0120093300
01-22-2010
Rose O. Gallucci, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rose O. Gallucci,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093300
Agency No. 200H06502009102198
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 6, 2009, dismissing her 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to a discriminatory hostile work environment based on her
race (Asian-American) and disability (legally blind) when:
1. on March 7, 2009, co-worker 1 insisted that she sign onto other
terminals to determine if logging on with her password would result in
a large font display so complainant could use other terminals;
2. on March 11, 2009, she received a message from a co-worker that
co-worker 1 wanted her to contact an information technology (IT) person
and arrange to have all computers in their area set up to display large
font;
3. on March 12, 2009, she found a handwritten note on her keyboard by
co-worker 1 telling her to contact the IT person to have large font
display installed on all the computers; and
4. on March 12, 2009, during a heated discussion co-worker 1 told
complainant "you bitch, get out of my face."
Complainant and co-worker 1 are telephone operators. Complainant's shift
ends at 12 PM, and co-worker 1's starts at 12 PM. They prefer to work
in the same workspace. Co-worker 1 likes to report to work before
her starting time, to set up. For this reason, co-worker 1 wanted
complainant to leave their preferred workspace early and work elsewhere.
Hence, she kept pressing complainant to arrange for other terminals to
display large font.
In her detailed complaint complainant alleged that on March 12, 2009,
she told one supervisor and an IT person that her regular work space
was the only area she would work because of the lighting, alarm monitor
and terminal, and since she did not have any special equipment, she was
not moving. The IT person reportedly responded that she did not see any
reason why complainant should move, that it was government property so she
could sit anywhere she wanted. In her complaint complainant alleged one
incident where she, her two supervisors, and co-worker 1 were present at
the same time --- on March 12, 2009, the supervisors listened to her and
co-worker 1. Complainant explicitly contended in her complaint that the
terminal she regularly used was fine. She did not allege therein that she
was told to move by a supervisor, or that she moved. In her complaint
complainant explicitly alleged race and disability discrimination,
and averred she was subjected to a hostile work environment.
The agency dismissed the complaint for failure to state a claim.
It reasoned that the above incidents did not rise to the level of
actionable harassment.
On appeal, complainant asserts that the agency mischaracterized her
complaint. She avers that she was alleging that she was denied reasonable
accommodation, and her supervisors were complicit in this because they
were with co-worker 1 and did not intervene. She explicitly avers that
despite there being a hostile work environment, this is not a hostile work
environment case; and that despite co-worker 1 being extremely intolerant
of racial diversity, this is not a case of race discrimination; rather,
her case was about a failure to reasonably accommodate.
In opposition to the appeal, the agency argues that it properly defined
the complaint. It points to language in the complaint. It argues that
its final decision dismissing the complaint should be affirmed.
After closely reviewing the complaint and counselor's report, we find that
the agency accurately defined the complaint. By contending on appeal
that her case is not one of hostile work environment, complainant has
abandoned her complaint.1 Instead, complainant is raising a new claim,
denial of reasonable accommodation. Complainant did not allege a failure
to reasonably accommodate in her complaint. For example, she did not
contend that she was told to move by any supervisory official from the
computer and workspace where she could work with her vision impairment,
or that she moved. Nor does she make this claim on appeal.
The agency's final decision is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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
January 22, 2010
__________________
Date
1 Nevertheless, we agree with the agency that complainant's complaint
failed to state a claim since it did not rise to the level of actionable
harassment.
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0120093300
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093300