0120092107
08-26-2009
Albert McNeill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Albert McNeill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092107
Agency No. 200305542008104651
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 16, 2009, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under the
Rehabilitation Act when:
1. On September 17, 2008, complainant was threatened with disciplinary
action;
2. On September 15, 2008, complainant submitted a request for annual
leave during the upcoming holiday season but the request was not approved
until December 20081; and
3. On or about September 12, 2008, complainant was told that effective
September 28, 2008, his tour of duty would change from 6:30am - 3:00pm
to 8:00am - 4:30pm.
The agency dismissed the claims for failure to state a claim. The agency
noted that despite the threat of disciplinary action, no disciplinary
action was ever undertaken. As regards the delayed leave approval,
the agency noted that leave was eventually granted and complainant was
able to take advantage of the leave approval. As regards the change
in his tour of duty, the agency again found that no change took place.
The agency further found that the incidents, even when viewed together,
were insufficient to state a claim of retaliatory harassment. Complainant
has not offered any argument on appeal and the agency requests that we
affirm the FAD.
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 participation in
protected activity, that the harassment complained of was based on his
participation in protected activity , 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 incurred any adverse treatment that is reasonably
likely to deter complainant or others from engaging in protected activity.
In this regard we note that while complainant's leave approval was
delayed, it was nevertheless eventually approved and the record shows
that he was able to take advantage of the leave. Complainant does not
allege that he incurred any adverse treatment, such as an inability to
buy airplane tickets, or stress from relatives anxious to see him over
the holiday period, because of the delay in the leave being approved.
Nor has he shown that the mere threat of discipline or being told his
work schedule would be changed, when such threats were never carried out,
resulted in the sort of adverse treatment that would be reasonably likely
to deter employees from engaging in protected activity.
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
August 26, 2009
__________________
Date
1 Complainant has not specified the exact date when the leave was
approved.
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0120092107
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092107