0120110108
03-03-2011
Harold Walker, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Harold Walker,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120110108
Agency No. 200305802010104162
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 17, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Medical Instrument Technician at the Agency's Michael DeBakey VA
Medical Center facility in Houston, Texas.
On August 19, 2010, Complainant filed a formal EEO complaint alleging that
the Agency subjected him to discrimination on the basis of sex (male)
when, on June 7, 14, and 31, 2010, a co-worker created a discriminatory
hostile environment for him by being unprofessional, disruptive and
popping her chewing gum loudly. Complainant also alleged that on July 21,
2010, the same employee was again unprofessional, disruptive, popping
her gum and talking on the telephone loudly.
The Agency dismissed the complaint, pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The instant appeal followed
without comment from Complainant.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall
accept a complaint from an 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. Dep't of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant
cannot establish that s/he is aggrieved, the agency shall dismiss a
complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
The Commission has held that where, as here, a complaint does not
challenge an agency action or inaction regarding a specific term,
condition, or privilege of employment, the claim of harassment may
survive if it alleges conduct that is sufficiently severe or pervasive
to alter the conditions of the complainant's employment. See Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The Commission finds
that Complainant's allegations are insufficient to state a claim of
harassment or hostile work environment.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFORMED.
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 (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
March 3, 2011
__________________
Date
2
0120110108
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110108