01A24790_01A32031_r
07-16-2003
Lorey A. Flowers, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Lorey A. Flowers v. Department of Veterans Affairs
01A24790 & 01A32031
July 16, 2003
.
Lorey A. Flowers,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal Nos. 01A24790 & 01A32031
Agency Nos. 200H-0595-2002104093 & 200H-0595-2002104487
DECISION
Upon review, the Commission finds that complainant's complaints were
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In agency number 200H-0595-2002104093, dated July 15,
2002, complainant alleged that she was subjected to discrimination on the
bases of race (African-American) and reprisal for prior EEO activity when:
On May 15, 2002, complainant's supervisor made a comment to staff members,
which complainant perceived was referring to her, about people getting
hurt on the job in order to pursue civil litigation.
On June 3, 2002, complainant's supervisor threatened to counsel
complainant about her use of the government facsimile machine and her
interpersonal relations with other employees.
On June 6, 2002, complainant's supervisor asked complainant where she
was that morning in an intimidating manner.
On June 25, 2002, complainant was given a memorandum entitled,
�Job Expectations and Guidance,� which criticized aspects of her job
performance and conduct, and requested that complainant adhere to certain
standards contained therein.
On June 26, 2002, complainant was told by an agency police officer that
a discriminatory note was left on the desk of one of complainant's
co-workers and asked complainant if she noticed anything unusual on
the date that the note was found. Complainant stated that none of her
co-workers were questioned about the note.
In agency number 200H-0595-2002104487, dated September 10, 2002,
complainant alleged that she was subjected to discrimination on the
basis of reprisal for prior EEO activity when:
On July 26, 2002, upon review of complainant's performance appraisal,
complainant became aware that her supervisor made changes to her
performance plan.
Sometime between June 25, 2002, and July 2, 2002, complainant alleged
that her supervisor inserted an electronic mail message into her
personnel folder.
The instant two complaints, which can be considered as one claim of
harassment, are consolidated pursuant to 29 C.F.R. � 1614.606.
The Commission finds that the complaints, when considered together,
are insufficient in severity or duration so as to constitute a claim of
harassment. Cobb v. Department of the Treasury, EEOC Request No. 05970077
(March 13, 1997). Furthermore, complainant was not aggrieved by any of
the incidents apart from claim 4 cited in her complaints. The Commission
finds that claim 4 rendered complainant aggrieved and was improperly
dismissed for failure to state a claim.
The agency's decision dismissing claim 4 is REVERSED and we REMAND
claim 4 for further processing in accordance with this decision and
the Order herein. The agency's decision dismissing claims 1 - 3, 5, A,
and B, is AFFIRMED.
ORDER (E0900)
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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 16, 2003
__________________
Date