01A33549_r
10-27-2003
Hubert J. Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hubert J. Smith v. Department of Veterans Affairs
01A33549
October 27, 2003
.
Hubert J. Smith,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33549
Agency No. 2004-0613-2003101398
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 23, 2003, 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.
On January 24, 2003, complainant contacted the EEO office claiming that
he was subjected to discrimination on the bases of race and reprisal for
prior EEO activity. Informal efforts to resolve complainant's complaint
were unsuccessful. Subsequently, on March 4, 2003, complainant filed a
formal complaint. The agency, in its final decision, framed the claims
as follows:
You state that on January 23, 2003, after you were informed that a noose
had been seen within the facilities management area, you made management
officials aware and that on January 24, 2003, in an effort to play down
the sighting, the medical center director ordered a black police officer
to conduct an investigation.
You stated that during a meeting held on January 24, 2003, management
officials tried to limit the time you should spend to represent employees
in EEO matters.
On April 23, 2003, the agency issued a decision dismissing the complaint
for failure to state a claim.
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 or she 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). 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).
In claim (1), complainant claimed that he was subjected to discriminatory
harassment when he reported to a named manager official that a noose
was sighted in the work site of Facilities Management. According to
complainant, there were three previous sightings reported to management
in 1999, 2001, and 2002. Complainant stated that the next day, the
Medical Director ordered a black police officer to investigate the
sighting, which complainant contends was an effort to �play the issue
down and make it appear that the matter was of no major concern.� We
note that complainant himself did not see the purported noose, nor
did he allege that no action was taken when he reported the sighting.
While complainant contends that the sighting created a hostile work
environment, hostile work environment harassment is actionable if it is
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
We find that based on the present record, complainant failed to show that
the identified incident was sufficiently severe to state an actionable
claim of harassment.
Claim (2) involve the agency's alleged interference with complainant's's
duties as a representative. We find that this matter was properly
dismissed as failing to state a claim. Such a claim lies with
a complainant, and not with his or her representative. See Sessoms
v. USPS, EEOC Appeal No. 01986835 (July 14, 2000).
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
October 27, 2003
__________________
Date