Cynthia D. Sanders, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 13, 2005
01a54231 (E.E.O.C. Sep. 13, 2005)

01a54231

09-13-2005

Cynthia D. Sanders, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Cynthia D. Sanders v. Department of Veterans Affairs

01A54231

09-13-05

.

Cynthia D. Sanders,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A54231

Agency No. 2001-0509-2005101320

DECISION

In a complaint dated March 15, 2005, complainant alleged that based

on her race (African-American) and sex (female), she was subjected to

harassment on January 26, 2005, when her supervisor yelled at her,

made an inappropriate comment to her and followed her to her car.

Complainant also alleged that she was treated in a disparate manner with

respect to overtime. Specifically, she maintained that her requests for

overtime on January 29, 2005 and January 30, 2005, were not considered.

Complainant also maintained that for the past two and a half years,

her supervisor has favored male employees over female employees when

granting overtime.

Upon review, the Commission finds that the harassment portion of

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1) for failure to state a claim. The Commission finds

that the complaint fails to state a claim under the EEOC regulations

because complainant failed to show that she suffered harm or loss with

respect to a term, condition, or privilege of employment for which there

is a remedy. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). The Commission finds that complainant

has not stated an actionable claim of harassment because her claim of

hostile work environment is specific to only one day, January 26, 2005.

Moreover, we find the few examples of alleged discriminatory behavior

she cites, are not severe and pervasive enough to rise to the level

of hostile work environment. Accordingly, the agency's final decision

dismissing this portion of complainant's complaint is affirmed.

The Commission finds, however, that complainant's complaint regarding

overtime was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. The record evidence shows that contrary

to the agency's finding, complainant did discuss the issue of overtime

with the EEO Counselor. In fact, the January 26, 2005, incident was

the result of the assignment of overtime.

As such, the Commission finds that complainant has shown an injury or

harm to a term, condition, or privilege of employment for which there

is a remedy. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). Accordingly, the agency's final decision

dismissing the overtime portion of complainant's complaint is reversed.

The complaint is hereby remanded to the agency for further processing

in accordance with this decision and the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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

____09-13-05______________

Date