Dewitt L. Sanders, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 28, 2005
01a45746 (E.E.O.C. Mar. 28, 2005)

01a45746

03-28-2005

Dewitt L. Sanders, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Dewitt L. Sanders v. Department of Veterans Affairs

01A45746

March 28, 2005

.

Dewitt L. Sanders,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A45746

Agency No. 200N-0691-2004101429

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated July 28, 2004, dismissing his 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. In his

complaint, complainant alleged that he was subjected to a hostile work

environment on the bases of race (African-American) and sex (male) when:

On February 2, 2004, the Associate Director for Mental Health (Associate

Director), ordered complainant to return to the office from another

building in order to provide telephone coverage and she insisted that

complainant do so even though he had informed her that he had not gone

to lunch. Complainant complied and �ended-up� not taking a lunch break.

On January 19, 2004, the Associate Director notified complainant that

she had changed the units for which he would perform timekeeping duties.

From May 2003 through February 2004, at least once per month, the

Associate Director has commented that complainant spends too much time

in Building 500 and that no one knows where he is.

In December 2003, the Associate Director accused complainant of not

following instructions in regard to providing her with �stats� relative

to �Employee Badges and Smart Team.�

In April 2003, when complainant informed the Associate Director that

he wanted to have physical therapy three times a week, she replied,

�Type a memo, get proof that you are requiring physical therapy, and

make an appointment with me�; whereas she has given immediate approval

for undocumented verbal requests from other employees.

In May 2001, complainant's tour of duty was changed.

On March 18, 2001, the Associate Director referred to a report that

complainant had prepared as �garbage.�

In December 2000, subsequent to complainant working with an Interior

Designer to select furniture and trying to secure centralized air and

heat for an office move, the Associate Director stated that complainant

has no management skills and that complainant does not make decisions

for the Mental Health Service.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. The Commission's federal sector case precedent has long

defined 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).

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Howard v. Department of the Navy,

EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation

is not triggered until a complainant reasonably suspects discrimination,

but before all the facts that support a charge of discrimination have

become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that he was not notified of the

time limits and was not otherwise aware of them, that he did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence he was prevented

by circumstances beyond his control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission finds that the agency properly dismissed claims 1-5, 7 and

8 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

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. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12,

1996); Banks v. Health and Human Services, EEOC Request No. 05940481

(February 16, 1995). Therefore, we find that complainant has failed to

state a claim of harassment.

The Commission finds that claim 6 is more appropriately dismissed

pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2) for untimely EEO

Counselor contact. Complainant contacted an EEO Counselor on February 3,

2004, which is beyond the forty-five day limitation period. On appeal,

complainant has presented no persuasive arguments or evidence warranting

an extension of the time limit for initiating EEO Counselor contact.

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

March 28, 2005

__________________

Date