01A43381_r
09-15-2004
Richard A. Jackson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Richard A. Jackson v. Department of Veterans Affairs
01A43381
September 15, 2004
.
Richard A. Jackson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A43381
Agency No. 200H-0642-2004101397
DECISION
Complainant filed an appeal with this Commission from a March 23,
2004 agency decision, dismissing his complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim. The agency also dismissed
claim (d) on the alternative grounds of failure to initiate contact with
an EEO Counselor in a timely manner.
In its decision, the agency defined the complaint as whether complainant
was subjected to discriminatory harassment on the bases of sex (male),
age (D.O.B. November 8, 1948), and reprisal for prior EEO activity when:
a. On January 21, 2004, complainant was provided a letter of abeyance
of his proposed termination;
b. On October 9, 2003, management stated that complainant drew the
wrong patient's blood;
c. On July 18, 2003, there was an altercation with an employee and the
agency's Medical Center police was summoned;
d. On November 21, 2003, complainant was informed that a test of his
blood on September 12, 1994, found complainant positive for hepatitis C.
The record contains an October 16, 2003 copy of a notice of proposed
removal. The notice reveals that complainant was issued the proposed
removal because of the following: (1) on October 9, 2003, he drew blood
from a patient and failed to confirm the identity of the patient which
resulted in an error; (2) on July 18, 2003, he engaged in disrespectful
conduct toward a supervisor; and (3) on July 18, 2003, he was instructed
to leave the Medical Center but left and returned and was physically
removed by agency police.
Also contained in the record is a copy of a last chance or abeyance
agreement. The abeyance agreement is unsigned. Among other things, the
terms of the agreement reflect that a decision had been made to remove
complainant from employment but also noted that his removal would be held
in abeyance for one year, effective January 26, 2004. The terms also
reflect that one of the conditions of the agreement was that complainant
was to be suspended from January 26, 2004, through January 30, 2004.
In its decision dismissing the complaint, the agency indicated that the
alleged discriminatory incidents did not rise to the level of a claim
of harassment. In addition, the agency stated that individually, claims
(a), (b), and (c) did not state a claim because complainant had not
shown a change in his working conditions or that he had suffered a harm.
Regarding its dismissal of claim (d) on alternative grounds, the agency
stated that complainant had not provided adequate justification to extend
the 45-day time limitation for initiating timely EEO Counselor contact.
Upon review, the Commission concludes that the claims, considered either
together or separately, do not state a claim. The Commission finds that
the claims, considered as a whole, fail to state a claim of harassment
because the alleged actions were not sufficiently severe or pervasive
so as to alter the conditions of complainant's employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Claim (a) does not
state a claim because there is no evidence that complainant was either
suspended or removed from his employment, thereby suffering an adverse
employment action. Moreover, the Commission notes that EEOC Regulation
29 C.F.R. � 1614.107(a)(5) provides for the dismissal of a complaint
where the complaint alleges that a proposal to take a personnel action,
or other preliminary step to taking a personnel action is discriminatory.
The Commission also finds that claims (b) and (c) do not raise distinct
and independent claims but are part and parcel of claim (a). The record
reveals that claims (b) and (c) arose out of the actions that led to the
notice of proposed removal. Claim (d) does not state a claim because
complainant has not shown how he was harmed by the agency's alleged
action in providing him with the results of a blood test. The Commission
notes that 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).
Accordingly, the agency's decision 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
September 15, 2004
__________________
Date