0120091856
08-28-2009
Alicia Guyton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alicia Guyton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091856
Agency No. 200406882009100023
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated February 27, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant is a program analyst, GS-13, with the Engineering Service in
a VA Medical Center. Her job includes monitoring utility charges, which
have significant impact on the budget from quarter to quarter, and she has
much work contact with people in budget. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(black and Native American), sex (female), and age (over 40) when:
1. on September 4, 2008, a Budget manager (not over complainant) got
contentious with complainant about her refusal to provide him her binder
of utility invoices, and this rose to the level of yelling, screaming,
and threatening to report her to the Director,
2. after complainant was acting upset and continued to refuse to hand
over her binder, her supervisor called agency police,
3. prior to September 4, 2008, the above Budget manager on the telephone
yelled and screamed at complainant in the presence of her supervisor, once
saying Pepco costs were too high and to call them and find out why.1
The FAD dismissed the complainant for failure to state a claim.
It reasoned that the actions were not severe or pervasive enough to rise
to the level of harassment.
On appeal, complainant reiterates the allegations in her complaint, and
contends they rise to the level of actionable harassment. In opposition
to the appeal, the agency argues the FAD should be affirmed.
Complainant wrote in her complaint that after the police arrived, they
asked what was going on, tried to calm her crying since she was upset,
and then left.
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).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings 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 the 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.
We find that harassment alleged in the complaint is not severe and
pervasive enough to rise to the level of actionable harassment. See,
e.g., Foster v. United States Postal Service, EEOC Appeal No. 0120091301
(complaint that management screamed and hollered at appellant one day and
threatened to have her removed from the workroom force by force by police
action failed to state a claim); Little v. Department of the Air Force,
EEOC Appeal No. 01A63045 (complaint that an agency official reported to
security police that appellant said someone needs to blow of the base
failed to state a claim).
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim 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
August 28, 2009
__________________
Date
1 Based on complainant's complaint, as clarified in her appeal, this
decision has more added detail to the characterization of her complaint.
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0120091856
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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