01a51285
03-15-2005
Ronald M. Yonemoto, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Ronald M. Yonemoto v. Department of Veterans Affairs
01A51285
03-15-05
.
Ronald M. Yonemoto,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51285
Agency No. 200N-0459-2004103114
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim. In a complaint dated July 21, 2004, complainant alleged
that he was subjected to discrimination on the bases of race (Asian),
sex (male), age (DOB: 9/10/47) and in reprisal for engaging in prior EEO
activity when (1) his job duties were changed; and (2) he was placed in
a hostile working environment.
With respect to claim (1), the agency found that complainant failed to
state a claim because he did not demonstrate that he experienced any
concrete effect on his employment status. The agency stated that, �[i]t
is not evident that the loss of responsibility for one project had any
significant effect upon your primary job functions and responsibilities.�
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). Here, complainant maintains that, because
of his race, sex, age and previous EEO activity, management removed a
duty assignment from him. Without addressing the merits of his claim,
we find that complainant has stated a claim. In Cobb v. Department of the
Treasury, EEOC Request No. 05970077 (March 13, 1997), the Commission held
that, �terms, conditions, or privileges of employment include, inter alia,
promotion, demotion, discipline, reasonable accommodation, appraisals,
awards, training, benefits, assignments, overtime, leave, tours of duty,
etc. A complaint which alleges unlawful disparate treatment regarding
a specific term, condition, or privilege of employment should not be
dismissed for failure to state a claim. Id.
Consequently, we REVERSE the agency's dismissal of claim (1).
With respect to claim (2), the agency found that complainant failed
to state a claim of harassment or establish that he was subjected to a
hostile work environment. Complainant, in support of his claim, noted
the following allegations:
2(a). On May 21, 2004, A-1, Administrative Support Coordinator, sent an
e-mail to staff notifying them that, effective immediately, complainant
would not be handling VHA to VBA conversion and that they were not to
include him on messages;
2(b). On May 23, 2004, A-1 sent another e-mail instructing staff to
exclude complainant from messages and not to seek his guidance, etc.;
2(c). On May 26, 2004, A-2, the Director, failed to respond to
complainant's e-mail in which he asked for clarification on who had
responsibility for the VHA/VBA project;
2(d). On June 1, 2004, an agency official refused to provide him with
information and told him that he had been informed that the task of
coordination had been reassigned to A-1;
2(e). On June 2, 2004, an agency official refused to open a �high
importance� e-mail from complainant;
2(f). On June 3, 2004, an agency official falsely told him that she
was not aware of the reassignment of the coordination task;
2(g). On June 4, 2004, A-1 refused to open an e-mail from him in which
he questioned whether A-2 was aware that she was handling the VHA/VBA
project; and
2(h). On June 23, 2004, A-1 excluded him from a farewell celebration
for one of her staff members, although she invited the rest of the
Director's staff.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
After a review of the record, we find that allegations 2(a) - 2(g)
state the same claim as that set forth in claim (1), which will be
remanded for investigation. Allegations 2(a) - 2(g) are inextricably
intertwined with claim (1) and cannot properly be bifurcated; therefore,
they should never have been fragmented and treated as separate from
claim (1) because they involve the consequences of the alleged act of
discrimination.<1> Consequently, allegations 2(a) - 2(g) are dismissed
as separated allegations of discrimination. Assuming, arquendo, that
complainant is able to establish discrimination with regard to claim
(1), he may be entitled to compensatory damages to compensate him for
losses or suffering inflicted as a consequence of the agency's conduct.
With respect to allegation 2(h), we find that complainant has not
established that he was aggrieved.
We find no persuasive evidence that complainant's exclusion from a
farewell celebration for a staff member caused complainant to suffer a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Therefore, we find that this
allegation was properly dismissed.<2>
Consequently, we AFFIRM the agency's dismissal of claim (2).
ORDER (E0900)
The agency is ordered to process the remanded claim 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
____03-15-05______________
Date
1We find the situation analogous to an employee
filing a complaint alleging discrimination when (1) he was terminated
from his position; and (2) because of his termination, management refused
to allow him to return to the workplace.
2Because of our decision above regarding allegations 2(a) - 2(g), we
do not find it necessary to address the dismissal of claim (2) on the
grounds that it failed to state a claim of harassment.