Terrill Dunning, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 3, 2009
0120092660 (E.E.O.C. Dec. 3, 2009)

0120092660

12-03-2009

Terrill Dunning, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Terrill Dunning,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120092660

Agency No. 200406592009101225

DECISION

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

decision dated June 2, 2009, 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. In his

complaint, complainant alleged that he was subjected to a hostile work

environment on the basis of reprisal for prior protected EEO activity

under a statute that remains unspecified in the record when:

1. On February 6, 2009, complainant was forced to appear before an

administrative board of investigation without union representation;

2. On January 6, 2009, complainant was denied access to a representative

of his choice;

3. On January 2, 2009, complainant was notified that an administrative

board of investigation would convene regarding a security violation;

4. On December 1, 2008, complainant was given a letter instructing him to

provide the unaltered documents that he picked up from the fax machine,

which contained another employee's official privacy information;

5. On August 29, 2008, a management official (RMO1) made threatening

and abusive comments to complainant.

6. On May 2, 2008, complainant learned that a waiver of obligation was

approved for a recipient of the VA Nursing Education for Employees Program

(EISP);

7. On June 8, 2007, complainant received a letter from the Director of

Health Care Retention Officer (RMO2) denying his request for a waiver

in the amount of $4,280.00;

8. On May 21, 2007, complainant met with the EEO Program Manager (RMO3),

and informed him that RMO3 was interfering in his EEO investigation;

9. On April 17, 2007, complainant learned he was the only student in the

EISP who was not allowed to complete his nursing studies or graduate on

time, and was accused of a breach of contract, which was subjected to

wage garnishment;

10. On April 11, 2007, complainant received an e-mail from the Associate

Chief of Staff (RMO4) that the Office of Health Care Recruitment and

Retention in New Orleans needed a report of academic standing from

Excelsior College in order to complete their review of complainant's

request;

11. On April 2, 2007, complainant contacted the VA's Public Relations

Officer (RMO5) regarding his hardship waiver, but to date, she has failed

to respond to his request;

12. On January 13, 2007, the Department of Treasury threatened to garnish

all of complainant's wages despite his approved waiver;

13. On January 9, 2007, complainant requested a meeting with the Associate

Director (RMO6) regarding complainant's hardship waiver and to date,

RMO6 has not responded to his request;

14. On November 17, 2006, complainant discovered the agency had garnished

his pay $500.00 to $600.00 each pay period leaving him a net salary of

$128.11;

15. During September and October 2006, complainant's wages were garnished

by the agency for over $600.00;

16. On September 15, 2006, the agency billed complainant for the third

time in the amount of $4,297.94, and complainant did not receive an

appeal as requested;

17. During July 2006, the agency billed complainant a second time after

he applied for a hardship waiver;

18. On July 11, 2006, the agency billed complainant $4,280.00;

19. On June 5, 2006, complainant was ordered to return to work; and

20. On June 2, 2006, complainant was accused of a breach of contract

and abandoning the EISP program. He was the only VANEEP [sic] student

ordered to return to work.

The agency dismissed claims 1, 2, 3, and 4 for failure to state a

claim, finding that the alleged actions were insufficiently severe

and/or pervasive to state a claim of retaliatory harassment. The agency

dismissed the remaining claims on the grounds that they were identical to

claims previously raised in earlier complaints and the agency has included

copies of the earlier complaints in the record. However, a review

of these complaints indicates that the agency erroneously transposed

claims 4 and 5. The record reveals that claim 5 was not raised in an

earlier complaint, while claim 4 was previously raised. In addition the

agency has not shown that claims 7, 8, and 19 were previously raised.

We further find, however, that as regards claims 7 and 19, complainant's

EEO counselor contact was untimely. The record shows that these incidents

occurred on June 8, 2007, and June 5, 2006 respectively, but complainant

did not contact an EEO counselor until January 8, 2009.1

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. Assuming,

for the sake of argument, that claims 8 and 19 form part of the "same

unlawful practice," we find that they constitute discrete acts and hence

are untimely raised.

As regards claims 1, 2, 3, 5, and 8, we find that complainant failed

to state a claim of retaliatory harassment. In his Formal complaint,

complainant describes what happened between himself and RMO1 when

RMO1 allegedly made threatening and abusive comments. In his Formal

complaint, complainant alleges that RMO1 accused complainant of a privacy

violation when complainant came across another employee's private and

confidential information on a fax machine. Complainant said that RMO1

thanked complainant for providing the document and then told complainant

that he felt the document had been altered and requested that complainant

provide an unaltered copy. The Commission finds that the complaint fails

to state a claim under the EEOC regulations because complainant failed

to show that he was subjected to unwelcome verbal or physical conduct

involving his protected class, that the harassment complained of was

based on his statutorily protected class, and that the harassment had the

purpose or effect of unreasonably interfering with his 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). Nor has he shown he suffered 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). Furthermore, the agency has shown that claims 4, 6,

9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 20 were previously raised.

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

December 3, 2009

__________________

Date

1 The FAD gives the date as January 6, 2008. However a review of the

record shows that the date was January 8, 2009.

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0120092660

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120092660