01986845
05-12-2000
Billie J. Owen, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Billie J. Owen v. Department of Veterans Affairs
01986845
May 12, 2000
Billie J. Owen, )
Complainant, )
)
v. )
) Appeal No. 01986845
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On September 14, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her complaint
of unlawful employment discrimination in violation of Title VII.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming she was subjected to
harassment based on sex. Informal efforts to resolve complainant's
concerns were unsuccessful. On May 28, 1998, complainant filed a formal
complaint. The agency framed the complaint as follows:
On March 13, 1998, complainant was harassed when she was exposed
to violations of her locker and desk area. Complainant also received
copies of some long and personal e-mail messages which were sent to her
supervisor, manager, and others.
On August 7, 1998, the agency issued a FAD dismissing the complaint for
failure to state a claim. Specifically, the agency concluded that the
March 13, 1998 incidents were isolated events that did not affect a term,
condition, or privilege of complainant's employment.
On appeal, complainant argues that her complaint encompasses more than
"just a one-time situation" of harassment. Complainant contends that
she has been subjected to on-going harassment for years. According
to complainant, the EEO Counselor believed that only the most recent
occurrence, rather than years of claims, needed to be reported. The other
incidents complainant raises on appeal include: placement of supervisory
notes in her personnel folder; assignment to a detail for six to eight
weeks during which her permanent position was abolished; threats by a
supervisor when complainant questioned how he handled certain matters;
and the refusal of other employees to speak to her.
In response, the agency argues that it properly dismissed the only matter
addressed in the instant complaint. Moreover, the agency contends that
the incidents raised on appeal were not discussed with the EEO Counselor
and that therefore, complainant should be advised to seek counseling on
those matters.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
A review of the Counselor's Report indicates that complainant received
counseling on the March 13, 1998 incident. The Counselor's Report also
describes an incident where a male co-worker made a personal banner on
his computer implying, without naming complainant, that he did most of
her work. Complainant also told the EEO Counselor that other employees
tampered with her food, and that she is afraid that a coworker that drives
past her home on his way to work may stop at her house and tamper with
her mail.
We agree with the agency, that the alleged March 13, 1998, incident
fails to state a claim. Complainant has not shown how the alleged events
resulted in a harm or loss regarding a term, condition, or privilege of
her employment. Moreover, even when considered with the other incidents
raised with the EEO Counselor, we do not find that the dismissed claim
is sufficient to state a claim of discriminatory harassment. See Cobb
v. Department of Treasury, EEOC Request 05970077 (March 13, 1997).
As a final matter, the Commission notes that on appeal, complainant
identified other incidents of alleged discrimination. Although
complainant contends that they are part of the instant complaint of
harassment, the record reveals that the matters presented on appeal were
not raised with the EEO Counselor. Therefore, complainant is advised to
initiate contact with an EEO Counselor if she is interested in further
pursuing these matters.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.