Ute Poole, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 28, 2009
0120091050 (E.E.O.C. May. 28, 2009)

0120091050

05-28-2009

Ute Poole, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Ute Poole,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091050

Agency No. 200P06442008103760

DECISION

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

decision dated November 14, 2008, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,

complainant alleged that she was subjected to discrimination on the bases

of national origin (German), disability (unspecified), age (unspecified),

and reprisal for prior protected EEO activity under a statute that was

unspecified in the record when:

1. On January 28, 2008, a management official (RMO1) closed the inpatient

education program under complainant's charge and complainant was

instructed to pack her belongings and move, only to be told to delay her

move and to instead train the nursing staff on how to document patient

education;

2. On February 5, 2008, another management official (RMO2) informed

complainant that she would be moving to the Transfer Coordinator Program

and the following day, complainant was informed that she would not be

moving to the Transfer Coordinator Program but would be assigned to

making phone calls for discharged patients;

3. On February 18, 2008, RMO2 gave complainant two hours to pack her

belongings and move out of her office;

4. On February 19, 2008, complainant received 1 1/2 hours of training

from an instructor complainant considered incompetent;

5. On February 19, 2008, another management official (RMO3) told

complainant to pack and move to another building and denied complainant's

request for assistance in moving.

6. Due to multiple job assignments and managerial changes, complainant had

to withdraw from the University of Phoenix' MSN/FNP program, resulting in

the loss of complainant's NNEI scholarship, failure to qualify for the

April 2008 Certified Diabetic Educator examination, and great financial

and emotional expense.

7. On July 11, 2008, complainant voluntarily applied for disability

retirement.

The agency dismissed claims 1 and 2 for untimely EEO counselor contact

and the remaining claims for failure to state a claim. Specifically, the

agency found that claims 1, 2, and 7 were discrete acts that were subject

to the regulatory time limits and that complainant did not contact an EEO

counselor until more than 45 days after the incidents in claims 1 and 2.

The agency next found that the remaining actions were insufficiently

severe to state a claim of harassment and that claim 7 did not state a

claim of disparate treatment.

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).

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 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 record shows that complainant first contacted an EEO counselor on

July 11, 2008. As such, all discrete acts that occurred more than 45 days

before this date are time-barred, although they may still be considered as

background evidence of a timely hostile work environment claim. See id.

Transfers are considered "discrete acts" and hence we find that claims

1 and 2 are untimely.

As regards the remaining claims, we find that the complaint fails to

state a claim under the EEOC regulations because complainant failed

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

involving her protected classes, that the harassment complained of was

based on her statutorily protected classes, and that the harassment

had the purpose or effect of unreasonably interfering with her 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 complainant shown she

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). Finally, we

find that complainant has not shown that the actions complained of are

"reasonably likely to deter the charging party or others from engaging

in protected activity." EEOC Compliance Manual, Section 8 (Retaliation)

at 8-13, 8-14 (May 20, 1998). 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

May 28, 2009

__________________

Date

2

0120091050

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

4

0120091050