0120121072
05-22-2012
Nicole Golder, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nicole Golder,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120121072
Agency No. 200J-0583-2011104496
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 13, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a GS-9, Information Technology Specialist at an Agency's facility in Indianapolis, Indiana. On October 17, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race and in reprisal for prior protected activity when:
On July 25, 2011, she was threatened and subjected to intimidation from a Labor Relations Specialist.
Pre-complaint documents reflect that Complainant claimed that she attended a meeting on July 25, 2011, as a representative of a bargaining unit employee, when a Human Resources Representative arrived late. Complainant and the representative engaged in a conversation regarding the tardiness of another employee to the meeting, when Complainant purportedly stated that it was "not fair for you to rush us...;" to which the Human Resources Representative allegedly became increasingly confrontational. Complainant indicated that after she said "you don't tell me what to do," the Human Resources Representative responded "Yes, I do. Would you like to step outside?"
On December 13, 2011, the Agency issued a final decision. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a) (1) . The Agency stated that Complainant did not suffer a personal loss or harm with regard to a term, condition of privilege of her employment with the Agency.
CONTENTIONS ON APPEAL
On appeal Complainant claims that she suffered a personal harm in that she was the victim of work place violence and the Agency failed conduct a proper investigation of her complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. Section 1614.107 (a) (1) provides that an agency shall dismiss a complaint that fails to state a claim under Section 1614.103.
The Commission finds that the formal 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover, we find that the claim, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Also, the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Finally, we note that on appeal, Complainant argues that the Agency handled her complaint improperly. Complainant argues that "[S]pecifically, the Agency did not investigate my complaint." However, under our regulations a complainant is not entitled to an investigation, or provided an opportunity to request a hearing at this stage of the EEO complaint process. It is only when issues have been accepted for investigation that they move to an investigation. See Foster v. Department of Defense, EEOC Appeal No. 01A61070 (June 22, 2006).
The Agency's final decision dismissing Complainant's formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 22, 2012
__________________
Date
2
0120121072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121072