01A61670
08-11-2006
Nazarene T. Mondello, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Nazarene T. Mondello,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A61670
Agency No. 200H06902005103
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 13, 2005, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the basis of sex (female) when:
1. in the Fall of 2004 a Staff Physician (RMO1: male) used lewd
language during a meeting with outside vendors;
2. in December 2004 RMO1 stated to complainant that he liked to
dance with women with large breasts;
3. On May 16, 2005, RMO1 showed complainant a video on his computer
that depicted a naked woman;
4. On May 19, 2005 RMO1 asked complainant to schedule and perform a
pulmonary function test for his mother-in-law, who is not a
veteran; and
5. On June 20, July 23, and August 22, 2005, complainant's
supervisor (RMO2: male) did not inform complainant that a
coworker (CW: male) would not be in;
The agency dismissed claims 1 and 2 for untimely EEO Counselor contact,
noting that complainant did not initiate contact with an EEO Counselor
until June 30, 2005. Regarding claim 3, the agency found that the incident
was insufficiently severe to create a hostile work environment. Regarding
claims 4 and 5, the agency found that complainant failed to state a claim.
On appeal, complainant raises no new arguments and the agency requests that
we affirm the FAD.
Analysis and Findings
The Supreme Court has held that a complainant alleging a hostile work
environment will not be time barred if all acts constituting the claim are
part of the same unlawful practice and at least one act falls within the
filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct.
2061 (June 10, 2002). The Court further held, however, that "discrete
discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges." Id. Finally, the Court
held that such untimely discrete acts may be used as background evidence in
support of a timely claim. Id.
The agency found that the incidents raised in claims 1 and 2 were too
remote in time to be viewed as a "part of the same unlawful practice" as
the timely raised incident in claim 3. We disagree. Given that these two
incidents involved sex-based comments by RMO1, we initially find such
incidents to be part of the same practice as the timely incident in claim
3.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S.
57, 67 (1986), that harassment is actionable if it is sufficiently severe
or pervasive to alter the conditions of the complainant's employment. The
Court explained that an "objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive:"
and the complainant subjectively perceives it as such. Harris, supra at 21-
22. Thus, not all claims of harassment are actionable. Where a complaint
does not challenge an agency action or inaction regarding a specific term,
condition or privilege of employment, a claim of harassment is actionable
only if, allegedly, the harassment to which the complainant has been
subjected was sufficiently severe or pervasive to alter the conditions of
the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the complainant cannot prove a set of facts in
support of the claim which would entitle the complainant to relief. The
trier of fact must consider all of the alleged harassing incidents and
remarks, and considering them together in the light most favorable to the
complainant, determine whether they are sufficient to state a claim. Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Following a review of the record we find the agency correctly dismissed the
harassment claim as insufficiently severe or pervasive to state a claim of
harassment, even when the incidents raised in claims 1 and 2 are included.
Regarding claims 4 and 5, we note that the regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall
dismiss a complaint 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, .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).
Following a review of the record the Commission finds that complainant has
not shown she was aggrieved when she was asked to schedule a medical test
on RMO1's mother-in-law and RMO2 failed to inform complainant on three
occasions that CW would not be coming in to work. Accordingly, the
agency's final decision dismissing complainant's complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 11, 2006
__________________
Date