01a51495
03-15-2005
David W. Perkins, Complainant, v. R. James Nicholson , Secretary, Department of Veterans Administration, Agency.
David W. Perkins v. Department of Veterans Administration
01A51495
03-15-05
.
David W. Perkins,
Complainant,
v.
R. James Nicholson ,
Secretary,
Department of Veterans Administration,
Agency.
Appeal No. 01A51495
Agency No. 200406592004103651
DECISION
David W. Perkins (complainant) filed an appeal from the December 3,
2004, final decision of the Department of Veterans Administration
(agency) dismissing the above-referenced complaint. Complainant claimed a
violation of the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
In a formal complaint, complainant claimed discrimination based on
age (DOB 6-27-1950) when he was harassed by his supervisor (S1) in a
meeting in June or July 2004. Specifically, complainant stated that
S1 rejected his comments and ideas, that S1 told him that he was not
performing his duties and others were carrying his load, and that other
staff had warned him previously that S1 would take action against him.
In its final decision, the agency dismissed the complaint because it
failed to state a claim, the events were isolated and not sufficiently
egregious in nature to constitute illegal harassment, and because some
incidents were untimely brought to the attention of an EEO counselor.
29 C.F.R. �� 1614.107(a)(1); 1614.107(a)(2).
The Commission's regulations require an agency to dismiss a complaint
that fails to state a claim within the meaning of 29 C.F.R. �1614.103.
The Commission's federal sector case precedent defines 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).
After a review of the record, including statements and arguments not
addressed herein, and for the reasons stated above, we find that the
agency properly dismissed the complaint for failure to state a claim,
as he has not shown how he was harmed by the comments of S1 nor do these
comments on complainant's performance rise to the level of creating a
hostile work environment<1>
CONCLUSION
Accordingly, the agency's decision was proper and 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
____03-15-05______________
Date
1Complainant stated that he was subsequently passed over for the
position of Chief of Surgery, which raises a new issue. If he wishes
to pursue this matter in the EEO complaint procedure, he must contact
an EEO counselor.