0120092530
09-29-2009
Joe Prunty, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Joe Prunty,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092530
Agency No. 200406582009101470
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated May 4, 2009, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
In a formal EEO complaint dated March 8, 2009, complainant alleged
that the agency discriminated against him on the bases of race (Black)
and reprisal for prior protected EEO activity when an agency director
(S1) committed libel and defamation of character when she responded
to a congressional inquiry prompted by complainant by stating that
complainant was counseled for excessive sick leave use. The agency
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. On appeal, complainant stated that S1's
congressional response harmed him because it is a lie that has negatively
affected other opportunities for him and that the agency subjected him
to hostile work environment harassment. Complainant stated that he
would like to file a civil action if we do not find in his favor.
The Commission agrees with the agency. We find that the complaint fails
to state a claim under EEOC regulations because complainant failed to
allege that he suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. See Diaz v. Dep't
of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Further,
to the extent that complainant is alleging that the remark constitutes
harassment, the Commission notes that unless the conduct is severe,
a single incident or group of isolated incidents will not be regarded
as a claim of discriminatory harassment. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993). Lastly, the Commission has a policy of
considering reprisal claims with a broad view of coverage. See Carroll
v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under
Commission policy, claimed retaliatory actions which can be challenged are
not restricted to those that affect a term or condition of employment.
Rather, a complainant is protected from any discrimination that is
reasonably likely to deter protected activity. See EEOC Compliance
Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8- 15;
see also Carroll, supra. We do not find that the action-at-issue fits
that criteria.
Based on the above, we AFFIRM the final agency decision dismissing
complainant's complaint. As to complainant's comment regarding a civil
action, we refer him to his civil action rights indicated below.
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
September 29, 2009
__________________
Date
2
0120092530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092530