0120070796
03-18-2009
Felicia D. Alexander, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Felicia D. Alexander,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070796
Agency No. 200305492006102343
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 16, 2006, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of sex (female) when:
1. she was subjected to a hostile work environment when:
a) On or about January 24, 2006, she was assaulted by a coworker at
his home. On or about January 25, 2006, she notified VA management of
this assault at his home and that she had also been assaulted in the
workplace. Complainant conveyed this information to management because
she was concerned for her safety in the workplace.
b) On or about February 10, 2006, her co-workers' attitudes changed when
they stopped speaking to her and started questioning her regarding her
duties. Complainant believed it was because she reported the assault by
the co-worker to management.
c) On or about February 10, 2006, she met with an Employee Assistance
Program (EAP) representative because she was "stressed out" regarding
her safety in the workplace. The EAP representative recommended that
complainant take a "few days" off.
d) In February 2006, she started speaking with the chaplains because
she was still upset that management was not doing enough to protect
her safety. In May 2006, she believes that one of the chaplains did
not look at her in the hallway and another chaplain did not speak with
her when he passed her desk because management had "gotten to them."
e) On or about March 21, 2006, the co-worker who assaulted complainant was
released from incarceration and again complainant expressed her concern
to management regarding her safety in the workplace. Complainant also
indicated that between the time of the assault and the date of the
co-worker's release from incarceration, she continuously made management
aware of her safety concerns.
f) On or about April 20, 2006, she learned that the individual who
assaulted her was in front of the canteen even though he was informed
that the only time he was permitted on the VA campus, subsequent to his
termination in March 2006, was to receive medical treatment as a veteran.
Complainant felt management should have alerted complainant that he was
on the VA campus.
g) On or about April 25, 2006, a friend and/or co-worker of the individual
who assaulted complainant stopped in front of her car and stared angrily
at complainant. Complainant felt management still was not addressing
her safety concerns.
h) On or about May 11, 2006, the individual who assaulted complainant
was allowed to come on to the VA campus to receive treatment as a
veteran. Complainant felt management was not taking enough action to
protect her.
i) On or about June 7, 2006, a co-worker accused complainant of
not providing her the appropriate discharge papers on a patient and
complainant and the co-worker also had a discussion concerning medications
left unattended.
j) On or about June 23, 2006, someone called in the unit and rudely
inquired about visiting hours. In July 2006, the Nurse Manager told
complainant that if a family member calls and inquires about visiting
hours, to just provide the information.
2. Whether on the basis of sex (female), complainant was treated
in a disparate manner regarding time and attendance when:
a) On or about February 10, 2006, she requested three days of leave
which was disapproved.
b) On March 14, 2006, she requested leave for March 15, 2006; however,
management indicated to her that there was not enough staffing for the
unit and therefore required her to report to duty.
c) On or about June 14, 2006, complainant learned that her request for
annual leave for June 15 had not yet been approved. Consequently, she
utilized sick leave on June 15, 2006, to attend a medical appointment.
d) On or about June 21, 2006, complainant notified management that she
had a follow-up medical appointment on June 29, 2006. Consequently,
management came to complainant's work area and made a copy of her
medical appointment card and informed her upon her return on June 29,
2006, she was to bring a doctor's excuse for work.
In a decision dated October 16, 2006, the agency dismissed the complaint.
Specifically, the agency found that complainant's claim of hostile
work environment in Issue 1 above failed to state a claim because
it was not objectively hostile. The agency also maintained that it
took action in response to her claim that a co-worker assaulted her,
including terminating the co-worker. The agency also dismissed Issues
2(c) and (d) above for failure to state a claim. Specifically, the
agency noted there was no evidence that complainant was denied leave;
further, that complainant did not allege a harm with respect to a term,
condition or privilege of employment when the agency asked her for
medical documentation in support of an absence.
In its decision the agency also found that Issues (1)(a) through (e) of
complainant's hostile work environment claim could be dismissed because
they were not brought to the attention of an EEO Counselor within 45
days. The agency found that complainant contacted an EEO Counselor on
May 15, 2006, to allege discrimination. Finally, the agency dismissed
Issues (2)(a) and 2 (b) for failure to make timely contact with an EEO
Counselor.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. Where a
complaint does not challenge an agency action or inaction regarding
a specific term, condition or privilege of employment, a claim of
harassment is actionable only if, allegedly, the harassment to which
the complainant has been subjected was sufficiently severe or pervasive
to alter the conditions of the complainant's employment. See Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County
School Dist. v. Breeden, 532 U.S. 268 (2001). A complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that
the complainant cannot prove a set of facts in support of the claim which
would entitle the complainant to relief. The trier of fact must consider
all of the alleged harassing incidents and remarks, and considering them
together in the light most favorable to the complainant, determine whether
they are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
After a careful review of the record, we find the agency properly
dismissed complainant's harassment claim, as it does not state a claim
upon which relief may be granted. Even viewed in the light most favorable
to complainant, the allegations supporting this claim either pertain to
events outside of the workplace over which the agency has no control,
or do not support the incurrence of an injury upon which relief may
be granted, e.g., complainant's allegation that she met with an EAP
Counselor, who suggested that complainant take a few days off.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should 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. However,
the Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim
are part of the same unlawful practice and at least one act falls within
the filing period. See National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that
"discrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges." Id.
Finally, the Court held that such untimely discrete acts may be used as
background evidence in support of a timely claim. Id.
Turning to Issue 2, we find that the entire claim of disparate treatment
should be dismissed. Claims 2(a) and (b), which are discrete acts,
were not brought to the attention of the EEO Counselor within 45 days
of the date of the discriminatory event. Indeed, complainant did not
contact an EEO Counselor until May 15, 1006, which is more than 45 days
from the dates reported in Issue 2(a) and (b). Further, claims 2(c) and
(d) should be dismissed because they failed to allege a harm to a term,
condition, or privilege of employment for which there is a remedy.
Accordingly, the agency's final decision is hereby AFFIRMED.
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
March 18, 2009
Date
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0120070796
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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