0120120744
05-10-2012
Yolanda Hill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Yolanda Hill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120120744
Agency No. 200305892011104261
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 27, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Motor Vehicle Operator at the Agency's facility in Kansas City, Missouri. On September 12, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and in reprisal for prior protected EEO activity.
In its final decision, the Agency determined that Complainant's complaint was comprised of the following claims:
1) On July 9, 2009, November 23, 2009, June 18, 2010, July 2, 2010, February 25, 2011, March 1, 2011, April 19, 2011, and May 5, 2011, [a named co-worker, (C1)] made derogatory and inappropriate remarks on the two way radio about Complainant.
2) On June 27, 2011, Complainant received a letter written by [C1] that was provided to co-workers that included "slanderous" statements about Complainant.1
3) On June 28, 2011, Complainant was required to write a report of contact without union representation.
The Agency dismissed claim (1) for failure to state a claim reasoning that the alleged incidents set forth in claim (1) were encompassed under a June 23, 2011 settlement agreement.
The Agency found that the remaining alleged incidents set forth in claims (2) and (3) were not sufficiently severe or pervasive to set forth an actionable claim of harassment. In addition, the Agency found that regarding the basis of reprisal, the alleged incidents in claims (2) and (3) were not reasonably likely to deter Complainant or others from engaging in protected activity.
CONTENTIONS ON APPEAL
Complainant does not submit a statement or brief in support of her appeal.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.
ANALYSIS
Claim (1)
The Commission finds that the Agency properly dismissed claim (1) because the alleged incidents were covered by a June 23, 2011 settlement agreement. The record contains a copy of a June 23, 2011 EEO settlement agreement between the parties. Provision 1(b) provides that Complainant:
Waives any and all actions, claims, complaints, EEO complaints, grievances, appeals and proceedings of whatever nature against the Agency, its past or present officers and employees, in their personal as well as their official capacities, including attorney fees, which are now or hereafter may be asserted by her or on her behalf pertaining to any employment issue that arose during the time period up to and including the effective date of this agreement, with the exception of any claims that may arise by reason of breach of any term of this settlement agreement.
The alleged incidents set forth in claim (1) arose prior to the June 23, 2011 settlement agreement; thus, we find the Agency properly dismissed claim (1).
Claims (2) and (3)
The Agency properly dismissed claims (2) and (3) for failure to state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The instant matters (a letter written by C1 referencing Complainant and Complainant being told to write a report of contact without union representation) are not sufficiently severe or pervasive to state an actionable claim of harassment. Regarding the basis of reprisal, we find that the alleged incidents are not reasonably likely to deter Complainant or others from engaging in protected activity.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (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 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 (Z0610)
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
May 10, 2012
Date
1 The Agency, in its final decision, noted that the letter accused Complainant of being late and treating veterans inappropriately.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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