0120112522
11-28-2012
Carolyn Hairston, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Carolyn Hairston,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112522
Agency No. 200406582011101093
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 24, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Manager, RN3, at the Agency's Salem VA Medical Center in Salem, Virginia.
On January 21, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to ongoing hostile workplace discrimination on the bases of race (African-American) and age (62).
According to the EEO Counselor's Report, dated January 20, 2011, Complainant and other African Americans are criticized and demeaned on a "daily basis." According to Complainant, management often works together with other white employee to undermine her authority and is ultimately trying to get rid of her based on her age and race. The Chief of Nursing (Complainant's immediate supervisor) asserted that the above issues have been ongoing, and the Agency is requiring employees to taking training sessions which foster civility.
As further examples of the discriminatory harassment, Complainant provided the following: 1) On September 8/9, 2009, the Director of Post Traumatic Stress Disorder Programs (Director) attempted to present a statement from an anonymous employee, concerning racial statements allegedly made by Complainant; 2) On January 21, 2010, Complainant was required to attend a meeting with management and union representatives to discuss her knowledge of an incident wherein the unit refrigerator was cleaned by a patient with an infected finger, and to discuss patient involvement with nursing staff issues; 3) On July 19, 2010, the Licensed Practical Nurse (LPN) accused Complainant of yelling at her; 4) On July 21, 2010, the Director communicated with her in a condescending manner, informing her that staff did not want to work with her, and would not support her; 5) On July 23, 2010, she overheard that the LPN made a negative reference regarding her when she told another LPN, "whoever unlocked the cart should be terminated," which referred to Complainant; 6) On August 19, 2010, she was called into a meeting with the Director, LPN and the Associate Chief of Mental Health, wherein she was accused of telling patients to clean out the refrigerator; 7) On September 4, 2010, the Director wanted to reprimand her regarding an allegation made by another employee; and 8) On November 17, 2010, the Director accused her of discussing nursing staff issues with a former patient via telephone, in violation of boundary issues between staff and patients.
The Agency dismissed this matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency alternatively dismissed claims 2 and 8 pursuant to 29 C.F.R. � 1614.107(a)(4) for having raised them in a negotiated grievance procedure that permits claims of discrimination. Specifically, Complainant had filed a grievance concerning provisions relating to the boundary between employees and patients, as it involved incidents that occurred at her work location (PTSD ward).
The instant appeal followed.
ANALYSIS AND FINDINGS
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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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. 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, such as the complaint at issue here, 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.
Applying these legal principles, we find that the Agency improperly dismissed Complainant's formal complaint. Complainant has alleged facts that, if considered together, proven to be true and viewed in a light most favorable to her, are sufficiently severe or pervasive to state a viable claim of discriminatory harassment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). With regard to the two incidents which the Agency asserts were part of a grievance, we find that they should still be considered in the remanded complaint as part of the evidence supporting Complainant's hostile work environment claim.
Accordingly, the Agency's final decision is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (ongoing hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
November 28, 2012
__________________
Date
2
0120112522
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112522