01a24131
08-06-2003
Ronald Duncan, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ronald Duncan v. Department of Veterans Affairs
01A24131
August 6, 2003
.
Ronald Duncan,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24131
Agency No. 2004-0613-2002101624
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a complaint dated March 8, 2002, complainant alleged that he was
subjected to discrimination on the basis of race (black), sex (male)
and in reprisal for prior EEO activity when he was subjected to
ongoing harassment since 1997 to present. Complainant alleged that
the agency allowed individuals working in the carpentry repair shop to
create an intimidating offensive work environment and failed to properly
investigate and to take appropriate corrective action when notified of
the harassment. Complainant detailed the claims in the following fashion:
(1) Since he was hired as a Compensated Work Therapy worker in the
carpentry repair shop he has been subjected to emotional, racial,
intimidation and has been living in fear of racial attacks;
(2) He and a union representative notified management officials about
the harassment and filed an EEO complaint around April 1999;
(3) Although he currently works in a different area of the medical center
certain ex-coworkers whisper to each other and gave him dirty looks on
January 30, 2002;
(4) During a meeting with a psychologist on February 27, 2002,he discussed
how he was feeling paranoid when certain ex-coworkers looked at him
although they said nothing;
(5) While working in Ward 5C, he alleges that he experienced increased
anxiety when ex-coworkers looked at him on March 13, 2002;
(6) During a meeting with a psychologist , he discussed fears pertaining
to ex-coworkers watching and/or following him on April 11, 2002.
The agency dismissed the complaint on the grounds that the alleged
incidents represent isolated events that failed to rise to a level of
discriminatory harassment. The agency noted that regarding alleged
incidents of harassment, it sent a letter to complainant dated April 30,
2002, requesting complainant to state specifically what alleged harassing
events occurred, and the dates of these events. The agency noted that,
in response, complainant replied by fax transmission dated May 10, 2002.
The record contains a copy of complainant's May 10, 2002 response.
Therein, complainant addressed some of the matters identified in the above
referenced claims; i.e., that on January 30, 2002, he became aware of a
newspaper article referencing the agency losing a discrimination case;
that in February 2002, he had crossed paths with alleged harassers who
gave him dirty looks and began to whisper to each other; that in March
2002, he was subjected to a �nasty look;� and that in April 2002, he
spoke with a physician wherein he indicated that he felt that he was
being watched and followed.
The agency further determined that complainant was in the Compensated
Work Therapy Program from September 1997 through January 1998 and
this program is authorized under 38 U.S.C. 1718(a) and the statutory
provision specifies that patients in the agency's health care facilities
may provide services for therapeutic and rehabilitative purposes but they
"shall not under these circumstances be held or considered as employees
of the United States for any purposes." Accordingly, the agency concluded
that complainant did not have standing to file an EEO complaint.
The Commission finds that the complaint fails to state a claim under
the EEOC regulations because complainant failed to show that he
suffered 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,
the Commission has thoroughly reviewed complainant's claim in terms of
whether complainant has alleged a pattern of harassment. Our 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 final decision dismissing complainant's
complaint is AFFIRMED.
Because we affirm the dismissal for the reason stated herein, we find
it unnecessary to address the agency's determination that complainant
lacked standing to file a complaint because he was in the Compensated
Work Therapy Program.
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 6, 2003
__________________
Date
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