0120080831
03-13-2008
Dolores L. Reyes, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dolores L. Reyes,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120080831
Agency No. 2003-0756-2007103873
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 1, 2007, 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.
Upon review, the Commission finds that complainant's complaint was
improperly dismissed, in part, pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
On August 24, 2007, complainant initiated contact with an Equal
Employment Opportunity (EEO) Counselor alleging that the agency
subjected her to hostile work environment harassment on the basis of
sex (female) when (1) in April 2007, a Supervisory Radiologist (S1)
stated that no internal applicants would be accepted for a Supervisory
Diagnostic Radiologic Technologist vacancy, which caused complainant
not to apply and (2) on July 17, 2007, S1 stated to complainant that he
did not want a female for the supervisory vacancy and stated the same
to one of complainant's coworkers. Subsequently, complainant filed a
formal complaint reiterating (1) and (2) and adding that (3) on July
24, 2007, S1 condoned the actions of a male coworker who refused to
assist complainant with a wheelchair-bound patient and slammed a door in
her face. Finally, complainant amended her formal complaint to allege
that the agency continued to harass her, based on reprisal, when (4)
on October 3, 2007, a supervisor approached her in a very aggressive
manner in front of a patient, and instructed her to meet with a coworker
and bring a union representative with her.
In its November 1 final decision, the agency dismissed incidents (2) and
(4) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,
and incident (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely
EEO contact.
Regarding (1) and (2), we find that a fair reading of the two together
is a claim of "discriminatory nonselection" when S1 manipulated the
selection process for the supervisory position based on his desire to
hire a male and not a female. Generally, we have found that a claim of
discriminatory nonselection fails to state a claim when complainant fails
to apply for the position.1 However, after careful consideration of the
claim and record presented, we are persuaded that the matter states a
claim that complainant was denied an opportunity to apply based on S1's
discriminatory motives. However, as to incidents (3) and (4), we find
that complainant failed to allege a present harm or loss with respect
to a term, condition, or privilege of employment for which there is a
remedy2; or allege actions sufficiently severe or pervasive to alter the
conditions of complainant's employment3 or of a type reasonably likely
to deter complainant or others from engaging in protected activity.
Based on the above, we REVERSE the final agency decision as to (1)
and (2) and AFFIRM the decision as to (3) and (4). We remand a claim
of discriminatory nonselection to the agency for further processing
consistent with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 13, 2008
__________________
Date
1 See Owen v. Social Security Administration, EEOC Request No. 05950865
(December 11, 1997).
2 Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
3 See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
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0120080831
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120080831