Richard A. Jackson, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionApr 15, 2004
01A41479_r (E.E.O.C. Apr. 15, 2004)

01A41479_r

04-15-2004

Richard A. Jackson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Richard A. Jackson v. Department of Veterans Affairs

01A41479

April 15, 2004

.

Richard A. Jackson,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A41479

Agency No. 200H-0642-2004100129

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision, dated December 4, 2003, pertaining to his 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. The

Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant contacted the EEO office regarding claims of discrimination

based on sex and reprisal. Informal efforts to resolve complainant's

concerns were unsuccessful.

On November 25, 2003, complainant filed a formal complaint claiming he

was harassed when:

1. On August 28, 2003, his supervisor stated in a meeting that he could

be HIV positive or a carrier seven years after being stuck by a needle.

2. On October 6, 2003, his supervisor slammed the door and locked it

after he knocked and opened the door, telling him "Don't come in my room."

The agency issued a final decision dismissing the complaint for failure

to state a claim. The agency found that the harassment claim was based

on two incidents, six and a half weeks apart, that were not severe.

Further, the agency found that there was no indication that complainant

suffered a change to his working conditions.

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. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss with

respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Complainant contends he was harassed when his supervisor said that he

could be HIV positive or a carrier after being stuck by a needle seven

years ago. Approximately a month later, the supervisor purportedly

slammed a door and told complainant not to come in. The Commission agrees

with the agency that the alleged incidents are not sufficiently severe

or pervasive to state a claim of discriminatory harassment. See Cobb

v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing the instant complaint is

hereby 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 15, 2004

__________________

Date