01A44318_r
10-15-2004
Cathie Simmons, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cathie Simmons v. Department of Veterans Affairs
01A44318
October 15, 2004
.
Cathie Simmons,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44318
Agency No. 200L-0598-2004101272
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 27, 2004, 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.
The agency defined complainant's complaint as alleging that she was
subjected to discrimination on the bases of race (Black), sex (female)
and in reprisal for prior EEO activity when:
On January 21, 2004, complainant went to Employee Health to turn in a
status report. When complainant returned, her supervisor appeared to
be very angry with her. Complainant's supervisor pointed her finger
at complainant and said, �The next time you leave your area, you better
write on the board where you are going.�
On January 21, 2004, complainant became nauseated and nervous over
what had transpired. Complainant went to the restroom and vomited.
Complainant attempted to see Dr. A. Complainant's supervisor saw
her in Dr. A office making an appointment to see Dr. A. Complainant's
supervisor asked what she was doing and she told her that she was making
an appointment to see Dr. A Complainant's supervisor ordered her back
to work. Complainant finished making her appointment and then went to
the Employee Health Unit due to stress.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The agency determined that the actual claims in complainant's complaint is
harassment. The agency noted that the record does not reveal any actions
resulted from complainant's supervisor telling her to sign out on the
board and to return to work. The agency found that the alleged incidents
were not sufficiently severe or pervasive to constitute harassment.
On appeal, complainant states that on January 21, 2004, her supervisor
orally reprimanded her for leaving her work area without writing on the
board where she was going. Complainant asserts that she followed the
procedures in place on January 21, 2004, that some of the employees write
on the board and some do not. Specifically, complainant stated that the
White and male employees were not required to sign the board and did not
receive verbal reprimands for not signing the board. She states that her
terms and conditions of employment were affected when she is required to
sign the board while others are not. Regarding her harassment claim,
complainant states that the reason she was reprimanded was that her
supervisor was hoping that she would return to full duty on January 21,
2004. She states that her supervisor's behavior was hostile, abusive,
humiliating and interfered with her performance to the point that she
had to leave work because of the stress.
In response to complainant's appeal, the agency notes that the alleged
harassment occurred on one day and constituted two incidents where
complainant's supervisor allegedly spoke to her harshly. The agency
reiterates its position that the alleged incidents were not sufficiently
severe or pervasive to constitute harassment. Additionally, the agency
claims that on appeal complainant characterizes her claim differently by
asserting that neither White nor male employees were required to use the
sign-in-sign-out board. The agency states that this is not the claim
made in her formal complaint.
Upon review, we find the agency properly dismissed complainant's
harassment claim for failure to state a claim. We find the alleged
incidents of harassment on January 21, 2004, are not sufficiently severe
or pervasive to constitute harassment. Additionally, with regard to the
oral reprimand, there is no argument by complainant that she received
any official discipline recorded in her personnel file. We find that
complainant's claim regarding having to use the sign-in-sign-out board
is part of the alleged harassment, but we find that it does not state an
independent claim of discrimination and is not, when considered with the
other incidents, sufficiently severe so as to state a claim of harassment.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
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
October 15, 2004
__________________
Date