Val F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 8, 20192019000997 (E.E.O.C. Feb. 8, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Val F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019000997 Agency No. 200J05892018105040 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 20, 2018, 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. BACKGROUND During the period at issue, Complainant worked as an Air Conditioner Equipment Mechanic, GS-10 at the Agency’s Kansas City VA Medical Center in Kansas City, Missouri. On July 28, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency subjected him to discrimination and a hostile work environment based on race, disability, and in reprisal for prior protected EEO activity when: on June 19, 2018, the Team Lead instructed Complainant to work in a crawl space area that all employees were told to avoid. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019000997 2 In its August 20, 2018 final decision, the Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the alleged June 19, 2018, incident was not sufficiently severe or pervasive to set forth an actionable claim of harassment. The instant appeal followed. On appeal, Complainant argues that the work assignment was issued in reprisal Complainant’s prior EEO activity. Complainant further argues that management was aware of his health condition and the job assignment was in a hazard area. ANALYSIS AND FINDINGS 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The alleged incident is not sufficiently severe or pervasive to set forth an actionable claim of harassment. Here, Complainant was asked on one occasion to work in a crawl space. We have held that claims of an isolated incident of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). The alleged incident is of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc, 523 U.S. 75, 81 (1998). Additionally, there is nothing in the record reflecting that that Complainant even completed the task assigned on June 19, 2018. Here, Complainant emailed the responsible management official (“RMO”) and a union official on June 19, 2018 that he was not comfortable working in the subbasement crawl space due to his health condition. The RMO responded to Complainant’s concern the same day and stated in an email that he instructed Complainant to notify him when he is assigned a job he “doesn’t feel comfortable doing.” The RMO also suggested that Complainant submit a reasonable accommodation request as Complainant’s medical issues were undocumented. Finally, the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). 2019000997 3 The Agency’s final decision dismissing the formal complaint for the reason discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610) 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 2019000997 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 8, 2019 Date Copy with citationCopy as parenthetical citation