0120091050
05-28-2009
Ute Poole, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Ute Poole,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091050
Agency No. 200P06442008103760
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 14, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of national origin (German), disability (unspecified), age (unspecified),
and reprisal for prior protected EEO activity under a statute that was
unspecified in the record when:
1. On January 28, 2008, a management official (RMO1) closed the inpatient
education program under complainant's charge and complainant was
instructed to pack her belongings and move, only to be told to delay her
move and to instead train the nursing staff on how to document patient
education;
2. On February 5, 2008, another management official (RMO2) informed
complainant that she would be moving to the Transfer Coordinator Program
and the following day, complainant was informed that she would not be
moving to the Transfer Coordinator Program but would be assigned to
making phone calls for discharged patients;
3. On February 18, 2008, RMO2 gave complainant two hours to pack her
belongings and move out of her office;
4. On February 19, 2008, complainant received 1 1/2 hours of training
from an instructor complainant considered incompetent;
5. On February 19, 2008, another management official (RMO3) told
complainant to pack and move to another building and denied complainant's
request for assistance in moving.
6. Due to multiple job assignments and managerial changes, complainant had
to withdraw from the University of Phoenix' MSN/FNP program, resulting in
the loss of complainant's NNEI scholarship, failure to qualify for the
April 2008 Certified Diabetic Educator examination, and great financial
and emotional expense.
7. On July 11, 2008, complainant voluntarily applied for disability
retirement.
The agency dismissed claims 1 and 2 for untimely EEO counselor contact
and the remaining claims for failure to state a claim. Specifically, the
agency found that claims 1, 2, and 7 were discrete acts that were subject
to the regulatory time limits and that complainant did not contact an EEO
counselor until more than 45 days after the incidents in claims 1 and 2.
The agency next found that the remaining actions were insufficiently
severe to state a claim of harassment and that claim 7 did not state a
claim of disparate treatment.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive:" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
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 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.
The record shows that complainant first contacted an EEO counselor on
July 11, 2008. As such, all discrete acts that occurred more than 45 days
before this date are time-barred, although they may still be considered as
background evidence of a timely hostile work environment claim. See id.
Transfers are considered "discrete acts" and hence we find that claims
1 and 2 are untimely.
As regards the remaining claims, we find that the complaint fails to
state a claim under the EEOC regulations because complainant failed
to show that she was subjected to unwelcome verbal or physical conduct
involving her protected classes, that the harassment complained of was
based on her statutorily protected classes, and that the harassment
had the purpose or effect of unreasonably interfering with her 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 complainant shown she
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). Finally, we
find that complainant has not shown that the actions complained of are
"reasonably likely to deter the charging party or others from engaging
in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)
at 8-13, 8-14 (May 20, 1998). 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
May 28, 2009
__________________
Date
2
0120091050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091050