0120102352
09-21-2010
Danny J. Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102352
Agency No. 200P06492010101480
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 8, 2010, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of sex (male), disability1, and reprisal for prior protected EEO activity under a statute that remains unspecified in the record when:
1. Between December 11 and 31, 2009, Complainant was subjected to harassment from his supervisor (S: female, no claimed disability);
2. On an unspecified date, the Agency breached a contract2 dated August 3, 2009 between Complainant and the agency;
3. On an unspecified date, management did not properly train complainant for his tour of duty;
4. On an unspecified date, complainant is/was unable to work due to harassment; and
5. On an unspecified date, Complainant was told that the Agency had made an error in his pay and he was owed money by the Agency.
The Agency dismissed claim 1 for failure to state a claim, finding that the actions complained of were insufficiently severe to state a claim of harassment. The Agency dismissed the remaining claims pursuant to 29 C.F.R � 1614.107(a)(2) for raising matters that had not been brought before an EEO Counselor and were not like or related to matters that had been brought before an EEO Counselor. On appeal, Complainant goes into more detail about the harassment but provides no dates of these incidents so it is unclear if these are additional incidents that occurred after the incidents between December 11 and 31, 2009, or if these describe the December 2009 events but in more detail. The Agency requests that we affirm the FAD.
ANALYSIS AND FINDINGS
We note initially that with regards to claims 2, 3, and 5, the Agency correctly dismissed these claims for raising matters that had not been brought before an EEO Counselor and were not like or related to matters that had been brought before an EEO Counselor. With regard to claim 4, however, we note that Complainant raised the matter of harassment before the Counselor and hence we find that claim 4 is like or related to such a matter.
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17 (1993).
Complainant alleged that he was subjected to a hostile work environment and harassment. To establish a prima facie case of hostile environment harassment, Complainant must show the existence of four elements: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998); 29 C.F.R. �1604.11.
Complainant alleges that on two occasions S "slowly looked me up and down." Complainant further alleges that on another occasion, after he had returned to the workplace from an EAP appointment, S angrily asked him where he had been and when he told her, S asked for proof and told him to obtain authorization before leaving his duty station. Complainant alleges that on December 31, 2009, S presented him with a memorandum confirming their conversation in which she advised him that she found his comment that she looked him up and down to be offensive, laden with sexual innuendo, and inappropriate for the workplace. The memorandum also instructed complainant not to use such language with her again. In addition, as noted in claim 4, Complainant alleges that he was unable to work due to the harassment.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Nor has he shown he 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). Complainant alleges that the harassment has caused him emotional harm. We note that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994). Accordingly, the agency's final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
September 21, 2010
__________________
Date
1 Complainant's disability is handwritten on his Formal Complaint but is illegible.
2 The record shows that this was not a settlement agreement of a prior EEO complaint.
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0120102352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102352