0120083660
12-05-2008
Pamela T. Polite, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Pamela T. Polite,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120083660
Agency No. 200I05732008101764
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 28, 2008, dismissing her complaint of unlawful
employment discrimination.
In February 2008, complainant, a registered nurse at the agency's Lake
City, Florida hospital, sought EEO counseling alleging discrimination
based on reprisal when, in January 2008, management denied her request
to attend training for Union Safety Officers. On May 28, 2008, when the
matter was not resolved during counseling, she filed a formal complaint
on the denial of training issue. Complainant also included additional
claims of reprisal in her formal complaint concerning having to work six
consecutive weekends in October and November 2006, and receiving a "low
satisfactory" proficiency rating in November 2007. The agency dismissed
the additional claims for failing to raise them initially with the EEO
counselor, and because they were not "like or related" to the matter
raised with the counselor (the 2008 denial of training). In addition,
the agency dismissed the entire complaint, pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim, asserting complainant's
reprisal claim was based on her union activity rather than prior EEO
activity.
As an initial matter, the Commission affirms the agency's dismissal of
the 2006 and 2007 claims for failure to raise them with an EEO counselor
and notes that they also appear to be untimely raised since complainant
first contacted the EEO counselor on February 12, 2008. EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory.
With regard to the January 2008 denial of training issue, a fair reading
of the formal complaint form and the EEO counselor's report indicates
that complainant was alleging that she was retaliated against for filing a
union grievance over a written counseling she received in September 2006.
There is no indication that complainant raised issues of discrimination in
the grievance or engaged in any other protected EEO activity for which
she is alleging resulted in the retaliation. Moreover, retaliation
is the sole basis of the alleged discrimination identified during EEO
counseling and in complainant's formal complaint. On appeal, complainant
does not rebut the agency's assertion that she was claiming retaliation
for engaging in union activity rather than protected EEO activity.
The Commission has held that participation in union activities which
do not raise issues of employment discrimination is not a protected
activity under Title VII, and is therefore not within the purview of EEOC
regulations. See Denson v. United States Postal Service, EEOC Request
No. 05921048 (April 22, 1993). Furthermore, there is no evidence of record
that complainant previously engaged in any protected activity which could
result in her being subjected to retaliation within the purview of Title
VII. Therefore, the agency correctly dismissed the retaliation claim
for failure to state a cognizable claim under the EEO complaint process.
Accordingly, the agency's dismissal of the complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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 5, 2008
__________________
Date
2
0120083660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120083660