work
environment by examining 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 cause of action if
the discriminatory conduct was so severe or pervasive that it created a
work environment abusive to employees because of their protected class.
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. Id.; see also Flowers v. Southern Reg. Phys. Svc.,
247 F.3d 229 (5th Cir. 2001).
The Commission has stated that claims of a few isolated incidents of
alleged harassment usually are not sufficient to state a harassment claim.
See Phillips v. Department of Veterans Affairs, EEOC
Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services,
EEOC Request No. 05940481 (February 16, 1995).
The Commission concludes that complainant has not asserted facts which,
even if true, meet these standards for stating an actionable claim.
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
March 24, 2005
__________________
Date