01A44688_r
11-08-2004
Robert J. Timbs, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert J. Timbs v. Department of Veterans Affairs
01A44688
November 8, 2004
.
Robert J. Timbs,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44688
Agency No. 200L-0622-2004101938
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision, dated May 28, 2004, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On May 6, 2004, complainant, an agency Clerk Typist, filed a formal
complaint, alleging that he was the victim of unlawful employment
discrimination on the basis of sex.
In its final decision, dated May 28, 2004, the agency determined that
the instant complaint was comprised of two claims, identified in the
following fashion:
(A) January 28, 2004 - A doctor assaulted complainant when she grabbed
his wrist and screamed at him in front of other employees.<1>
(B) January 28, 2004 - The police investigation was not done
professionally. The detective and Assistant Chief laughed and joked
about the incident. The captain issued a threat to retaliate against
complainant if he filed formal charges against the doctor.
The agency dismissed the complaint for failure to state a claim.
The agency found that the incident, wherein a co-worker raised her voice
and grasped complainant's wrist, did not affect a term or condition of
his employment. Similarly, the agency found that the demeanor of the
investigating officers, as well as the manner of their investigation,
did not result in an adverse employment action. Further, the agency
determined that complainant was not subjected to harassment that was
severe or pervasive enough to alter the conditions of his employment.
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).
The Commission determines that record fails to show how the alleged
incidents resulted in a personal loss or harm to a term, condition
or privilege of his employment. Moreover, a review of the record
reflects that the matters in question are insufficient to support a
claim of harassment. See Cobb v. Department of the Treasury, EEOC
Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision was proper and 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
November 8, 2004
__________________
Date
1The record reflects that this incident
occurred while complainant was smoking outside of the emergency room
where the doctor was working; and that the doctor confronted him about
the smoke that was purportedly entering the emergency room.