0120114307
02-22-2012
Charmaine Christie, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Charmaine Christie,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114307
Agency No. 200H-0561-2011102690
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 29, 2011, dismissing her complaint of unlawful
employment discrimination in violation of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, at Section 501 of 29 U.S.C.§ 791
et seq. The Commission accepts the appeal. Upon review, the Commission
finds that Complainant's complaint was properly dismissed for failure
to state a claim and untimely EEO counselor contact. We AFFIRM the
Agency’s decision.
BACKGROUND
During the period at issue, Complainant worked as a Supervisor at the
Agency’s VA New Jersey Healthcare System facility in Lyons, New Jersey.
On June 20, 2011, Complainant filed a formal complaint alleging that
her immediate supervisor harassed her because of disability (stress)
on March 30, 2011. Two days later, Complainant sought to amend her
complaint to add two additional incidents (2010 performance appraisal
and warning letter) and to include reprisal as a basis. As amended,
the complaint alleged that the Agency subjected her to discrimination on
the bases of disability (mental stress) and reprisal for prior protected
unspecified EEO activity when:
1. In October of 2010, Complainant’s supervisor issued Complainant an
annual performance appraisal that did not properly assess her performance;
2. On March 30, 2011, her Supervisor verbally confronted and “talked
down” to Complainant about staff complaints;
3. On June 16, 2011, the Chief of the Medical Administration Service
issued Complainant a warning letter regarding Complainant’s leave usage.
As further background, the record shows that Complainant contacted
an EEO Counselor on April 6, 2011, with regard to March 30, 2011
incident. Complainant had previous EEO activity. She contacted an
EEO counselor in January of 2010, claiming that her supervisor (S1) was
discriminating against her, but she did not file a complaint. In October
of 2010, S1 issued Complainant a performance rating that Complainant
believed did not properly assess her job performance. On March 30,
2011, S1 confronted Complainant about complaints that he had received
against her. She viewed his tone as hostile and condescending. This
is the issue that was raised with the EEO counselor and is before
us on appeal. Thereafter, on June 16, 2011, the Chief of the Medical
Administration Service (S2) (Complainant’s second line supervisor)
issued Complainant a letter of warning regarding her leave usage.
The Agency dismissed the entire complaint. In its decision dismissing
the complaint, the Agency noted that there was only one issue that
was timely brought to the attention of an EEO counselor. The Agency
dismissed the allegation regarding the performance rating for untimely
counselor contact. According to the Agency, Complainant’s April 6,
2011 contact was approximately seven months after the performance rating
was issued, well beyond the 45-day time limitation.
The Agency concluded that the two additional claims were not like
or related to the March 30, 2011 claim. The Agency also dismissed
the complaint for failure to state because Complainant did not allege
that she suffered a harm or loss when S1 confronted her about staffing
complaints on March 30, 2011 or when she was issued the warning letter.
The Agency determined that Complainant’s claim of harassment failed
because the alleged actions were not severe or pervasive. The Agency
reasoned the events occurred over a nine month period, were isolated
in nature and not objectively hostile. The Agency reasoned that the
claimed actions would not prevent or deter a reasonable person from
participating in the EEO complaint process.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred when it dismissed
her complaint, because the claims are reasonably related to each
other and grow out of the same pattern of harassment. At a minimum,
Complainant argues that the letter of warning was timely and should have
been accepted.
In response, the Agency requests that the Commission affirm the
dismissal. The Agency maintains that the claims were not like or related
because they involve different time frames and different supervisors
than the actions were not raised with an EEO counselor, and her claim
regarding the rating was untimely.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that the 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 addition, EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the
Equal Employment Opportunity Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the forty-five (45) day limitation period is triggered. See Howard
v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999).
Thus, the time limitation is not triggered until Complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
EEOC Regulations provide that the Agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Consistent with the Commission’s policy and practice of determining
whether a complainant’s harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. Also, the trier
of fact must consider all of the circumstances, including the following:
the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
On appeal, Complainant argues that the claims should be considered as one
claim of harassment and that the claims, taken together, are sufficient
to state a claim of hostile environment harassment and reprisal.
Based on our review of the record, we find that the original, counseled,
claim involved a single incident of harassment on March 30, 2011, when
Complainant’s supervisor talked down to her. There is no allegation
of an adverse disciplinary action in this case. We recognize that
Complainant attempted to amend her complaint to bring in additional
incidents. We find, however, that her allegation regarding her appraisal
was not timely raised and is not related to the counseled issue.
The letter of counseling regarding her leave was timely, but the claim
does not involve any disciplinary or negative personnel action.
Moreover, the Commission finds that the entire complaint fails to state a
claim under the EEOC regulations because Complainant failed to show that
she suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Dep’t of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). Even taken together,
the three isolated events were not sufficiently severe or pervasive to
establish a hostile environment claim.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing
Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 (S0610)
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 (Z0610)
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
February 22, 2012
__________________
Date
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0120114307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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