01A21119_r
12-12-2002
Robert L. Burger, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert L. Burger v. Department of Veterans Affairs
01A21119
December 12, 2002
.
Robert L. Burger,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21119
Agency No. 200J-0538-2001122050
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 21, 2001, dismissing 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his EEO complaint filed on July 3, 2001, complainant alleged that
he was subjected to discrimination on the bases of sex, disability,
and in reprisal for prior EEO activity when:
2(a) the agency convened an Administrative Board of Investigation (BOI)
two years after conduct that could be interpreted as sexual harassment
was identified. Complainant's coworker brought the allegation of sexual
harassment against him on or about April 2001;
(b) A co-worker and the Chief of IRM go off site and travel together.
In addition, complainant alleges that the co-worker told him that she
has been in the Chief's office with the lights off (April 2001);
(c) Complainant and [coworker] were not required to have a Fitness
for Duty Examination. A recent hire was required to have such an
examination; and
(d) Complainant's work-weight-lifting restriction was increased from
20 pounds to 40 pounds. In its final decision, the agency elaborated
this claim by stating that according to information contained in the
complaint file (and provided by complainant) complainant approached
his Supervisor and advised him that he had a work-weight-lifting
restriction. The Supervisor took the letter that complainant gave him
from the Department of Labor, to Human Resources, acting in accord
with complainant's concern that management be aware. In an effort to
bring complainant's OPF up to date, complainant was requested to take a
physical to identify his current condition. Complainant was allowed to
be examined by his personal physician and the result of that evaluation
was subsequently implemented (April 2001).
The agency dismissed the complaint for failure to state a claim.
In regard to claim 2a, the agency stated that according to Paragraph 7
of VHA Handbook, the agency is authorized to convene a BOI in instances
where appropriate. Regarding claims 2b through 2d, the agency stated that
complainant failed to show he suffered personal loss or harm with respect
to a term, condition or privilege of employment. Further, the agency
determined that 2d was acted upon by management at complainant's request.
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).
Regarding claim 2a, the Commission finds the agency properly dismissed
claim 2a for failure to state a claim. The Commission has previously
held that being subject to an investigation alone does not render an
individual aggrieved under the EEOC regulations. See Johnson v. Department
of the Navy, EEOC Request No. 05960699 (April 16, 1998); Mattocks
v. Department of the Navy, EEOC Request No. 05950549 (August 29, 1996).
In respect to claims 2b and 2c, the mere travel plans of [coworker] and
the Chief of IRM and the required Fitness-for-Duty examination for the
new hire do not demonstrate a harm to a term, condition or privilege of
complainant's employment. Therefore, the Commission finds the agency
properly dismissed claims 2b and 2c for failure to state a claim.
Moreover, a review of the record reflects that the matters in question
identified in claims 2a - 2c are not sufficient to support a claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Regarding claim 2d, however, the Commission finds that this matter states
a claim. The Commission determines that complainant's claim that his
work-weight-lifting restriction was increased alleges a personal loss
or harm regarding a term, condition, or privilege of complainant's
employment.
Accordingly, the agency's final decision dismissing claims 2a - 2c
was proper and is AFFIRMED. The dismissal of claim 2d is REVERSED.
Claim 2d is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim (claim 2d) in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
December 12, 2002
__________________
Date