0120111387
06-24-2011
John Laneve, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John Laneve,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111387
Agency No. 200H-0631-2010104837
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated December 8, 2010, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §�
�791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Supervisory Social Worker at the Agency’s Medical Center
facility in Northampton, Virginia. On September 13, 2010, Complainant
contacted the EEO Office alleging that he had been subjected to a hostile
work environment. When the matter could not be resolved informally,
Complainant was issued a Notice of Right to File a Formal Complaint.
On October 26, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of disability
and reprisal for prior protected EEO activity under Section 501 of
the Rehabilitation Act of 1973 when he was subjected to harassment.
In support of his claim, Complainant alleged that the following events
occurred:
1. On September 28, 2009, Complainant was advised that he no longer
needed to attend weekly supervisor meetings and no longer part of the
management team.
2. On October 5, 2009, the title on Complainant's Position Description
was changed from Acting Social Work Executive to Supporting the Social
Work Executive.
3. On October 8, 2009, Complainant's supervisor (Supervisor) told him
that the Supervisor would speak to the Medical Center Director about
granting Complainant authorized absence in combination with sick leave
if Complainant would not come back to work.
4. On August 12, 2010, the Supervisor threatened Complainant by telling
Complainant that it was important that Complainant retire in September
2010.
5. On August 26, 2010, the Supervisor met with Complainant in the parking
lot and told him that he was going send Complainant to Springfield and
that he was going to get complainant 'out of here'.
The Agency dismissed the complaint on three grounds. First, the Agency
dismissed the matter finding that Complainant failed to contact the EEO
Counselor in a timely manner pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency noted that Complainant had been provided with training
informing him of the 45 day time limit and that Complainant failed to make
contact in a timely manner. The Agency then dismissed the matter pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim finding that
Complainant failed to allege events sufficient severe or pervasive enough
to state a claim of harassment based on disability and/or in reprisal
for protected activity. Finally, the Agency dismissed the complaint
finding that the issue was moot. The Agency noted that the Supervisor
has since retired. As such, the alleged harassment will not recur.
This appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in §1614.105, §1614.106 and
§1614.204(c), unless the agency extends the time limits in accordance
with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within 45 days of the effective date
of the action.
The Commission has held that “because the incidents that make up a
hostile work environment claim collectively constitute one unlawful
employment practice, the entire claim is actionable, as long as at
least one incident that is part of the claim occurred within the filing
period. This includes incidents that occurred outside the filing period
that the [Complainant] knew or should have known were actionable at the
time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold
Issues at 2-75 (revised July 21, 2005) (citing Nat’l Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The record reflects that some of the incidents proffered by Complainant
in support of his hostile work environment claim occurred within the
45 day period preceding Complainant's September 13, 2010, initial
EEO contact, as discussed above. Therefore, we find that the Agency
improperly dismissed Complainant’s claim of harassment on the grounds
of untimely EEO Counselor contact.
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. In determining whether a harassment complaint states a
claim in cases where a complainant had not alleged disparate treatment
regarding a specific term, condition, or privilege of employment,
the Commission has repeatedly examined whether a complainant’s
harassment claims, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim.
See Estate of Routson v. National Aeronautics and Space Admin., EEOC
Request No. 05970388 (February 26, 1999).
Consistent with the Commission’s policy and practice of determining
whether a complainant’s harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February
16, 1995). Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually are not
a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable person
in the complainant’s circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Dept. of the Army, EEOC Appeal No. 01933866 (November 22,
1995)(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee’s work performance. Harris, 510 U.S. at 23. Upon review
of the record, we find that Complainant has in fact stated events which,
if taken together, state a claim of harassment. We noted that has alleged
tangible as well as intangible employment actions which are sufficiently
severe or pervasive enough to state a claim of harassment. Therefore,
we determine that the Agency’s dismissal pursuant to 29 C.F.R. §�
�1614.107 (a)(1) for failure to state a claim was not appropriate.
Mootness
Finally, the Agency dismissed the complaint as being moot for the
Supervisor is no longer with the Agency. The regulation set forth at
29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint
when the issues raised therein are moot. To determine whether the
issues raised in complainant’s complaint are moot, the factfinder
must ascertain whether (1) it can be said with assurance that there is
no reasonable expectation that the alleged violation will recur; and
(2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep’t of the Navy, EEOC
Request No. 05970343 (July 10, 1998). When such circumstances exist,
no relief is available and no need for a determination of the rights of
the parties is presented.
As to the complaint as a whole, complainant also sought compensatory
damages. Because complainant requested compensatory damages, the agency
should have requested that complainant provide some objective proof
of the alleged damages incurred, as well as objective evidence linking
those damages to the adverse action at issue. See Allen v. U.S. Postal
Serv., EEOC Request No. 05970672 (June 12, 1998); Benton v. Dep’t of
Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the agency did
not address the issue of compensatory damages, we find that dismissal
of the complaint is improper. See Rouston v. Nat’l Aeronautics and
Space Admin., EEOC Request No. 05970388 (March 18, 1999). Complainant
requested $150,000 as remedy for the alleged harassment. The Agency
failed to make any request that Complainant provide any objective proof
of the alleged damages incurred were linked to the harassment alleged.
As such, we find that the Agency’s dismissal of the matter pursuant
to 29 C.F.R. § 1614.107(a)(5) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the
Agency’s final decision and REMAND the matter in accordance with the
ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File A Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 24, 2011
__________________
Date
2
0120111387
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111387