0120111685
02-09-2012
Cynthia Edwards, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia Edwards,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111685
Agency No. 200I-0730-2010104113
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated January 6, 2011, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Utilization Review Nurse at the Mid-Atlantic Consolidated Patients
Account Center in Asheville, North Carolina. On November 13, 2010,
Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination and a hostile work environment on the bases of race
(African-American), sex (female), and disability when:
1. On May 26, 2010, the Regional Revenue Manager issued Complainant a
proposed suspension that was sustained on July 23, 2010;
2. On June 7, 2010, the Regional Revenue Manager implied that Complainant
would have to provide medical documentation indicating that she was
well enough to travel to a work assignment and, on July 15, 2010, she
requested that Complainant submit medical documentation and questioned
her about certifying her own sick leave;
3. On June 11, 2010, Complainant’s supervisor yelled at her during a
discussion about medical documentation for using leave; and
4. On July 23, 2010, Complainant’s supervisor threatened to embarrass
her in front of her co-workers.
On January 6, 2011, the Agency dismissed the complaint. As to claim
(1), the Agency determined that the Union had filed a grievance on
Complainant’s behalf regarding the proposed suspension. As the
Agency’s negotiated grievance procedure permitted allegations
of discrimination, the Agency dismissed this claim pursuant to
29 C.F.R. 1614.107(a)(4). As to the remaining claims, the Agency
determined that the alleged incidents were isolated incidents and were
not sufficiently severe or pervasive to rise to the level of actionable
harassment. As a result, the Agency dismissed Complainant’s hostile
work environment claim pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that a review of the facts and evidence in
this case would show that her supervisor created a sexually hostile work
environment. Complainant contends that she has multiple witnesses who
can support her claims regarding the hostile attitude of her supervisor.
Further, Complainant argues that the facts and evidence will show that
the harassment so altered her working conditions as to make it more
difficult for her to do her job and discouraged her from remaining on
the job. Accordingly, Complainant requests that the Commission reverse
the Agency’s dismissal.
ANALYSIS AND FINDINGS
Regarding claim (1), EEOC Regulation 29 C.F.R. § 1614.301(a) states
that when a person is employed by an Agency subject to U.S.C. § 7121(d)
and is covered by a collective bargaining agreement that permits claims
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part
1614 or the negotiated grievance procedure, but not both. An aggrieved
employee who files a grievance with an Agency whose negotiated agreement
permits the acceptance of grievance which alleged discrimination may
not thereafter file a complaint on the same matter under part 1614,
irrespective of whether the Agency has informed the individual of the need
to elect or whether the grievance has raised an issue of discrimination.
The record reveals that Complainant, through the Union, filed a grievance
regarding the same claim alleged in claim (1) on August 20, 2010.
As the grievance was filed before the instant complaint, the Commission
finds that Complainant selected the grievance process as the vehicle for
pursuing her claim. Therefore, the Commission finds that the Agency
properly dismissed claim (1) on the grounds that Complainant already
raised these matters in a negotiated grievance procedure that permitted
allegations of discrimination.
Regarding claims (2) – (4), the regulation set forth at 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 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 (Apr. 21, 1994). If Complainant cannot
establish that she is aggrieved, the Agency shall dismiss a complaint
for failure to state a claim. 29 C.F.R. § 1614.107(a)(1).
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. See Phillips
v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (Feb. 16,
1995). Moreover, the Commission has repeatedly found that remarks or
comments unaccompanied by a concrete action by an Agency usually are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv.,
EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv.,
EEOC Request No.05940695 (Feb. 9, 1995).
The Commission concludes that, accepting the issues alleged in claims (2)
– (4) as true, the allegedly harassing conduct to which Complainant
was subjected was not sufficiently severe or pervasive to alter the
terms and conditions of Complainant’s employment. See Cobb v. Dep’t
of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Thus, the
Commission finds that the 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 (Apr. 21, 1994). Accordingly, the Agency's final
decision dismissing Complainant’s complaint is AFFIRMED.
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 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), at 9-18 (Nov. 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 9, 2012
Date
2
0120111685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120111685