0120092660
12-03-2009
Terrill Dunning, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Terrill Dunning,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092660
Agency No. 200406592009101225
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 2, 2009, dismissing his 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. In his
complaint, complainant alleged that he was subjected to a hostile work
environment on the basis of reprisal for prior protected EEO activity
under a statute that remains unspecified in the record when:
1. On February 6, 2009, complainant was forced to appear before an
administrative board of investigation without union representation;
2. On January 6, 2009, complainant was denied access to a representative
of his choice;
3. On January 2, 2009, complainant was notified that an administrative
board of investigation would convene regarding a security violation;
4. On December 1, 2008, complainant was given a letter instructing him to
provide the unaltered documents that he picked up from the fax machine,
which contained another employee's official privacy information;
5. On August 29, 2008, a management official (RMO1) made threatening
and abusive comments to complainant.
6. On May 2, 2008, complainant learned that a waiver of obligation was
approved for a recipient of the VA Nursing Education for Employees Program
(EISP);
7. On June 8, 2007, complainant received a letter from the Director of
Health Care Retention Officer (RMO2) denying his request for a waiver
in the amount of $4,280.00;
8. On May 21, 2007, complainant met with the EEO Program Manager (RMO3),
and informed him that RMO3 was interfering in his EEO investigation;
9. On April 17, 2007, complainant learned he was the only student in the
EISP who was not allowed to complete his nursing studies or graduate on
time, and was accused of a breach of contract, which was subjected to
wage garnishment;
10. On April 11, 2007, complainant received an e-mail from the Associate
Chief of Staff (RMO4) that the Office of Health Care Recruitment and
Retention in New Orleans needed a report of academic standing from
Excelsior College in order to complete their review of complainant's
request;
11. On April 2, 2007, complainant contacted the VA's Public Relations
Officer (RMO5) regarding his hardship waiver, but to date, she has failed
to respond to his request;
12. On January 13, 2007, the Department of Treasury threatened to garnish
all of complainant's wages despite his approved waiver;
13. On January 9, 2007, complainant requested a meeting with the Associate
Director (RMO6) regarding complainant's hardship waiver and to date,
RMO6 has not responded to his request;
14. On November 17, 2006, complainant discovered the agency had garnished
his pay $500.00 to $600.00 each pay period leaving him a net salary of
$128.11;
15. During September and October 2006, complainant's wages were garnished
by the agency for over $600.00;
16. On September 15, 2006, the agency billed complainant for the third
time in the amount of $4,297.94, and complainant did not receive an
appeal as requested;
17. During July 2006, the agency billed complainant a second time after
he applied for a hardship waiver;
18. On July 11, 2006, the agency billed complainant $4,280.00;
19. On June 5, 2006, complainant was ordered to return to work; and
20. On June 2, 2006, complainant was accused of a breach of contract
and abandoning the EISP program. He was the only VANEEP [sic] student
ordered to return to work.
The agency dismissed claims 1, 2, 3, and 4 for failure to state a
claim, finding that the alleged actions were insufficiently severe
and/or pervasive to state a claim of retaliatory harassment. The agency
dismissed the remaining claims on the grounds that they were identical to
claims previously raised in earlier complaints and the agency has included
copies of the earlier complaints in the record. However, a review
of these complaints indicates that the agency erroneously transposed
claims 4 and 5. The record reveals that claim 5 was not raised in an
earlier complaint, while claim 4 was previously raised. In addition the
agency has not shown that claims 7, 8, and 19 were previously raised.
We further find, however, that as regards claims 7 and 19, complainant's
EEO counselor contact was untimely. The record shows that these incidents
occurred on June 8, 2007, and June 5, 2006 respectively, but complainant
did not contact an EEO counselor until January 8, 2009.1
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used
as background evidence in support of a timely claim. Id. Assuming,
for the sake of argument, that claims 8 and 19 form part of the "same
unlawful practice," we find that they constitute discrete acts and hence
are untimely raised.
As regards claims 1, 2, 3, 5, and 8, we find that complainant failed
to state a claim of retaliatory harassment. In his Formal complaint,
complainant describes what happened between himself and RMO1 when
RMO1 allegedly made threatening and abusive comments. In his Formal
complaint, complainant alleges that RMO1 accused complainant of a privacy
violation when complainant came across another employee's private and
confidential information on a fax machine. Complainant said that RMO1
thanked complainant for providing the document and then told complainant
that he felt the document had been altered and requested that complainant
provide an unaltered copy. The Commission finds that the complaint fails
to state a claim under the EEOC regulations because complainant failed
to show that he was subjected to unwelcome verbal or physical conduct
involving his protected class, that the harassment complained of was
based on his statutorily protected class, and that the harassment had the
purpose or effect of unreasonably interfering with his work performance
and/or creating an intimidating, hostile, or offensive work environment.
See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982). Nor has he shown 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). Furthermore, the agency has shown that claims 4, 6,
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 20 were previously raised.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
December 3, 2009
__________________
Date
1 The FAD gives the date as January 6, 2008. However a review of the
record shows that the date was January 8, 2009.
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0120092660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092660