0120111806
02-10-2012
Patrick McComas, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Patrick McComas,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111806
Agency No. 200H-0581-2011100688
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
Final Decision, dated February 1, 2011, dismissing his complaint of
unlawful employment discrimination. 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, and the Commission AFFIRMS
the Agency’s Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part-time Housekeeping Aid at the Agency’s Huntington Veterans
Administration Medical Center facility in Huntington, West Virginia.
Complainant filed a formal complaint, dated December 24, 2010, alleging
that the Agency subjected him to a hostile work environment when:
1. On April 24, 2010, Complainant's Crew Leader (S1) asked
Complainant to give him the phone number of Complainant’s former wife
(W1).
2. On September 4, 2010, S1 asked Complainant for W1’s telephone
number again.
3. On November 14, 2010, after observing S1 and W1 together,
Complainant contacted the Agency police, who asked Complainant to identify
S1 on video tape where Complainant saw S1 and W1 enter a closet.
In its Decision, the Agency found that Complainant failed to specify
a basis for his claim of harassment and that the events described
in Complainant’s complaint, even if they occurred as alleged, were
not so severe or pervasive that they rose to the level of harassment.
Agency’s Notice of Final Agency Decision, February 1, 2011 at 1, 2;
Record on Appeal (ROA) at 12.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Sav. 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 a 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.
In the instant case, the Commission concurs that the conduct described by
Complainant was not so severe or pervasive that it altered the terms and
conditions of Complainant’s employment. We find that the complaint
fails to state a claim under the EEOC regulations because Complainant
failed to show that he 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).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) 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 (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 10, 2012
__________________
Date
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0120111806
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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