01a02940
07-28-2000
Edna L. Montgomery, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Edna L. Montgomery v. Department of Veterans Affairs
01A02940
July 28, 2000
.
Edna L. Montgomery,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02940
Agency No. 4H320015499
DECISION
Edna Montgomery (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated January 28, 2000, dismissing
her 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> In her complaint, complainant alleged that
she was subjected to discrimination on the basis of race (black) when:
she was denied training on May 26, 1999;
she did not receive orientation on May 26, 1999; and
she was subjected to discriminatory working conditions on October 13,
1999.
After reviewing the record, the agency determined that complainant
intended to allege that she was subjected to harassment as evidenced by
the incidents described above. The agency added detail to claim no. 3,
based on the EEO counselor's report, and rephrased it as �[complainant's]
supervisor asked [her] to explain why two needles were lost during a
Vaso Vasotomy operation on or about October 13, 1999, and [her] staff
did not report the incident until the next day.�
The agency dismissed claim nos. 1 and 2 pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(7)), noting that complainant failed to respond to a letter
requesting an explanation for why she did not initiate EEO counseling
in regard to these claims until October 14, 1999, far past the 45 day
requirement. The agency noted that the letter requesting information
warned complainant that failure to respond within 15 days of receipt
could result in dismissals of her claims.
The agency then dismissed claim no. 3 pursuant to 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereby referred to as 29 C.F.R. �
1614.107(a)(1), stating that complainant failed to establish that she
was aggrieved, and that claim no. 3 therefore did not state a claim.
CONTENTIONS ON APPEAL
Complainant's submission on appeal relates to her non-selection for
the Nurse Manager of the Operating Room position which she applied
for in April 1999. Complainant alleges that the Associate Director
of Nursing (DN) told her on May 26, 1999 that she would not be
appointed to the position, despite the fact that she was selected by
the selection committee, because of her lack of management experience.
Complainant notes that she served as Acting Nurse Manager until someone
else was appointed in October 1999 and that while she was not given an
orientation before performing these duties, the selectee was given a
month of orientation.
The agency asks that its FAD be affirmed.
FINDINGS AND ANALYSIS
As an initial matter, we note that the non-selection complainant raises
on appeal, while mentioned during counseling sessions, was not alleged
in her formal complaint. Complainant clearly alleged �training, 5/26/99,�
�working conditions, 10-13-99,� and �other: lack of orientation, 5/26/99"
on the formal complaint and did not include any attachments to indicate
that she also was filing a complaint concerning her non-selection.
We will therefore not consider the non-selection on appeal.
Turning to those allegations raised in the complaint, EEOC Regulation
64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.105(a)(1)) requires that complaints
of discrimination be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
Moreover, 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(7) allows an agency
to dismiss a complaint if a complainant fails to respond to a written
request to provide relevant information within 15 days of receipt,
provided that the request included a notice of proposed dismissal.
In the case at hand, the events comprising claim nos. 1 and 2 took place
in May 1999. Complainant did not contact an EEO Counselor until October
1999, far past the required 45 day time period. The agency requested an
explanation for this delay, noting that failure to respond could lead
to dismissal, but complainant did not respond. On appeal, complainant
does not explain either her untimely contact or her failure to respond
to the agency's request for an explanation. The agency's dismissal of
these claims is therefore AFFIRMED.
Turning to claim no. 3, we find that it fails to state a claim. First,
as there is no evidence that S1 took any action against complainant after
requesting an explanation for the loss of needles during a procedure,
complainant failed to establish that she suffered a personal loss or
harm with respect to a term, condition, or privilege of employment.
Second, the complaint also fails to state a claim of harassment, as
the action alleged is not sufficiently severe or pervasive to alter the
conditions of complainant's employment. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993).
It is well-settled that, unless the conduct is very severe, a single
incident or a group of isolated incidents will not be regarded as
creating a discriminatory work environment. See James v. Department of
Health and Human Services, EEOC Request No. 05940327 (September 20, 1994);
Walker v. Ford Motor Company, 684 F.2d 1355 (11th Cir. 1982). Here, one
discussion with a supervisor does not rise to the level of harassment.
Even if claim nos. 1 and 2 are deemed timely under a continuing violation
theory and considered in the determination, the conditions alleged by
complainant in her complaint were not sufficiently severe or pervasive
to alter her working conditions. The agency's dismissal of claim no. 3
for failure to state a claim is therefore AFFIRMED.
Accordingly, after a careful review of the record, we find that the
agency properly dismissed the complaint and hereby AFFIRM the dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.