0120110499
07-13-2012
Dornell Mister, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dornell Mister,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110499
Agency No. 200I06752009103091
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 23, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Social Worker, GS-11, at the Agency's VA Medical Center in Orlando, Florida. Complainant previously engaged in protected activity, and in August 2008 was reinstated to his position following a finding of discrimination in his favor.
On June 23, 2009, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on May 11, 2009:
1. The Program Coordinator informed Complainant about veterans' complaints concerning his patient support group but would not provide a copy of the complaint to Complainant;
2. He learned that the Program Coordinator did not follow the normal procedure in conducting an investigation with him about the veterans' complaints; and
3. The Program Coordinator denied the Complainant union representation when she met with him about the veterans' complaints.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision without a hearing on August 12, 2010. In that decision the AJ found that the complaint should be dismissed because Complainant failed to establish that he was subjected to an adverse action. The Agency subsequently issued a final order adopting the AJ's dismissal of the complaint.
ANALYSIS AND FINDINGS
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. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). With respect to claims of retaliation, the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006).
To state a viable claim of retaliation, complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms would not satisfy the initial prong of this inquiry, the significance of the act of alleged retaliation will often depend upon the particular circumstances. See EEOC Compliance Manual, No. 915.003 (May 20, 1998) (any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity states a claim).
After a review of the record, we find that Complainant did not state a claim of retaliation. The record reflects that while veterans complained about Complainant's patient support group, no actions were taken against Complainant as a result of the complaints. Further, while the Program Coordinator was not able to provide Complainant with a copy of the veterans' complaints because she did not have them in her possession, Complainant was given a copy of the complaints from the person who had possession of them. Here, the record indicates that the Program Coordinator was simply informing Complainant about complaints from veterans concerning his patient support group. The alleged retaliatory actions were tantamount to common workplace occurrences and trivial annoyances, and were not materially adverse and were not reasonably likely to deter protected activity. Duran v. Dep't of Homeland Security, EEOC Appeal No. 0720100042 (April 13, 2011) (Petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity). Additionally, with regard to Complainant's allegation that he was retaliated against when he was denied union representation, we have found that claims such as this concern an alleged violation of Complainant's rights pursuant to a collective bargaining agreement and cannot be addressed through the EEO process. See Anderson v. U.S.P.S., EEOC Appeal no. 0120072620 (August 17, 2007) (A claim that Complainant was retaliated against when she was denied union representation concerns rights pursuant to a collective bargaining agreement and cannot be addressed through the EEO process). As a result, we affirm the dismissal of this complaint for failure to state a claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of the complaint.
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
7/13/12
__________________
Date
2
0120110499
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110499