01A33137_r
08-22-2003
Brenda E. Linn, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Brenda E. Linn v. Department of Veterans Affairs
01A33137
August 22, 2003
.
Brenda E. Linn,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33137
Agency No. 2004-0659-2002104431
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 11, 2003, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of age and reprisal for prior EEO activity when:
On July 9, 2002, a co-worker (C1, a Health System Specialist) scrutinized
complainant's work setting up a closet.
On July 17, 2002, C1 was condescending toward complainant after
complainant presented training and informed C1 that the General Inventory
Package (GIP) would not be up and running in Environmental Management.
On July 30, 2002, C1 told complainant not to continue any other GIP work
until it can be further assessed.
On August 6 and 13, 2002, C1 was hostile and rude to complainant.
On August 8, 2002, C1 demanded that complainant give her access to MSU.
On August 12, 2002, C1 instructed complainant to use Auto generation
for purchase card orders.
On July 24, 2002, complainant received an electronic mail message from
C1 regarding the GIP for Environmental Management Service (EMS).
On October 21, 2002, complainant was informed by her supervisor that
complainant would be transferred to the supervisor for Supply Processing
and Distribution (SPD).
On July 26, 2002, complainant was instructed by C1 to put all of her
job duties on hold.
On July 3, 2002, C1 told complainant that overtime and compensatory time
would not be necessary.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1),
finding that complainant's complaint failed to state a claim because
complainant did not show that she suffered any loss or adverse personnel
action as a result of the allegations described in her complaint.
On appeal, the agency argues that the incidents of alleged harassment
did not rise to the level of harassment necessary to state a claim.
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 complainant's claim was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1). Complainant's allegations are neither
sufficiently severe nor pervasive to state an overall claim of harassment
and nothing in the record shows complainant suffered any loss of pay,
overtime, or was subjected to any discipline as a result of the incidents
described.
We note that on appeal, complainant argues that another supervisor, S2,
has taken away complainant's office space and closely scrutinizes her
work, and that she is forced to work in intolerably high temperatures.
These matters were not the subject of the instant complaint.
Accordingly, we AFFIRM the agency's dismissal of the complaint pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 22, 2003
__________________
Date