0120072827
09-26-2007
Jesse Corley, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jesse Corley,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072827
Agency No. 200400152006101224
Hearing No. 570200700213X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 11, 2007, final decision concerning his equal
employment opportunity (EEO) complaint alleging 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.
Complainant contacted an EEO counselor on February 20, 2006, and filed
his formal complaint on May 14, 2006.1 He alleged that the agency
discriminated against him on the basis of race (black) and subjected him
to a hostile work environment when (a) his supervisor (S1) assigned him
additional duties after an employee (MM) left in early January 2006;
and (b) a Manager (MD) subjected him to character assassination and
public ridicule during meetings in January and March 2006. Following an
investigation,2 complainant initially requested a hearing but withdrew
his request, and the agency issued the decision before us.
At the time of these events, complainant worked as a Supply Systems
Analyst, GS-13, in the Logistics Clinical Office.3 In October 2005,
the office reorganized, and he was moved from materials management
to the standardization team; in addition, he had responsibility for a
recall program under the supervision of Manager D (MD). According to
complainant, MD initially approved his operation of the program, but,
after he complained directly to a higher-level manager, MD criticized him
about the recall program in two public meetings.4 His managers denied
that he was harassed or subjected to a hostile work environment, i.e., S1
stated that MM's duties were assigned among several staff, and MD stated
he did not believe that complainant was publicly derided or criticized,
although he acknowledged that he and other managers were critical of
complainant's failure to provide reports timely and to carry out his
assignment regarding the recall. The agency concluded that complainant
failed to show that the agency's actions were based on racial animus, that
they were sufficiently severe or pervasive to rise to the level of illegal
harassment, or that the workplace was riddled with intimidation, ridicule,
and insult such that the conditions of his job were affected.5
After a review of the record in its entirety, including arguments
not addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision because the preponderance
of the evidence of record does not establish that discrimination
occurred.
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
____9/26/07______________
Date
1 We affirm the agency's dismissal of claims filed in an untimely manner
or previously raised by complainant.
2 We note that the investigator stated that the complaint was assigned
for investigation on November 20, 2006, which was more than six months
following the filing of complainant's formal complaint. The agency
is reminded that it is required to complete its investigation within
180 days. See 29 C.F.R. � 1614.108(e).
3 Complainant left work in February-March 2006, and did not return;
he was terminated in August 2006, and filed an appeal with the Merit
Systems Protection Board (MSPB) (Docket No. DC-0752-06-0881-I-1),
claiming, inter alia, discrimination based on disability and reprisal.
On March 9, 2007, a MSPB AJ issued an Initial Decision, which became
final on April 13, 2007. Although given a right to request review by
the Commission, complainant did not do so.
4 Complainant asserted that the work he was asked to perform involved
policy and medical decisions that should have been made by an agency
manager or medical professional.
5 See Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997), citing Harris v. Forklift Systems, Inc., 510 U.S. 17,
21 (1993) (harassment is actionable if it is sufficiently severe or
pervasive to alter the conditions of the complainant's employment).
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0120072827
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036