01992002
10-21-1999
James A. Ver Helst, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James A. Ver Helst v. Department of Veterans Affairs
01992002
October 21, 1999
James A. Ver Helst, )
Appellant, )
)
v. ) Appeal No. 01992002
) Agency No. 98-1429
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On January 11, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated December 16, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the bases of sex
(male), age (DOB 7/23/32), physical disability (60% Service Connected
for lower extremities, right thumb; hearing loss), and in reprisal for
prior EEO activity when:
On May 10, 1998, appellant was assigned as a Staff Dentist, which
requires performing dentistry eight hours a day;
On May 10, 1998, appellant was effectively demoted when reassigned to
the Staff Dentist position;
On May 10, 1998, the agency failed to promote appellant to an available
Chief, Dental Service position;
On May 10, 1998, appellant was reassigned from the position of Chief,
Dental Service to that of Staff Dentist;
Appellant was given a Performance Report for the period between 8/21/96
to 8/21/97, which was unacceptable, and was not given his Performance
Report for the period 8/21/97 to 8/21/98;
In the Fall of 1995, appellant was subjected to sexual harassment when
an e-mail was posted which indicated to appellant that he should "bring
[his] brains to this discussion, as well as [his] testosterone;"
On May 10, 1998, when reassigned to the position of Staff Dentist,
appellant was not provided sufficient office equipment nor speaker
telephone; and
On May 10, 1998, appellant was notified that he was not selected for
the position of Chief, Dental Service, BHHCS.
The agency consolidated and accepted allegations (2), (3), (4), and (8)
for investigation, accepted allegations (1), (5), and (7) as individual
allegations for investigation, and dismissed allegation (6) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Specifically, the agency determined that appellant failed to show that he
suffered harm to the terms, conditions, or privileges of his employment
as a result of the incident identified in allegation (6), and, therefore,
failed to state a claim under the EEOC regulations.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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).
Upon review of the record, the Commission concurs with the agency's
determination that appellant failed to state a claim. Initially, we
note that 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. U.S. Postal Service, EEOC Request No. 05960227
(June 10, 1996); Henry v. U.S. Postal Service, EEOC Request No. 05940695
(February 9, 1995).
Although appellant alleged that allegation (6) constituted sexual
harassment, 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).
In the instant complaint, we find that allegation (6) is too isolated
and insufficiently severe to state a claim of sexual harassment.
Accordingly, the agency's final decision is AFFIRMED for the reasons
set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 21, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations