0120110602
01-12-2012
Gloria Marigny, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gloria Marigny,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110602
Agency No. 200H06142010104397
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated October 25, 2010, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. Upon review, the Commission finds that
Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Licensed Practical Nurse, GS-0621-5 at the Agency’s Medical Center
in Memphis, Tennessee. On August 10, 2010, Complainant initiated contact
with an EEO counselor. On September 7, 2010, Complainant filed a formal
complaint alleging that the Agency subjected her to harassment on the
bases of race (African-American), sex (female), and age (not specified)
when, during a “fact-finding” on August 6, 2010, she was accused
of not performing her duties.1 The Agency’s final decision dismissed
the complaint. From that decision Complainant brings the instant appeal
but offers no argument in support of it.
ANALYSIS AND FINDINGS
Commission regulations require an agency to accept a claim from an
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, .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). When the complainant does not
allege facts showing he or she is aggrieved within the meaning of the
regulations, the agency shall dismiss the complaint for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a)(1).
Where, as here, 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 Complainant has allegedly been subjected was sufficiently severe
or pervasive to alter the conditions of Complainant's employment. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997). However, the Commission has found that isolated remarks or comments
unaccompanied by a concrete agency action usually are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request
No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request
No.05940695 (Feb. 9, 1995).
In this case there nothing in the complaint or the supporting
documentation that could reasonably support a conclusion that Complainant
was subjected to conduct that was severe or pervasive. The allegation
is that she was subjected to criticism about her work performance on
one occasion. Even taking the allegation as true, it is insufficient
to state a claim of hostile work environment harassment. Nor does
the complaint allege any fact that could support an inference that the
allegedly harassing behavior was based on any protected basis.
CONCLUSION
For the foregoing reasons, the Agency's final decision dismissing
Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 12, 2012
__________________
Date
1 The claim regarding the events on August 6, 2010 was the only matter
brought to the attention of the EEO counselor. The formal complaint
contains brief references to other matters, such as “falsify records”
and “transfer rejection” which may constitute attempts to assert
additional claims. The Agency properly dismissed these claims, pursuant
to 29 C.F.R. § 1614.107(a)(2), as not “like or related” to matters
addressed with the EEO counselor.
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0120110602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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