Robert L. Perez, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120090363 (E.E.O.C. Jan. 30, 2009)

0120090363

01-30-2009

Robert L. Perez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Robert L. Perez,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120090363

Agency No. 200305012008102442

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 29, 2008, 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. and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. 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 his complaint, complainant alleged that he was subjected to a hostile

work environment on the bases of religion (Catholic) and age (40) when:

in November 2007, a co-worker (C1) looked him in the eye and gave him a

"Nazi" salute; in March 2008, another co-worker (C2) yelled at him to

get the mail and yelled with regard to whether he had worked that night;

and in April 2008, C2 insulted him by calling him a "God damn fucking

freak."1

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall

accept a complaint from an 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. Dep't of the

Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant

cannot establish that s/he is aggrieved, the agency shall dismiss a

complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not

challenge an agency action or inaction regarding a specific term,

condition, or privilege of employment, the claim of harassment may survive

if it alleges conduct that, if proven true, would be 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). The

Commission finds that complainant's allegations concern isolated

incidents of mean-spirited remarks by coworkers, but are not, without

more, sufficiently pervasive or severe to state a claim of discriminatory

hostile work environment that requires further investigation.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

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

January 30, 2009

__________________

Date

1 Complainant also alleged that some time earlier this same coworker

called another coworker a "God damn fucking bisexual."

??

??

??

??

2

0120090363

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120090363