David W. Perkins, Complainant,v.R. James Nicholson , Secretary, Department of Veterans Administration, Agency.

Equal Employment Opportunity CommissionMar 15, 2005
01a51495 (E.E.O.C. Mar. 15, 2005)

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.