01A04980
11-22-2000
Sidney G. Leslie, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Sidney G. Leslie v. Department of Veterans Affairs
01A04980
November 22, 2000
.
Sidney G. Leslie,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A04980
Agency No. 200P-2394
DECISION
On July 3, 2000, complainant filed a timely appeal with this Commission
from an agency decision pertaining to 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discriminatory
harassment based on reprisal. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, on June 10, 2000, complainant
filed a formal complaint. The agency framed the harassment claim
as follows:
On April 23, 2000, after complainant had already been told that he
was approved, the EEO Program Manager tried to coerce complainant into
withdrawing his EEO complaints by asking him, �Would you be willing to
drop your EEO complaints for the buy out?�
On June 19, 2000, the agency issued a decision dismissing the complaint
for failure to state a claim. The agency determined that complainant
had not demonstrated a personal harm or loss with respect to a term or
condition of his employment. Further, according to the agency, although
complainant did not enter an agreement with the EEO Program Manager,
his buyout occurred on April 22, 2000. The agency also noted that
settlement negotiations are confidential and to permit a new complaint
to be based on such exchanges would defeat their purpose.
On appeal, complainant contends that the EEO Program Manager's statements
caused him �an enormous amount of stress� and were the �direct cause
of the expenses generated by my attorney.� Complainant reiterates his
claim that the Program Manager attempted to place a condition on his
buyout approval. He argues that if his attorney had not intervened,
she would have continued to change the approval of the buyout upon his
willingness to withdraw his EEO complaints.
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).
Here, complainant contends he was harassed when the EEO Program Manager
asked if he would drop his EEO complaints in exchange for the buyout.
Complainant has failed to show how the alleged remark resulted in a
personal harm or loss regarding a term, condition or privilege of
his employment. The record reveals that complainant's retirement
was approved and effective, April 22, 2000. Further, in his formal
complaint, complainant notes that after reading the buyout materials, he
understood that his eligibility is not affected by pending EEO complaints.
We acknowledge complainant's frustration regarding the alleged conduct
of the EEO Program Manager, but find that the alleged incident does not
render him an �aggrieved� employee. In addition, we do not find the
alleged event to be sufficiently severe or pervasive to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was proper and is hereby 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
November 22, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.