01A45335
11-22-2004
Alfred Sanchez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Alfred Sanchez v. Department of Veterans Affairs
01A45335
11-22-04
.
Alfred Sanchez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A45335
Agency No. 200R06322004102500
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 13, 2004, 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 harassment and
discrimination on the bases of sex (male) and national origin (Hispanic)
when:<1>
In September and October 2003, the complainant complained to his
supervisor about having to float to other units;
On March 3, 2004, complainant's supervisor told complainant that she
wanted to further investigate allegations raised against complainant by
a coworker and told complainant that even though the charges were found
to be unsubstantiated, she felt something did happen;
On March 30, 2004, complainant's supervisor questioned him about
urine-soaked pants found on a patient;
On May 6, 2004, complainant's supervisor asked complainant about whether
he was supposed to float to another unit;
On May 21, 2004, complainant's supervisor breached his right to
confidentiality when she asked the union representative about an agreement
regarding complainant's scheduled days off;
On June 14, 2004, complainant's supervisor told complainant that his
request for annual leave on June 28, 2004, and July 4-5, 2004, was denied.
The agency dismissed claims 1, 2, 3, and 4, for failure to state a
claim. The agency also dismissed claims 1 and 2, for untimely EEO
counselor contact. The agency referred claims 5 and 6 to the agency's
EEO counselor for processing.<2>
The record evidence shows that complainant initiated contact with an
EEO counselor on April 22, 2004. On May 18, 2004, the agency notified
complainant of his right to file an EEO complaint. On May 29, 2004,
complainant filed an EEO complaint.
EEOC Regulation 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. 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).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
We find that claims 1-4, do not involve sufficient harm or loss to
complainant's terms, conditions, or privileges of employment to render him
aggrieved nor are they sufficiently severe or pervasive to constitute
harassment under EEO regulations. Accordingly, we find the agency
properly dismissed these claims for failure to state a claim. Moreover,
with regard to claims 1-2, complainant did not bring these matters to
the attention of an EEO counselor within the 45 day limitation period
nor did complainant present persuasive argument or evidence on appeal
to warrant an extension of the time limit. Accordingly, we find that the
agency properly dismissed claims 1-2, for untimely EEO counselor contact.
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 (S0900)
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 (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
__________________
Date 11-22-04
1 Complainant also alleged that he was
subject to discrimination based on prejudice and bias. Prejudice and/or
bias are not bases of discrimination covered by the laws enforced by
the Commission. 29 C.F.R. � 1614.103(a). Hence, we find that the agency
properly dismissed prejudice and bias as bases for discrimination.
2 Claims 5 and 6 involve matters occurring after complainant completed
EEO counseling and thus were not raised during counseling nor were they
like or related to issues raised during counseling. Hence, we find
the agency's decision to refer these matters for further processing to
be appropriate.