01a41215
07-29-2004
John A. Kugelman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John A. Kugelman v. Department of Veterans Affairs
01A41215
July 29, 2004
.
John A. Kugelman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A41215
Agency No. 200L-0596-2003102708
DECISION
Upon review, the Commission finds that the agency's decision dated
October 29, 2003, dismissing complainant's complaint for failure to
state a claim is proper pursuant to 29 C.F.R. � 1614.107(a)(1).
In his complaint, complainant alleged that on April 3, 2003, his
supervisor accused him of participating in a �sick out� and then
threatened him with dismissal from his position. Complainant also
alleged that management telephoned him at home on the same day to
notify him that he would have to bring in a physician's slip regarding
his illness, and he did so when he returned to duty on April 7, 2003.
Complainant indicated that management wanted his shop door to remain
unlocked. Complainant also indicated that he was forced to fill in
for another supervisor, and he was concerned that while he did that,
he could be put in a compromising position in that his supervisor might
take administrative action against him.
The Commission has consistently held that a remark or comment
unaccompanied by concrete action is not a direct and personal
deprivation sufficient to render an individual aggrieved for the
purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695
(February 9, 1995). There is no evidence in the record that complainant
was actually subjected to any adverse or disciplinary action as a result
of the alleged incidents or threat. Thus, the Commission finds that the
complaint fails to state a claim within the purview of the regulations.
Although complainant claimed that the alleged incidents constituted
harassment and a hostile work environment, the Commission does not
find that the alleged actions were sufficiently severe or pervasive
to alter the conditions of his employment such as to state a claim
of harassment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Accordingly, the agency's decision is hereby 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 29, 2004
__________________
Date