Felicia D. Alexander, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMar 18, 2009
0120070796 (E.E.O.C. Mar. 18, 2009)

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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