0120091843
07-23-2009
Arthur J. Morris, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Arthur J. Morris,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091843
Agency No. 200P06922009100781
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated February 25, 2009, 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, a kinesiotherapist, alleged that he was subjected to
discrimination on the bases of sex (male), religion (Christian), and
reprisal for prior protected EEO activity when1:
1. On November 24, 2008, the facility announced the position of physical
therapist, rather than kinesiotherapist, which would have lightened
complainant's workload.
2. On December 17, 2008, a female co-worker of the complainant, who had no
supervisory or other authority over complainant, advised another employee
of the work unit that the complainant would be assigned additional duties
involving a knee group.
3. On December 19, 2008, complainant communicated to his chain of command
advising them of the statement of his female co-worker regarding the
knee group assignment, and he did not receive a response prior to his
speaking with his EEO Counselor.
4. On December 24, 2008, complainant was advised by his supervisor that
the initiation of a knee group was not assigned to the complainant.
5. On December 24, 2008, complainant was directed by his supervisor not
to send emails to his second and third line supervisors.
The FAD dismissed the claims for failure to state a claim because they
did not rise to the level of actionable harassment in that they were
not sufficiently pervasive or severe.
On appeal, complainant contends that the FAD did not state claims 1, 2,
and 5 correctly, and that his complaint states a claim. After reviewing
the record, we modified the FAD's characterization of claims 1 and 5.
As an initial matter, we find the issues, as stated in this decision,
accurately capture complainant's claims. 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.
Here, viewing all allegations as a whole, if true, do not qualify as a
hostile work environment and thus do not rise to an actionable harassment
claim. Regarding claim 1, we find that the agency's action to announce
the position of physical therapist rather than kinesiotherapist fails
to state a claim because this was in no way directed at complainant,
and does not constitute a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.2
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). Claims 2 and 4 do not qualify as severe or pervasive because
complainant's supervisor informed him that he was not assigned to a knee
group and therefore the complainant was not required to do the extra work.
Regarding claim 3, whether or not the supervisor responded as quickly
as the complainant would have liked, is not severe enough to constitute
a hostile working environment. On claim 5, the complainant was still
able to communicate with his chain of command, despite his supervisor's
directive. For example, complainant could talk to them on the phone
or in person. Therefore, claim 5, also does not qualify as severe or
pervasive enough to qualify as a hostile work environment. We also find
that a reasonable person would not likely be deterred from engaging in
EEO activity as a result of the supervisor's alleged actions.
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
July 23, 2009
__________________
Date
1 Complainant also alleged discrimination based on marital status
(married) and age (36). However, the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. only covers
those aged 40 and older. Also, the Commission has no jurisdiction over
marital status claims. 29 C.F.R. � 1614.103.
2 To the extent that complainant is contending that he was discriminated
against when he was overburdened, this claim states the same claim stated
in prior complaints, i.e., agency complaint numbers 200P-0692-2007101544,
accepted issue G, and 200P-0692-2008104771, accepted issue 2g. The
Commission's electronic docketing system shows that these complaints
are pending before EEOC hearings units under EEOC hearing numbers,
respectively, 551-2008-00037X; and 550-2009-00293 & 00295.
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0120091843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120091843