0120091886
07-02-2009
Jose Bejar, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Jose Bejar,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091886
Agency No. 2003-0677-2009100466
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 12, 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 for failure to state a claim.
During the relevant period, complainant was a physician at a Topeka,
Kansas hospital of the agency. In a formal EEO complaint dated December
22, 2008, complainant alleged that the agency subjected him to hostile
work environment harassment on the bases of national origin (Hispanic
- Ecuadorian) and reprisal for prior protected EEO activity when his
former supervisor and a branch chief attempted to portray complainant as
a person with a mental disorder to have him dismissed from employment.
Specifically, complainant alleged that (1) from October 9, 2008 through
November 21, 2008, there was a delay in complainant receiving access to
a medical record needed to complete a review, (2) on October 17, 2008,
complainant was asked to move his neurology clinic exams from exam
room #28 to room #30, (3) on November 4, 2008, complainant received a
traffic ticket from agency police for failure to stop at a stop sign,
(4) on November 5, 2008, complainant received an e-mail clarifying the
request procedures for urgent ultrasound exams, and (5) on December 2,
2008, complainant received his notice to renew his clinical privileges
five and a half months before they were due. Further, complainant stated
that, between October 30, 2008 and January 29, 2009, his colleagues
intensified the hostile work environment by staring at complainant
outside of his office, questioning his competency as a neurologist,
confronting him in a threatening manner, staring at him during meetings,
and acting rude and unprofessional to him.
In its February 12, 2009 final decision, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. Specifically, the agency found that the actions
alleged were not severe or pervasive so did not rise to the level of a
hostile work environment. The instant appeal from complainant followed.
On appeal, complainant reiterated previous contentions.
The Commission finds that complainant's complaint of harassment fails
to state a claim under EEOC regulations because, even if assumed true,
the actions as alleged are not sufficiently severe or pervasive to alter
the conditions of complainant's employment. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). Further, we find that complainant
failed to show 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. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Accordingly, we AFFIRM the final agency decision
dismissing complainant's complaint.
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
July 2, 2009
__________________
Date
2
0120091886
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091886