01A34368
10-07-2004
Cindy L. Elliot, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cindy L. Elliot v. Department of Veterans Affairs
01A34368
October 7, 2004
.
Cindy L. Elliot,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A34368
Agency No. 200I-0619-2002102960
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant, a Registered Nurse at the agency's Montgomery, Alabama
Medical Center, alleged that the agency had discriminated against her on
the basis of reprisal (prior EEO activity) when she was harassed with
regard to the following incidents: (a) on February 2, 2002, the Nurse
Manager (NM) did not assign her to serve as Charge Nurse, and she has had
less-frequent assignments as Charge Nurse since her prior EEO activity;
(b) on February 27, 2002, the NM issued complainant a letter of proposed
reprimand because of several counts of inappropriate conduct; (c) on
March 15, 2002, the NM sent complainant home on administrative leave
because of complainant's inappropriate comments and their difficulty with
communication; (d) on March 19, 2002, the NM denied complainant's request
for leave to attend training; (e) on February 2, 2002, the NM monitored
complainant's telephone conversations; and (f) on February 3, 2002, the NM
questioned another nurse about a situation between complainant and that
nurse that had occurred in the Intensive Care Unit. Complainant also
alleged reprisal discrimination in connection with five other incidents
which the agency dismissed as having been raised in a prior EEO complaint.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The agency's partial dismissal of the complaint was proper, as the record
reflects that the incidents encompassed by the partial dismissal were the
subject of a prior EEO complaint. Further, with regard to the remaining
claims, the preponderance of the evidence of record does not establish
that discrimination occurred.<1>
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
October 7, 2004
__________________
Date
1The agency found that complainant's claim did not constitute one of
harassment because it involved �no personal slurs, or other denigrating or
insulting verbal or physical conduct ....� It is noted that �personal
slurs� and the like are not a prerequisite to establish a claim of
harassment; any manner of discriminatory conduct may suffice. See McCleod
v. Social Security Administration, EEOC Appeal No. 01963810 (August 5,
1999) (setting forth the prima facie case of harassment). Nonetheless,
because the preponderant evidence of record does not support a finding
of reprisal discrimination with regard to any of the discrete incidents
set forth above, it also does not support a finding of harassment based
on reprisal.