01A33674_r
09-11-2003
Paul A. Rogers, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Paul A. Rogers v. Department of Veterans Affairs
01A33674
September 11, 2003
.
Paul A. Rogers,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33674
Agency No. 2004-0659-2003100326
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 20, 2003, dismissing his 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 his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Caucasian) and sex (male) when he was subjected
to a hostile working environment when:
1. On April 11, 1997, a coworker, another cook, came very close to
striking him;
2. On December 28, 1997, a coworker used profanity in the presence of
management, which made him feel intimidated;
3. On February 6, 1998, a coworker elbowed him at the coffee machine;
4. On May 1, 1998, complainant talked to the Department Chief in
reference to how a coworker was holding the meat cleaver and starring
at him;
5. On June 6, 1998, a coworker got in his face and was hollering,
"You better not mess with him";
6. On July 2, 1998, a coworker closed the cooler door on him;
On July 18, 1998, a coworker got in his face and pointed his finger
saying, "You better shut up";
On August 5, 1998, a coworker gave him dirty looks and stared at him;
On August 6, 1998, a coworker was near his cart and put food on the
cart and pushed it with his foot while complainant was trying to move
the cart out of the coworker's way;
On August 12, 1998, a coworker told another coworker not to help him;
On October 26, 1998, a coworker stared at him for a few seconds and
replied in a terrible tone of voice, "I only saw my hamburger";
On May 2, 2000, a coworker stared at him and a supervisor;
On June 22, 2000, a coworker physically threatened him when he said to
him, "I'm going to knock you out";
On July 3, 2000, he reminded a coworker to remember to clean the kettle
and the coworker responded in a very hateful tone, "That's not my kettle,
it belongs to the U.S. government";
On October 22, 2002, he asked a coworker if he was using the oven and
the coworker replied in a hateful way, "No, I wish you would get out of
my way";
On November 6, 2002, a coworker said in a very loud, ugly and evil tone,
" I wish you [would] get out of my way"; and
On December 9, 2002, during a meeting, a coworker said, "Why don't you
be a man?"
The agency dismissed the claims pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
The regulation set forth at 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,
.106(a). 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 21, 1994).
We find that complainant is not aggrieved as a result of the incidents
alleged in the complaint. Nothing in the record indicates that
complainant suffered any 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). Moreover, we do not find that, examining the complaint as a whole,
complainant has been subjected to harassment that was sufficiently severe
or pervasive to alter the conditions of his employment.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
September 11, 2003
__________________
Date