01a51147
03-15-2005
Rhonda E. Garrett, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Rhonda E. Garrett v. Department of Veterans Affairs
01A51147
March 15, 2005
.
Rhonda E. Garrett,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51147
Agency No. 200H-0561-2004103915
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated September 24, 2004, complainant
alleged that she was subjected to discrimination and harassment on the
basis of race (African-American) and in reprisal for prior EEO activity,
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when:
(1) On January 2, 2003, the Associate Director (A1), Patient Care
Services sent complainant an e-mail informing her that there was a
vacant position in the VA Pittsburgh Healthcare System that she might
be interested in applying for.
(2) On January 23, 2002, A1 sent complainant an e-mail informing her
that she should not use e-mail as a means of communicating staffing
issues although others are allowed to do so.
(3) On January 30, 2003, when complainant received her proficiency
rating for the period of August 2001 to August 2002, it was annotated
that she refused to sign the proficiency.
The FAD dismissed the complaint for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). On appeal, complainant contends that
her complaint states a claim of harassment. The agency disagrees,
and requests that we affirm the FAD.
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).
In the instant case, complainant contends that she was subjected to
discriminatory harassment because of two e-mails she received and
because her proficiency rating was annotated that she refused to sign
the proficiency. The Commission has repeatedly found that remarks or
comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. See Backo v. United States Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United
States Postal Service, EEOC Request No. 05940695 (February 9, 1995).
Here, complainant has failed to show that the alleged incidents, taken
together, were sufficiently severe or pervasive to state an actionable
claim of discriminatory harassment. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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:
March 15, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations