Alicia Guyton, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 28, 2009
0120091856 (E.E.O.C. Aug. 28, 2009)

0120091856

08-28-2009

Alicia Guyton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Alicia Guyton,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091856

Agency No. 200406882009100023

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated February 27, 2009, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq.

Complainant is a program analyst, GS-13, with the Engineering Service in

a VA Medical Center. Her job includes monitoring utility charges, which

have significant impact on the budget from quarter to quarter, and she has

much work contact with people in budget. In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

(black and Native American), sex (female), and age (over 40) when:

1. on September 4, 2008, a Budget manager (not over complainant) got

contentious with complainant about her refusal to provide him her binder

of utility invoices, and this rose to the level of yelling, screaming,

and threatening to report her to the Director,

2. after complainant was acting upset and continued to refuse to hand

over her binder, her supervisor called agency police,

3. prior to September 4, 2008, the above Budget manager on the telephone

yelled and screamed at complainant in the presence of her supervisor, once

saying Pepco costs were too high and to call them and find out why.1

The FAD dismissed the complainant for failure to state a claim.

It reasoned that the actions were not severe or pervasive enough to rise

to the level of harassment.

On appeal, complainant reiterates the allegations in her complaint, and

contends they rise to the level of actionable harassment. In opposition

to the appeal, the agency argues the FAD should be affirmed.

Complainant wrote in her complaint that after the police arrived, they

asked what was going on, tried to calm her crying since she was upset,

and then left.

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).

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.

We find that harassment alleged in the complaint is not severe and

pervasive enough to rise to the level of actionable harassment. See,

e.g., Foster v. United States Postal Service, EEOC Appeal No. 0120091301

(complaint that management screamed and hollered at appellant one day and

threatened to have her removed from the workroom force by force by police

action failed to state a claim); Little v. Department of the Air Force,

EEOC Appeal No. 01A63045 (complaint that an agency official reported to

security police that appellant said someone needs to blow of the base

failed to state a claim).

Accordingly, the agency's decision to dismiss the complaint for failure

to state a claim 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 28, 2009

__________________

Date

1 Based on complainant's complaint, as clarified in her appeal, this

decision has more added detail to the characterization of her complaint.

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0120091856

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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