0120101896
08-17-2010
Sylvia Williams, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sylvia Williams,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101896
Agency No. 200H06202010101448
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 29, 2010, 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.
BACKGROUND
The record indicates that Complainant is a Nursing Assistant at the Agency's Medical Center in Castle Point, New York. Believing she had been subjected to discrimination, Complainant contacted the EEO Office on January 25, 2010. When the matter could not be resolved informally, on February 24, 2010, Complainant filed a formal complaint. In her complaint, Complainant alleged that the Agency subjected her to harassment:
1. On the bases of sex (female) when, from 2008 through July 2009, a co-worker subjected Complainant to sexual harassment by asking her out repeatedly, describing his genitals, telling her he wasn't wearing underwear, describing his sex life, telling that she needed a life; and touching and stroking her back;
2. On the basis of religion (Protestant) when, on January 8, 2010, Complainant was accused by her co-workers of not answering patient call bells.
The Agency dismissed claim 1 finding that Complainant failed to contact an EEO Counselor in a timely manner regarding her claim of sexual harassment. The Agency noted that Complainant was subjected to harassment until July 2009; however, she did not contact an EEO Counselor in January 2010. The Agency also indicated that there are posters providing employees information about their EEO rights and the appropriate time frames. Further, the Agency stated that Complainant had been provided with training which included information about the EEO complaint process and the 45-day time limit. As such, the Agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency then dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim of harassment. The Agency determined that Complainant had not shown that the alleged action by her co-workers was so severe or pervasive enough to state a claim of harassment.
Complainant appealed. On appeal, Complainant asserted that she has experienced trauma based on the event alleged in claim 2 in January 2010. In support of her claim of harassment, Complainant raises new issues on appeal that occurred after the filing of her formal complaint. It should be noted that Complainant acknowledged that she did receive training via the computer but did not recall a time frame for making EEO contact. The Agency requested that the Commission affirm its final decision dismissing the complaint at hand.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the time limit if the complainant can establish that complainant was not aware of the time limit, that complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
The record indicates that Complainant was subjected to harassment from 2008 through July 2009. Complainant noted that she was aware of the sexual harassment; however she did not choose to pursue her claim until January 2010. Complainant even acknowledged that she was trained on the EEO complaint process. Therefore, we conclude that the record provided proof that Complainant was aware or should have been aware of the 45-day time limit. Complainant has not provided sufficient reasoning for extending the timeframe. Therefore, we find that Complainant's contact in January 2010 regarding claim 1 was untimely. As such, we determine that the Agency's dismissal of claim 1 was appropriate.
Failure to State a Claim of Harassment
Complainant also alleged that she was subjected to harassment based on her religion when her co-workers accused Complainant of not answering patient call bells. 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. In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. Natl. Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26, 1999).
Consistent with the Commission's policy and practice of determining whether a complainant's harassment claims are sufficient to state a hostile or abusive work environment claim, the Commission has repeatedly found that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dept. of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Servs., EEOC Request No. 05940481 (February 16, 1995). Moreover, the Commission has repeatedly found that remarks or comments unaccompanied by a concrete agency action usually are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No.05940695 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment existed, the trier of fact should consider whether a reasonable person in the complainant's circumstances would have found the alleged behavior to be hostile or abusive. Even if harassing conduct produces no tangible effects, such as psychological injury, a complainant may assert a Title VII cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin. Rideout v. Dept. of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). Also, the trier of fact must consider all of the circumstances, including the following: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23. Upon review of the record, we find that Complainant has not alleged conduct that was so severe or pervasive enough to state a claim of harassment. As such, we find that the Agency's dismissal of claim 2 was appropriate.
CONCLUSION
Accordingly, upon review of the record as a whole, the Commission AFFIRMS the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 17, 2010
__________________
Date
2
0120101896
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101896