Mara S. Katz, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 13, 2007
0120072239 (E.E.O.C. Aug. 13, 2007)

0120072239

08-13-2007

Mara S. Katz, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Mara S. Katz,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120072239

Agency No. 200J05532007100313

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated March 6, 2007, dismissing her 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. The agency dismissed the complaint pursuant to 29 C.F.R. �

1614.107(a)(1) for failure to state a claim.

In a complaint dated December 27, 2006, complainant alleged that she

was subjected to discrimination on the basis of disability (unspecified

mental disorder) when:

1. on or about October 61, 2006, complainant was placed on a Performance

Improvement Plan (PIP) despite providing her supervisor with medical

certification that she had been on medication that allegedly impacted

on her work performance; and

2. complainant's supervisor subjected her to a discriminatory hostile

work environment when she allegedly yelled at her, pointed her finger

at her, and told complainant not to call herself an attorney.

Claim (1) concerns the agency's decision to place complainant on a

performance improvement plan (PIP) in October-November 2006. Beyond

placement on the PIP, there is no indication in the record that any

adverse action was taken against complainant as a result of the PIP.

29 C.F.R. � 1614.107(a)(5) provides that an agency may dismiss a claim

involving a proposal to take a personnel action or other preliminary

step to taking a personnel action. The Commission has held that a PIP

is merely a preliminary step to taking a personnel action and, in most

instances, by itself does not constitute an adverse action sufficient

to render an employee aggrieved. Lopez v. Department of Agriculture,

EEOC Appeal No. 01A04897; Jackson v. Central Intelligence Agency, EEOC

Request No. 05931177 (June 23, 1994). Therefore, the agency's dismissal

of claim (1) is affirmed.

As regards claim (2), the Commission concludes that it also fails to

state a claim under the EEOC regulations because even assuming the

alleged harassing incidents were true and included the PIP, complainant

failed to alleged that she was subjected to unwelcome conduct based

on her disability that had the purpose or effect of unreasonably

interfering with her work performance and/or creating an intimidating,

hostile, or offensive work environment. See McCleod v. Social

Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)

(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Where,

as here, a complaint does not challenge an agency action or inaction

regarding a specific term, condition, or privilege of employment, the

claim may survive as evidence of harassment if it is sufficiently severe

or pervasive to alter the conditions of the complainant's employment.

See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the

harassment is sufficiently severe to trigger a violation of EEO statutes

must be determined by looking at all of the circumstances, including

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.

See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC

Notice No. 915.002 (March 8, 1994). 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. Department of Veterans Affairs,

EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human

Services, EEOC Request No. 05940481 (February 16, 1995). In this case,

Complainant's harassment claim does not allege facts sufficient to find

that she suffered a harm or loss with respect to a term, condition,

or privilege of employment for which there is a remedy. See Diaz

v. Department of the Air Force, EEOC Request No. 05931049 (April 21,

1994). Accordingly, the agency's final decision dismissing claim (2)

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

August 13, 2007

__________________

Date

1 In the FAD, the date for this issue is cited as November 11, 2006.

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0120072239

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120072239