01997089
02-15-2001
Andrew W. Harris v. Department of Veterans Affairs
01997089
February 15, 2001
.
Andrew W. Harris,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01997089
Agency No. 99-1646
DECISION
I. INTRODUCTION
On August 11, 1999, the agency dismissed complainant's claims of
discrimination in Agency No. 99-1646. Complainant timely appealed the
dismissal to this Commission. On appeal, complainant argues that he and
his representative raised all of the issues from his formal complaint
with the EEO Counselor.
II. BACKGROUND
In February and March 1998, complainant filed formal complaints alleging
harm on the bases of race (African-American), color (black), and in
reprisal for prior EEO activity when he received substandard treatment
from agency physicians, and was removed from a Vocational Rehabilitation
Program work-study job. The agency dismissed these complaints on October
13, 1998, and complainant appealed in EEOC Appeal No. 01991787.
Complainant filed a separate formal complaint on January 26, 1999,
alleging harm from nonselections, harassment from August 1997 to
present, a January 1998 performance appraisal, and time/attendance
issues from January 1998. On March 10, 1999, the agency accepted a
claim of nonselection for Vacancy Announcement 98-053, but dismissed
the remaining claims for untimely counselor contact.
Meanwhile, complainant sought EEO counseling on March 4, 1999, Agency
No. 99-1646. In counseling, complainant discussed an altercation he
had with a Human Resources (HR) official. Complainant contends that he
went to drop-off a letter; when the official saw complainant he left his
office, crossed his arms, and glared at complainant. Complainant told
the official that he need not follow complainant and harass him, to which
the official responded, �this is my damn office.� The Counselor's Report
does not reference any other matter.
Complainant and the agency then entered into settlement agreements
dated April 16, 1999 and May 10, 1999. In both agreements, �Complainant
agree[d] to withdraw any and all active discrimination complaints.�<1>
On August 2, 1999, complainant filed a formal complaint for Agency
No. 99-1646, alleging harm in reprisal for prior EEO activity from:
Harassment August 1997 to present; Appraisal/proficiency report from
January 1998; Wrongful termination in January 1998 to June 1999; Refusal
to hire from September 1997 to June 1999; Refusal to accept complainant
into the Vocational Rehabilitation work-study program from September 1997
to June 1999; Defamation of character from August 1997 to the present;
and Violations of personal and medical privacy from January 1998 to
the present. Complainant also contended that the agency breached the
April and May 1999 settlement agreements.<2>
The agency dismissed Agency No. 99-1646 on August 11, 1999. In its
decision, the agency dismissed the harassment, performance appraisal,
and termination claims for having been raised in prior complaints.
The agency also dismissed the entire complaint, with the exception of
the counseled harassment incident, for not having been raised with an
EEO Counselor. The incident of harassment involving the HR official was
dismissed for failure to state a claim. The agency informed complainant
that his claim of breach would be handled in a separate decision.<3>
III. ANALYSIS AND FINDINGS
The agency may dismiss complaints that were not brought to the attention
of an EEO Counselor, and are not like or related to the matters raised.
See 29 C.F.R. � 1614.107(a)(2). The agency also may dismiss complaints
stating the same claim pending before or decided by the agency or
Commission. See 29 C.F.R. � 1614.107(a)(1).
The record clearly shows that complainant raised claims of harassment,
evaluation/performance appraisal, and termination in prior complaints.
Accordingly, the agency's dismissal of these matters was proper. Further,
the Commission finds that complainant only discussed a single incident
of harassment with the EEO Counselor; complainant provided no evidence
to suggest otherwise. The matters not discussed with the counselor
are not like or related to the issue raised in counseling. Therefore,
the agency's dismissal of these claims also was appropriate.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege harm to a term, condition, or privilege of employment on
the basis of race, color, religion, sex, national origin, age, disabling
condition, or reprisal for prior protected activity. Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Hostile
work environment harassment is actionable if it sufficiently severe
or pervasive to alter the conditions of complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
The remaining incident of harassment is not severe or pervasive.
Although complainant has raised claims of harassment in other contexts,
they were the subject of settlement agreements, and involved different
officials, chains-of-command, time frames, and incidents. The single,
isolated incident discussed with the counselor in the present complaint
does not state a claim. Therefore, the agency properly dismissed the
remaining harassment claim.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 15, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1As a result of the withdrawal in the settlement agreements, the
Commission administratively closed EEOC Appeal No. 01991787.
2Complainant filed his formal complaint in Agency No. 99-1646 after
signing the settlement. Therefore, the Commission finds that the
complaint is not subject to the withdrawal of active discrimination
complaints in the settlement agreement.
3The Commission will address the issue of breach in EEOC Appeal
No. 01A00935.