01A33315_r
09-11-2003
William Shelton, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
William Shelton v. Department of Veterans Affairs
01A33315
September 11, 2003
.
William Shelton,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33315
Agency No. 2004-0540-2003101157
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 14, 2003, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
EEO activity when:
1. On November 21, 2002, a female doctor kept looking at complainant
as he was preparing to leave the parking lot.
2. On November 22, 2002, a female doctor kept staring at complainant
as he drove away from his place of employment.
3. On December 11, 2003, the Patient Care Coordinator distributed
complainant's unlisted telephone number in a cascade list, thereby
failing to honor his request that it not be shared.
4. On an unspecified date, complainant submitted an unsigned memorandum
containing comments about his proficiency and that, on January 9, 2003,
the Patient Care Coordinator gave him counseling, which makes reference
to his proficiency due March 26, 2003.
5. On January 6, 2003, the Patient Care Coordinator gave complainant
written counseling (which was amended as verbal counseling on January 27,
2003) pertaining to his sick leave usage and sick leave restrictions.<1>
The agency dismissed the claims pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
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. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With regard to claim 5, we find that the agency's dismissal of the claim
for failure to state a claim was improper. The record reveals that,
on January 6, 2003, complainant received a written counseling memorandum
from the Patient Care Coordinator of Outpatient Services pertaining
to his sick leave usage from April 2002 to January 6, 2003 and sick
leave restrictions. On January 27, 2003, the Patient Coordinator gave
complainant an amended counseling memorandum, which included crossing
out �Written� and handwriting in �Verbal� in the subject portion.
The January 6, 2003 memorandum states that complainant's leave usage
�increase the workload of coworkers, increase overtime pay/hours, and
interfere with the continuity of patient care.� The Commission finds
that complainant is aggrieved by the memorandum at issue in claim 5.
The agency has not claimed that the January 6, 2003 written counseling
memorandum is not in complainant's employment record. Also, there is no
indication in the record that the written counseling memorandum is not
in complainant's employment record. Therefore, we find that claim 5,
as defined in this decision, was improperly dismissed for failure to
state a claim.
Regarding claims 1 through 4, we concur with the agency and find that
complainant is not aggrieved as a result of the acts alleged these claims.
Nothing in the record indicates that complainant suffered any 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). Moreover, we do not find that
the claims 1 through 4 are sufficiently severe so as to state a claim
of harassment even when considered with claim 5.
Accordingly, the agency's decision to dismiss claims 1 through 4
(as defined in this complaint) is AFFIRMED. The agency's decision to
dismiss claim 5 (as defined in this complaint) is REVERSED and claim
5 is hereby REMANDED to the agency for further processing in accordance
with the Order herein.
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
September 11, 2003
__________________
Date
1Although the agency defined the January 6, 2003 incident and the January
27, 2003 incident as separate incidents, the Commission finds that both
incidents should be considered as one claim. Because of our combining
of these incidents, we have renumbered some of the claims.