0120103103
12-29-2010
Joseph Teixeira, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joseph Teixeira,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103103
Agency No. 200P06002010100798
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 14, 2010, dismissing his complaint of unlawful 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
BACKGROUND
During the relevant period, Complainant worked as an Occupational Therapist at a Long Beach, California health care facility of the Agency. On November 30, 2009, Complainant initiated EEO contact alleging that the Agency subjected him to hostile work environment harassment on the basis of sex (male) when, about November 6, 2009, he was accused of providing inaccurate and inconsistent information to a patient's family and of being aggressive with a team member during a meeting.
Complainant stated that he alleges discrimination because, in the past, a relevant female supervisor (S1) and female attending physician (S2) have consistently made negative comments about males in front of staff and patients and showed preference for females over males. Complainant alleged "male-bashing" by S1 and S2. Specifically, Complainant alleged that, over the course of five years, S1 referred to males as "bastard[s]," "pigs," and "dumbasses," treated females more favorably, and threatened to terminate his employment. He alleged that S2 stated that most men would be classified as "Functional Independence Measurement (FIM)[3]," inappropriately handled the November 6 incident, and made disrespectful statements about men. Further, Complainant alleged that a female colleague gave inaccurate information about him that led to the November 6 incident.
In its April 14 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. �� 1614.107(a)(1) & (a)(2) for failure to state a claim and untimely EEO contact, respectively. Specifically, the Agency stated that Complainant failed to allege actions that rise to the level of a hostile work environment and that all actions before November 6 fall outside the statutory time-frame for EEO contact. The instant appeal followed from Complainant.
ANALYSIS AND FINDINGS
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. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Further, where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
After careful review of the record, we find that Complainant has not alleged facts that, if proven true, would establish a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy or are sufficiently severe or pervasive to rise to the level of a hostile work environment. Thus, we find that the Agency's dismissal of complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) is appropriate. And, we find it unnecessary to address the alternate dismissal basis of untimely EEO contact. We AFFIRM the final agency decision.
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 (S0610)
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 (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
__December 29, 2010____
Date
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0120103103
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103103