01a60928
04-12-2006
Peggy De La Torres v. Department of Veterans Affairs
01A60928
April 12, 2006
.
Peggy De La Torres,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60928
Agency No. 2001-0521-2005103338
DECISION
Upon review, the Commission finds that complainant's formal complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
On September 27, 2005, complainant, a registered nurse at the agency's
Birmingham VA Medical Center, filed a formal EEO complaint. Therein,
complainant claimed that she was the victim of unlawful employment
discrimination on the basis of race (Caucasian).
On October 7, 2005, the agency issued a final decision. The agency
found that complainant's complaint was comprised of the following claim:
On June 12, 2005, you were told by co-workers that a patient which you
were assigned �likes white women, and not black women� and suggested
you take him home with you because �your husband won't mind since the
patient will do whatever you want him to do.�
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). In general, remarks or comments
unaccompanied by a concrete agency action are not a direct or personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. To the extent that complainant is alleging that the
remarks constituted unlawful harassment, the Commission notes that unless
the conduct is severe, a single incident or group of isolated incidents
will not be regarded as discriminatory harassment. 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
April 12, 2006
__________________
Date