01A63697
10-12-2006
Nancy K. Thorbs, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Nancy K. Thorbs,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A63697
Agency No. 2003-0554-2006101025
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 2, 2006, 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.
On March 23, 2005, while on maternity leave, complainant received a letter
from the Chair of the Advanced Practice Peer Review Board stating that her
progress notes were audited. It noted that complainant was not a Licensed
Independent Practitioner (LIP) and her notes required a signature of a
supervising clinician. Complainant believed that the letter was erroneous
for she had obtained LIP status in 2003. Complainant took steps to correct
her LIP status. On November 29, 2005, the Associate Director for
Patient/Nursing Services issued complainant a Memorandum entitled
"Noncompliance with Non-LIP Status." The Memorandum stated that
complainant was not in compliance with the agency's policies requiring co-
signatures by a supervising physician for her Non-LIP notes. Complainant
was instructed to comply with the requirements based on her Non-LIP status.
The Memorandum also stated that failure to comply with the requirements
would result in suspension and even termination. On December 9, 2005, the
Chairperson of the Peer Review Board issued a notice to the Personnel
Management Specialist stating that complainant fulfilled all of the
qualifications to hold the position as an LIP. Therefore, the Chairperson
recommended complainant's appointment to LIP status effective December 6,
2005.
Complainant contacted an EEO Counselor on January 12, 2006. When the
matter could not be resolved informally, complainant filed her EEO
complaint. In her complaint, complainant alleged that she was subjected to
a hostile work environment on the basis of sex (female) when, on November
29, 2005, she was issued the Memorandum.
The agency dismissed the complaint for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1). The agency noted that complainant failed to
show that she was aggrieved by the Memorandum. Complainant appealed
asserting that she was harmed. Complainant contends that she was harassed
and subjected to a hostile work environment because she was forced to
duplicate the lengthy credentialing process for her LIP status.
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. 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. Thus, not all claims of harassment are
actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment, a
claim of harassment is actionable only if, allegedly, the harassment to
which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
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).
Upon review, we find that complainant has not shown that the alleged events
were sufficiently severe or pervasive to alter the conditions of her
employment. Therefore, we determine that the agency's dismissal of the
complaint was appropriate.
Accordingly, we AFFIRM the agency's final decision.
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
October 12, 2006
__________________
Date