01a51824
05-26-2005
Darleen Bamberg, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Darleen Bamberg v. Department of Veterans Affairs
01A51824
May 26, 2005
.
Darleen Bamberg,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51824
Agency No. 200R06302004103
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed. In a complaint dated November 1, 2004, complainant, a
Library Management Assistant, GS-9, at the agency's New York Harbor Health
Care System, alleged that she was subjected to discrimination on the bases
of race (Black), and national origin (African-American), in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. � 2000e et seq., on the basis of disability, in violation of
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq., on the basis of age (D.O.B. 03/07/44),
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq., and in reprisal for prior EEO
activity [statute unspecified] when:
On May 27, 2004, complainant's supervisor (S1) spoke to complainant in
an unprofessional manner; and
On July 23, 2004, S1 demanded that complainant go to her assigned area
and spoke to her in an unprofessional manner.
The Commission finds that issue (1) which occurred on May 27, 2004, was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), as complainant
failed to contact an EEO Counselor within 45 days after the alleged
discriminatory action. The record indicates that complainant did not
seek counseling until July 23, 2004 which was well beyond the time limit.
Complainant contends that she was untimely due to her sister's illness,
however, we find that this is not an adequate reason for tolling the
time limit. Complainant has not shown how or why her sister's illness
rendered her incapable of contacting an EEO counselor throughout the
full 45 day period. Additionally, complainant contends that she was
untimely because she had attended a June 6, 2004 meeting to discuss S1's
conduct toward her, and was hopeful that S1's behavior would improve.
This explanation, however, does not justify complainant's failure to
seek EEO counseling in a timely manner.
We find additionally that issue (2) fails to state a claim under the EEOC
regulations because complainant has not shown 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). Specifically, complainant contends
that on July 23, 2004, S1 ordered her to staff a mobile library unit,
which violated her medical restrictions. Complainant stated that she
told S1 that she could not perform the assignment without the consent of
her doctor. Complainant does not assert, however, that she was actually
required to perform the assignment, nor does she indicate that she was
subject to disciplinary action for failing to do so. Additionally,
complainant's supervisor states that complainant did not perform the
assignment, and was not subsequently disciplined.
Finally, to the extent that complainant is alleging she was subjected
to a hostile work environment, we find that the two incidents are
insufficiently severe or pervasive to state an actionable claim of
harassment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077
(Mar. 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
May 26, 2005
__________________
Date