0120122233
09-07-2012
Annette Weary, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Annette Weary,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122233
Agency No. 200P-0593-2012101509
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 12, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Social Worker, GS-11, at the Agency's VA Southern Nevada Healthcare System in Las Vegas, Nevada.
On February 28, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, color, age, and in reprisal for prior EEO activity when:
1. on November 18, 2011, she received an annual performance evaluation in which she received only a "fully successful" rating, and that on January 5, 2012, she became aware that her manager had submitted notes about her to Human Resources;
2. on February 9, 2012, when she attempted to address an issue that the Manager, Home and Community Care raised (M1), [M1] harshly replied that it was not her turn, and that Complainant needed to wait until it was her turn to speak;
3. on February 21, 2012, M1 sent an email stating that Complainant did not return her phone call on February 17, 2012; and
4. on February 21, 2012, when she tried to get clarification about a situation, M1 stated "Here we go again."
In its April 12, 2012 final decision, the Agency dismissed claim 1 on the grounds that Complainant raised the same matter in a negotiated grievance process. The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on December 11, 2011, before her formal EEO complaint was filed on February 28, 2012. The Agency also dismissed claim 1 on the alternative grounds of stating the same claims that were raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claim 1 raise the same matter in Agency Case No. 200P-0593-2012100870.
The Agency dismissed claims 2 - 4 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Complainant failed to show she suffered a personal loss or harm to a term, condition or privilege of her employment. The Agency further found that the alleged acts did not rise the level of harassment.1
ANALYSIS AND FINDINGS
Claim 1
An Agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint where the matter was first raised in a negotiated grievance procedure that permits claims of discrimination to be raised. See 29 C.F.R. � 1614.107(a)(4). The collective bargaining agreement must allow employees to raise matters of alleged discrimination under the 29 C.F.R. Part 1614 EEO process or under the negotiated grievance procedure, but not both. An election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a). Complainants elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance. See id.
The record in the instant case contains a Step 1 grievance filed by Complainant dated January 9, 2012 concerning her "fully successful" performance appraisal. The record also contains a copy of the Master Agreement between the Agency and the union. Therein, Article 43, Section 3 provides that "as provided for in 5 USC Section 7121, the following actions may be filed either under the statutory procedure or the negotiated grievance procedure but not both: 1. Actions based on unsatisfactory performance (5 USC Section 4303); 2. Adverse actions (5 USC Section 7512); and/or 3. Discrimination (5 USC 2302(b)(1))."
Because Complainant filed her grievance through the union before she filed the instant formal complaint, we find that she elected the grievance process. We find that the Agency properly dismissed claim 1 on the grounds that Complainant raised the matter in a negotiated grievance procedure that permits allegations of discrimination pursuant to 29 C.F.R. � 1614.107(a)(4).2
Claims 2 - 4
The Commission finds that claims 2 - 4 fail 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Further, to the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were 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).
The Agency's final decision dismissing the instant formal complaint for the reasons stated herein is AFFIRMED.
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
September 7, 2012
__________________
Date
1 The record reflects that on March 8, 2012, Complainant filed a separate EEO complaint alleging that she was discriminated against on the bases of sex when on January 26, 2012, she was not selected for the position of Administrative Assistant to the Chief of Staff, GS-11/12, advertised under Vacancy Announcement Number LW-11-568594-RDO. The record further reflects that on April 9, 2012, the Agency issued a final decision finding no discrimination concerning Complainant's non-selection claim. We note that the non-selection claim is identified under the same Agency No. as the captioned formal complaint: Agency No. 200P-0593-2012101509. However, we will not address the non-selection claim herein because it is the subject of a separate complaint.
2 Because we affirm the Agency's dismissal of claim 1 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. stating the same claim).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122233
6
0120122233