0120072239
08-13-2007
Mara S. Katz, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Mara S. Katz,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072239
Agency No. 200J05532007100313
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 6, 2007, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(1) for failure to state a claim.
In a complaint dated December 27, 2006, complainant alleged that she
was subjected to discrimination on the basis of disability (unspecified
mental disorder) when:
1. on or about October 61, 2006, complainant was placed on a Performance
Improvement Plan (PIP) despite providing her supervisor with medical
certification that she had been on medication that allegedly impacted
on her work performance; and
2. complainant's supervisor subjected her to a discriminatory hostile
work environment when she allegedly yelled at her, pointed her finger
at her, and told complainant not to call herself an attorney.
Claim (1) concerns the agency's decision to place complainant on a
performance improvement plan (PIP) in October-November 2006. Beyond
placement on the PIP, there is no indication in the record that any
adverse action was taken against complainant as a result of the PIP.
29 C.F.R. � 1614.107(a)(5) provides that an agency may dismiss a claim
involving a proposal to take a personnel action or other preliminary
step to taking a personnel action. The Commission has held that a PIP
is merely a preliminary step to taking a personnel action and, in most
instances, by itself does not constitute an adverse action sufficient
to render an employee aggrieved. Lopez v. Department of Agriculture,
EEOC Appeal No. 01A04897; Jackson v. Central Intelligence Agency, EEOC
Request No. 05931177 (June 23, 1994). Therefore, the agency's dismissal
of claim (1) is affirmed.
As regards claim (2), the Commission concludes that it also fails to
state a claim under the EEOC regulations because even assuming the
alleged harassing incidents were true and included the PIP, complainant
failed to alleged that she was subjected to unwelcome conduct based
on her disability that had the purpose or effect of unreasonably
interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment. See McCleod v. Social
Security Administration, EEOC Appeal No. 01963810 (August 5, 1999)
(citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Where,
as here, a complaint does not challenge an agency action or inaction
regarding a specific term, condition, or privilege of employment, the
claim may survive as evidence of harassment if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Whether the
harassment is sufficiently severe to trigger a violation of EEO statutes
must be determined by looking at all of the circumstances, including
the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating, or a mere offensive utterance, and
whether it unreasonably interferes with an employee's work performance.
See id.; Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC
Notice No. 915.002 (March 8, 1994). Consistent with the Commission's
policy and practice of determining whether a complainant's harassment
claims are sufficient to state a hostile or abusive work environment
claim, the Commission has repeatedly found that claims of a few isolated
incidents of alleged harassment usually are not sufficient to state
a harassment claim. See Phillips v. Department of Veterans Affairs,
EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human
Services, EEOC Request No. 05940481 (February 16, 1995). In this case,
Complainant's harassment claim does not allege facts sufficient to find
that she suffered a 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, the agency's final decision dismissing claim (2)
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 13, 2007
__________________
Date
1 In the FAD, the date for this issue is cited as November 11, 2006.
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0120072239
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072239