0120102323
09-07-2010
Cristina Lecaros-Trinidad, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cristina Lecaros-Trinidad,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102323
Agency No. 200405172010100408
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 5, 2010, 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.
ISSUE PRESENTED
Whether the Agency correctly dismissed the complaint for failure to state a claim.
BACKGROUND
In a complaint dated February 18, 2010, Complainant, a GS-15, MD Hospitalists in Beckley, Virginia, alleged that the Agency subjected her to discrimination on the bases of race (Asian) and sex (female) when:
a. On May 21, 2009, her first-level supervisor, the Chief of Staff (CS) (white) berated Complainant after she requested that a patient with an acute status be transferred to another hospital for care.
b. On August 25, 2009, CS berated her regarding her medical decision regarding the transfer of a patient to receive care.
c. On October 15, 2009, CS berated her indicating that she made the wrong medical decision to send a patient home.
d. After treating a patient on October 25, 2009, CS disputed her patient care.
e. On October 26, 2009, Senior Hospitalist (SH) angrily accused her of talking against him and starting a "coup" against him.
Agency Dismissal
The Agency found that the complaint was subject to dismissal for failure to state a claim. The Agency noted the following:
In this case, although two events occurred 10 days apart, the claim of harassment involves four events related to the care of specific patients that occurred over a six month period of time, from May through October 2009. Another event, which also occurred in October 2009, involved an event with a colleague who was angry about information he had received. The last event which occurred two months later, in December 2009, involved one colleague reporting to the Complainant what a third colleague reportedly told the Chief of Staff.
The Agency determined that these events as alleged cannot be regarded as discriminatory harassment as defined by the EEOC as they did not indicate a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy; and, were not sufficiently severe or pervasive to alter the conditions of Complainant's employment.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the dismissal was improper as the alleged harassment was severe or pervasive enough to be unlawful. She also notes that "[h]aving [CS] make demeaning comments indicating that women at the facility are dysfunctional or that the Complainant is incompetent because she is a woman is as severe as an action can be short of physical assault."
In response, the Agency asks the Commission to affirm the dismissal of the complaint.
ANALYSIS
First, we note that we cannot consider claims, made for the first time on appeal. In this regard, we note Complainant's allegation that CS stated that "women at the facility are dysfunctional" or that "Complainant is incompetent because she is a woman." There is no mention of these comments in the counselor's report or formal complaint.1
The Commission finds that the complaint fails to state a claim under the EEOC regulations. Consistent with the Commission's policy and practice of determining whether a Complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete action by an Agency usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.05940695 (February 9, 1995).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
____9/7/10______________
Date
1 If Complainant believes she has been subjected to new incidents of harassment or discrimination since the filing of the instant complaint, she may seek EEO counseling.
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0120102323
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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