Gustave J. Demauro, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 17, 2000
01993195 (E.E.O.C. Feb. 17, 2000)

01993195

02-17-2000

Gustave J. Demauro, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Gustave J. Demauro, )

Complainant, )

)

v. ) Appeal No. 01993195

) Agency No. 98-3986

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On March 2, 1999, complainant filed a time appeal with this Commission

from a final agency decision (FAD) pertaining to his complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The

Commission accepts the appeal in accordance with EEOC Order No. 960,

as amended.

Complainant contacted the EEO office regarding claims of discrimination

based on physical disability (PTSD).<2> Informal efforts to resolve

complainant's concerns were unsuccessful. Accordingly, on November 27,

1998, complainant filed a formal complaint.

The agency framed the claim as follows:

On September 22, 1998, complainant was asked by his supervisor to provide

additional medical documentation from his physician concerning an illness

that occurred August 17 - 21, 1998. Complainant viewed this request

as harassment.

On February 2, 1999, the agency issued a FAD dismissing the complaint for

failure to state a claim. Specifically, the FAD stated that complainant

failed to establish how he was harmed by the alleged agency action.

Further, there was no indication that the alleged event was more than an

isolated comment, which does not rise to the level of creating a hostile

work environment.

On appeal, complainant reiterates his arguments regarding the merits of

his claim. According to complainant, during the conversation regarding

a doctor's note, his supervisor made derogatory statements to him and

later falsely accused complainant of threatening him.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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, .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

22, 1994).

Complainant contends that he was harassed when his supervisor asked

him for additional medical documentation regarding his absence due

to illness. The record contains no evidence regarding how the alleged

remark caused complainant to suffer a harm or loss with respect to a term,

condition, or privilege of his employment. Further, the Commission has

repeatedly found that remarks or comments unaccompanied by a concrete

agency action are not a direct and personal deprivation sufficient to

render an individual aggrieved for the purposes of Title VII. See Backo

v. United States Postal Service, EEOC Request No. 05960227 (June 10,

1996); Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Therefore, we find that the alleged event does not

render complainant an �aggrieved� employee. Accordingly, the agency's

dismissal for failure to state a claim was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 17, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.

2 We note that while the formal complaint and the FAD cite disability

as the basis, reprisal is the sole basis indicated in the Initial

Intake Form, Counselor's Report, and complainant's statement on appeal.

The accuracy of the basis in this case, however, does not affect the

analysis of our decision.