James A. Ver Helst, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 21, 1999
01992002 (E.E.O.C. Oct. 21, 1999)

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