Joe Prunty, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 29, 2009
0120092530 (E.E.O.C. Sep. 29, 2009)

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