01A32279_r
08-22-2003
Sally C. Pearson, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sally C. Pearson v. Department of Veterans Affairs
01A32279
August 22, 2003
.
Sally C. Pearson,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A32279
Agency No. 2004-0659-2002104404
DECISION
Complainant filed an appeal with this Commission from the agency's
decision, dated February 11, 2003, dismissing her complaint of
unlawful employment discrimination. According to the agency's decision,
complainant alleged that she was subjected to discrimination on the bases
of race, sex, age, and reprisal when, from August 16, 2001 to April 2002,
she was a victim of on-going harassment through the creation of a hostile
work environment and unfair and inequitable working conditions. The
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim on the grounds that complainant had not
shown harm to a term, condition, or privilege of employment.
On appeal, complainant argues that the agency improperly framed her
claims in its decision. The Commission will review the complaint as
framed in her formal complaint and on appeal. Accordingly, complainant
alleged that she was subjected to discrimination on the bases of race,
sex, age, and reprisal when:
A younger male employee with less seniority was appointed as Acting
Supervisor of Patient Effects Support (PES). Complainant was not, to
her knowledge, considered for or given the opportunity to compete for
the position.
A younger male employee with less seniority was given the title of
Production Supervisor by the Acting Supervisor of PES. Complainant was
not, to her knowledge, considered for or given the opportunity to compete
for the position.
Mr. X, a White male, colluded with Mr. Y, a Black male, and: a) kept
Mr. Y informed of matters related to the Supply Clerk job; b) consulted
with Mr. Y daily about matters relating to work; c) gave Mr. Y �clean�
and �easy� work; d) failed or refused to communicate with complainant;
e) ignored complainant during the daily PES work functions; f) allowed
Mr. Y to complain about and against complainant for doing his job when
prior supply clerks performed the same functions and duties; and
The agency denied complainant bar code training, which was provided to
younger employees.
With regards to complainant's claim of harassment, defined as claim 3,
complainant alleged that the agency actions were an attempt to �drive
[her] out of [her] job.� The Commission finds that complainant's claim
is not severe or pervasive enough to constitute a claim of harassment,
and, thus, fails to state a claim.
With regards to claim 1, complainant alleged that she had more seniority
in the department than the individual who was appointed as Acting
Supervisor and the denial of this position allowed the younger male
employee to gain additional supervisory experience that she was denied.
It appears that appointment to the position is based on a combination of
relevant work experience in the department and supervisory experience.
Moreover, the Acting Supervisor position does not follow the normal
selection process of competitively-advertised positions. Hence, a
requirement that complainant show that she applied for the position
is not relevant. Accordingly, the Commission, finds that complainant
has shown harm to a term, condition, or privilege of employment, and,
therefore, states a claim with respect to this claim.
With regards to claim 2, complainant alleged that the position of
Production Supervisor was not competitively advertised by the agency
according to established agency policies, which denied her the chance
to compete for the position. Accordingly, the Commission, finds that
complainant has shown harm to a term, condition, or privilege of
employment, and, therefore, to states a claim.
With regards to claim 4, complainant alleged that she was denied
barcode training as part of a national program involving the department
she worked in and that the training was provided to younger employees.
The Commission finds that complainant has shown harm to a term, condition,
or privilege of employment, and therefore, states a claim.
The agency's decision to dismiss claim 3, as defined, for failure to
state a claim is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss claims 1, 2 and 4 for failure to state a claim is
REVERSED for the reasons set forth herein. We REMANDED claims 1,2 and
4 to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 22, 2003
__________________
Date