01A11325_r
07-05-2002
Janet Polesovsky, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Janet Polesovsky v. Department of Veterans Affairs
01A11325
July 5, 2002
.
Janet Polesovsky,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11325
Agency No. 200H-1914
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated September 18, 2000, complainant
alleged that she was subjected to discrimination on the basis of reprisal
for prior EEO activity when:
On April 16, 2000, co-worker A accused complainant of deliberately
pushing the food trays down the food line to overlap and crush her hand;
On May 20, 2000, co-worker B showed 3 male co-workers a sexually explicit
magazine in complainant's presence;
On June 21, 2000, co-worker C made comments about complainant's
boyfriend;
On July 13, 2000, co-worker D accused complainant of placing the wrong
cereal on the serving trays;
On July 14, 2000, co-worker A stated that she did not want to be near
complainant;
On July 19, 2000, complainant's supervisor stated that he received a
Report of Contact from co-worker E stating that complainant was reading
the newspaper when she should have been working and he (supervisor)
asked complainant if it were true;
On July 30, 2000, co-worker F raised his voice and spoke to complainant
in a disrespectful manner;
On July 30, 2000, co-worker G called complainant "stupid"; and
On September 8, 2000, complainant's supervisor gave complainant a
Report of Contact to read concerning a co-worker's interpretation of
an incident concerning a request to work overtime.
We concur with the agency that none of the above described incidents
either standing alone nor taken as an overall claim of harassment states a
claim upon which relief may be granted. We find nothing in complainant's
complaint other than a series of isolated incidents which collectively
fail to rise to the level of an actionable claim on the basis of reprisal.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). The agency's decision to dismiss
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was proper.
Accordingly, the agency's final 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
July 5, 2002
__________________
Date