01992424
02-23-2001
Cottrell N. Hearst, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Cottrell N. Hearst v. Department of Veterans Affairs
01992424
February 23, 2001
.
Cottrell N. Hearst,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01992424
Agency No. 98-2664
DECISION
On February 1, 1999, complainant filed a timely appeal with this
Commission from an agency decision pertaining to 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.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. �1614.405.
On August 11, 1998, complainant contacted the EEO office regarding claims
of discriminatory harassment based on reprisal. Complainant claimed
that since his return to work in May 1998, agency police tailgate or
flash their lights at him when he is driving around the medical center.
In addition, complainant claimed that he was issued a ticket for speeding
on August 6, 1998. Informal efforts to resolve complainant's concerns
were unsuccessful.
On September 24, 1998, complainant filed a formal complaint form wherein
he checked the following issue boxes: harassment, �5/11/98 to present�;
reinstatement, �5/11/98"; and other, �reprisal for winning in the Merit
Board 5/11/98.�
On January 7, 2000, the agency issued a decision dismissing the complaint
pursuant to 29 C.F.R. � 1614.405(a)(1), (a)(2), and (a)(3). The agency
noted that the Office of Resolution Management (ORM) sent complainant
a letter, which was received on November 14, 1998, requesting that
complainant provide specific events and dates; a reason for his untimely
EEO Counselor contact; and an explanation for his failure to raise certain
matters with the EEO Counselor. According to the agency, complainant
never provided a response. The agency construed the harassment claim
raised in the formal complaint, as a claim relating to the purported
actions of agency police that culminated in the issuance of a citation,
and dismissed this matter for failure to state a claim. The remaining
issues raised in the complaint were dismissed for untimely Counselor
contact; raising a matter that was not counseled; and failure to
cooperate.
On appeal, complainant reiterates the circumstances surrounding his
harassment claim, regarding the agency police. With respect to the
agency's request for additional information, he argues that it asked
for the same information he provided the EEO Counselor.
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).
Here, complainant contends he was harassed when VA police officers
tailgated him and flashed their lights. In addition, he was issued a
traffic citation on August 6, 1998. We do not find that the alleged
incidents relate to a term, condition, or privilege of complainant's
employment. Moreover, there is no indication that any personnel action
was ever initiated against complainant on account of the citation.
Complainant is not rendered an �aggrieved� employee by the alleged
events, nor are they sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
We note that complainant also raised claims concerning �reinstatement� and
�other� in his formal complaint, citing May 11, 1998 as the relevant date.
However, based on a review of the Counselor's Report, it appears that
the alleged incidents with the VA police were the only matters counseled.
Complainant's reinstatement claim and the alleged �reprisal for winning
in the U.S. Merit Board� do not add to or clarify the issues raised
with the counselor. Therefore, we find that these claims were properly
dismissed by the agency on the grounds that they were not brought to the
attention of the EEO Counselor, and are not like or related to matters
for which complainant underwent EEO counseling.
Because we affirm the agency's decision to dismiss the claims for the
reasons stated herein, we do not find it necessary to determine whether
the complaint was properly dismissed on other grounds.
Accordingly, the agency's decision dismissing the complaint was proper
for the reasons set forth herein and is hereby 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 23, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.