01A30731
03-13-2003
John J. Pilarski, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John J. Pilarski v. Department of Veterans Affairs
01A30731
March 13, 2003
.
John J. Pilarski,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A30731
Agency No. 200M-02-103627
DECISION
Complainant appealed to this Commission from the agency's September 20,
2002 dismissal of his employment discrimination complaint. In his
complaint, dated August 4, 2002, complainant alleged discrimination
on the bases of sex (male) and in reprisal for his wife's prior EEO
activity when:
On June 5, 2002, effective June 6, 2002, complainant was removed from
his �second signing/mentoring activities;� and
Complainant was subjected to a hostile work environment by the following
management actions:
After complainant's second signing/mentoring activities were removed,
management failed to provide an explanation for removing the duties,
despite two requests for explanation from complainant;
During a June 11, 2002 meeting, complainant was yelled at and interrupted
by a supervisor when he asked about the change in his duties; and
On July 8, 2002, a different supervisor winked at complainant and said
�good morning.�
The agency dismissed complainant's entire complaint for raising claims
previously addressed in the negotiated grievance process. The agency
noted that claim (2) was not specifically mentioned in complainant's
grievance, but found the matters �inextricably intertwined� with the
grievance. The agency also dismissed claim (2) for failure to state
a claim.
The record contains a copy of complainant's Step-1, dated July 3, 2002,
and Step-2 grievance filings. Therein, complainant raised the agency's
removal of his second signing/mentoring duties, and its failure to
explain the removal. In the collective bargaining agreement between
complainant's union and the agency, complainant may raise discrimination
claims under either the statutory or grievance process, but not both.
In such situations, the agency may dismiss EEO complaints previously
raised in the negotiated grievance process. 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's dismissal of claims (1), and portions (a) -
(b) of claim (2) was proper.
Claim (2)(c) is not inextricably intertwined with complainant's grievance
filing. Nonetheless, it fails to state a claim, and dismissal pursuant
to 29 C.F.R. � 1614.107(a)(1) was proper. 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). This single incident is not severe
or pervasive enough to state a claim of harassment.
Accordingly, the agency's dismissal 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
March 13, 2003
__________________
Date