0120090739
04-16-2009
Victoria Muller, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Victoria Muller,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090739
Agency No. 200305012008103952
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 3, 2008, dismissing her 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.
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 September 18, 2008, complainant alleged that she was
subjected to hostile workplace discrimination on the bases of national
origin (Hispanic) and sex (female) when:
1) On October 30, 2007, her supervisor called a meeting and stated that
"We have to work our asses off this week".
2) On October 30, 2007, her supervisor sent an e-mail to her section
employees and stated, "Do not plan on a morning break".
3) On November 1, 2007, her supervisor sent an e-mail stating that she
would decide at the beginning of the day whether there was time for
breaks due to workloads.
4) On December 26, 2007, her supervisor sent an e-mail stating that
Coders had not met the assigned workload requirement and in order to
make the section's goal, staff should consider not taking breaks.
5) In the e-mail dated December 26, 2007, her supervisor provided personal
information regarding complainant's leave to another employee.
6) On January 17, 2008, her supervisor sent an e-mail to the staff
discouraging breaks due to heavy workloads.
7) On or about May 21, 2008, complainant received a written counseling
letter after returning from sick leave (May 12-20, 2008) addressing
absences that were covered by a doctor's statement.
8) On June 11, 2008, complainant found on her desk, Memorandum 05-43,
dated January 10, 2006, titled "Dress Code Policy." Complainant was
the only employee, who received the memorandum at that time.
9) On June 11, 2008, her supervisor approached complainant's cubicle
and began a conversation with her and another co-worker. During the
conversation her supervisor used profanity in describing another
co-worker.
10) Her supervisor previously served as a Union steward, thus she has
personal relationships with current stewards.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Specifically, we find that
the events described, even if proven to be true, would not indicate that
complainant has been subjected to harassment because of her national
origin or gender that was sufficiently severe or pervasive to alter the
conditions of her employment. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). Moreover, allegations (1), (2),
(3), (4), (6) and (10) were actions that were directed at all employees
in the unit regardless of national origin or gender, and not specifically
at complainant.
Moreover, to the extent that allegation (7) concerning the counseling
letter is also considered a discrete act of alleged discrimination
separate from the overall harassment claim, the record supports
the agency's finding that this issue was untimely raised with an EEO
counselor. The letter of counseling was received by complainant on May
21, 2008, and complainant did not initiate EEO counseling until July
25, 2008, beyond the 45-day limitation period. On appeal, complainant
argues that her untimely contact should be excused because during this
period she was in a car accident and was undergoing medical care for
work-related stress. However, complainant has not provided evidence that
she was incapacitated during the relevant period and, in fact, indicates
she was going to work. Therefore, she has not established that she was
unable to contact an agency EEO counselor during the 45-day limitation
period and the agency's dismissal of allegation (7) as untimely raised
as an independent claim is correct.
Accordingly, the agency's decision to dismiss the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 16, 2009
__________________
Date
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0120090739
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090739