0120091434
06-23-2009
Debra E. Folcarelli, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Debra E. Folcarelli,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091434
Agency No. 200H-0650-2008104348
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated January 22, 2009, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
In her formal complaint, complainant alleged that the agency discriminated
against her on the bases of disability (spinal injury) and reprisal for
prior protected EEO activity when her branch chief (S1) (a) on September
26, 2008, issued her a letter of admonishment1 for an incident on August
27, 2008 and (b) subjected her to hostile work environment harassment
when, on October 31, 2008, she expressed negative opinions about
complainant's performance, motivation level, competency and veracity
regarding leave usage in a mediation meeting.
In its January 22 final decision, the agency dismissed (a) and (b)
pursuant to 29 C.F.R. � 1614.107(a)(4) for electing to pursue the matters
in a negotiated grievance process. Specifically, the agency stated that
complainant filed a grievance regarding the September 22 admonishment
and received the negative comments alleged during a mediation session
with her supervisor. The instant appeal from complainant followed.
On appeal, complainant requested an appeal of actions since April 2005
that singled her out, and stated that she had no choice but to contact
a union representative and attempt mediation.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning the matter identified in claim (a). Additionally, the record
shows that under the terms of the agency's union agreement, employees have
the right to raise matters of alleged discrimination under the statutory
procedure or the negotiated grievance procedure, but not both. As the
record indicates that complainant elected to pursue the matter within
the grievance procedure, we find that the agency properly dismissed claim
(a) pursuant to 29 C.F.R. � 1614.107(a)(4).
Further, as to (b), we find that the matter fails to state a claim under
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. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Moreover, to the extent complainant
is claiming a discriminatory hostile work environment, we find that the
events described, even if proven to be true, would not indicate that
complainant has been subjected to harassment that was sufficiently
severe or pervasive to alter the conditions of her employment. See
Cobb v. Dep't of the Treasury, Request No. 05970077 (March 13, 1997).
Based on the above, we AFFIRM the final agency decision dismissing
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
June 23, 2009
__________________
Date
1 We note that, in a letter dated October 20, 2008, S1 withdrew the letter
of admonishment in response to a first step grievance for complainant.
Complainant acknowledged a grievance.
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0120091434
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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