01a03046
06-23-2000
Linda J. O'Neal, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Linda J. O'Neal v. Department of Veterans Affairs
01A03046
June 23, 2000
Linda J. O'Neal, )
Complainant, )
)
v. ) Appeal No. 01A03046
) Agency No. 200K-1165
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> The final agency decision
was dated February 24, 2000. The appeal was postmarked March 20, 2000.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614. 402
(a)), and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
The issue on appeal is whether the agency properly dismissed complainant's
complaint on the grounds that she failed to state a claim.
On February 17, 2000, complainant filed a complaint alleging harassment
because of her disability and previous EEO related activity when:
1. On December 28, 1999, while she was sitting at a desk in the Spinal
Cord section, her supervisor approached her and stated in a loud tone of
voice where everyone in the area could hear, "why are you sitting in the
chair and not doing your assigned duties?" According to complainant,
she told her supervisor that the Administrative Officer (AO) gave her
an assignment because she was not feeling well. Her supervisor went
into the AO's office and came back to her shouting, "are you sick?"
Complainant stated that she responded no and told her supervisor to stop
harassing her. Her supervisor, she stated, shouted in a loud disrupted
tone, "I am not harassing you."
2. On or about December 28, 1999, she found out, through hearsay, that
her supervisor threatened to charge her LWOP if she caught her reading
nursing materials on the job.
The agency's final decision dismissed the complaint on the grounds
that both issues failed to state a claim. According to the agency,
complainant did not establish that she suffered a loss or harm with
respect to a term, condition, or privilege of her employment.
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited
as 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. 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. Department
of the Air Force, EEOC Request No. 05931049 (April 22, 1994).
At the outset, we find that the agency erred in that it did not
recognize that complainant's claim concerned harassment, not disparate
treatment.<2> A claim of harassment is actionable only if the conduct
to which the complainant has been subjected was sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). In determining whether a harassment complaint states a
claim, the Commission has repeatedly examined whether a complainant's
harassment allegations, when considered together and assumed to be true,
were sufficient to state a hostile or abusive work environment claim. Id.
Additionally, 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. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Cobb, supra.
We find that complainant has not demonstrated that the conduct she
complains of was so severe or pervasive that it altered the conditions of
her employment. These two incidents, which both occurred on December
28, 1999, do not rise to an actionable level of harassment; and,
therefore, fail to state a claim. Accordingly, the agency's final
decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
_06-23-00_________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency is advised that, with respect to complainant's reprisal
claim, the Commission, in Carroll v. Department of the Army, EEOC Request
No. 05970939 (April 3, 2000), reaffirmed its policy of viewing reprisal
claims with a broad view of coverage. Citing EEOC Compliance Manual, EEOC
Order No. 915.003, "Retaliation," p. 8-15 (May 20, 1998), the Commission
held that "[c]laimed retaliatory actions which can be challenged are
not restricted to those which affect a term or condition of employment."
Therefore, a complainant is protected from any discrimination which is
reasonably likely to deter them from engaging in protected activity. Id.