01982542
08-06-1999
Ronald W.R. Turner, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ronald W.R. Turner, )
Appellant, )
) Appeal No. 01982542
v. ) Agency No. 96-0954
) Hearing No. 220-97-5297X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black, Native-American),
color (black), sex (male), reprisal (activity as an EEO counselor and
prior EEO activity), and age (DOB: 1/28/52), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.; and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq. Appellant alleges he was harassed and
discriminated against when: (1) his supervisor (S1) opened a confidential
letter concerning an EEO matter of a former employee; (2) S1 required
that appellant inform him of all meetings, and when he would return
to his work station; and (3) S1 issued appellant a Report of Contact
(REPORT) when appellant failed to specify when he would return to work
following an EEO conference on October 24, 1995. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant, a GS-4 Medical Clerk at the agency's
Columbus, Ohio facility during the relevant time, filed a formal EEO
complaint with the agency on or around February 28, 1996, alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
Pursuant to 29 C.F.R. � 1614.109(e), the AJ issued a Recommended Decision
(RD) without a hearing, finding no discrimination.
Concerning issues (1) through (3), the AJ concluded that appellant
failed to establish a prima facie case of discrimination or retaliation
because he failed to allege a specific loss or harm to a term, condition,
or privilege of employment when a confidential letter was opened by S1,
when S1 asked appellant to tell him when he would be away at meetings
and when he would return to his work station and when S1 issued the
above-referenced REPORT. In reaching this conclusion, the AJ noted,
based on a statement from the Supervisor of Human Resources, that the
issuance of the REPORT in this case was not disciplinary in nature.
The AJ then noted S1's statement that in order to schedule breaks,
he needed to know when appellant would be meeting with employees.
The AJ thus concluded that S1 had a legitimate business concern for
asking appellant to inform him when he would be away, and returning to
his work station, namely, to ensure coverage for breaks. The AJ also
found that appellant failed to establish a prima facie case of race, sex,
or age discrimination because he failed to demonstrate that similarly
situated employees not in his protected classes were treated differently
under similar circumstances. Finally, and in noting that S1 admitted he
accidently opened the confidential letter and returned it to appellant
once he realized it was not for him, the AJ concluded that this event,
even in conjunction with appellant's other allegations, was insufficient
to demonstrate the existence of a hostile work environment. The agency's
FAD adopted the AJ's RD. Appellant offered no contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ that appellant
failed to establish a prima facie case of discrimination or retaliation.
While appellant is a member of the applicable protected classes,
his allegations do not state a cognizable claim of discrimination
or harassment because he did not allege any specific harm to a term,
condition, or privilege of employment. See Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994); Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997). Additionally,
appellant failed to demonstrate that similarly situated employees were
treated more favorably under similar circumstances, or that there was
a nexus between S1's actions and appellant's EEO activity. Finally,
appellant's allegations are do not constitute actions sufficiently severe
or pervasive so as to be considered harassment. See Quintero v. United
States Postal Service, EEOC Appeal No. 01960836 (April 21, 1998).
We discern no basis to disturb the AJ's findings of no discrimination
which were based on a detailed assessment of the record. Therefore,
after a careful review of the record, including arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations