0120065193
02-08-2007
Nancy V. Lugo, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Nancy V. Lugo,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200651931
Agency No. 200H-0526-2006102472
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 28, 2006, dismissing her 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. In her
complaint, complainant alleged that she was discriminated against based on
her sex (female) in that she was subjected to a hostile work environment
when:
1. in January 2006, while she and the Chief of Medical Information
Service (Chief) were in an elevator, the Chief said to complainant
"let your son try to find a job";
2. on May 10, 2006, the Chief told her that her son would never get
another agency job; and
3. on May 16, 2006, the Chief provoked an argument with her husband and
then called the police.
Complainant's son, who reported to the Chief, resigned from the agency
in January 2006. Complainant claims that her son was forced to resign,
and as remedy in her complaint, asks that he be reinstated to work in
a different department. Regarding claim 3, the Chief and complainant's
husband had words, and the Chief went to the police. According to the
Chief, the husband threatened him. Complainant's version of events did
not include a threat.
According to the counselor's report, complainant said the Chief had been
her supervisor at one time.
The agency dismissed the complaint for failure to state a claim.
29 C.F.R. � 1614.107(a). In Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the
conditions of the complainant's employment. The Court explained
that an "objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive:" and the
complainant subjectively perceives it as such. Harris, supra at 21-22.
Thus, not all claims of harassment are actionable. 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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Applying the above standards, we find that the agency properly dismissed
the complaint for failure to state a claim. The alleged harassment
does not rise to the actionable level. The Chief is not complainant's
supervisor, the incidents were not frequent, and none were sufficiently
severe to state a claim.
Complainant's requested remedy suggests she in part is attempting to
litigate her son's separation from the agency, something which does not
state a claim for complainant.2
Accordingly, the agency's final decision 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
February 8, 2007
__________________
Date
1 The Commission's September 19, 2006, letters to the parties
acknowledging the appeal identified it as docket number 01A65193.
Due to changes in our computerized records tracking system, the appeal
docket number has been restyled to 0120065193.
2 If the son filed an EEO complaint regarding his separation, we are
not ruling on whether it should be accepted for investigation.
??
??
??
??
2
0120065193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120065193