0120170829
04-28-2017
Cassandra S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cassandra S.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120170829
Agency No. 20DR00202016103468
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's December 8, 2016 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was the Director of the Agency's VBA Field Operations Regional Office in Denver, Colorado. In this position, she was a member of the senior executive service (SES).
On November 16, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when:
1. The Agency's Office of the Inspector General ("OIG") "targeted" her, assuming she was guilty of allegations from disgruntled employees prior to conducting any investigation.
2. On April 9, 2015, an OIG investigator ("the OIG Investigator") notified her that she was under investigation for misuse of Agency time, and made accusations about her use of telework and leave, while her male counterparts engaging in the same practices and policies were not similarly contacted.
3. For 502 days, the OIG Investigator bullied, harassed, and demeaned her while interviewing her.
4. On August 23, 2016, OIG issued a report ("the OIG Report"), stating that she misused Agency time based on what was later found to be "insufficient evidence," humiliating her, and tarnishing her reputation and career.
5. Since 2015, the OIG investigated and issued public reports of misconduct for at least 3 female directors, including Complainant.
6. Over the past 18 years (Complainant's tenure with the Agency), no male director has been the subject of a published report even though roughly half of the field directors are male and many male directors have been accused of misconduct.
7. The OIG Investigator demonstrated gender bias by among other things, refusing to listen to her explanations and "screaming" at her over the phone, rolling his eyes when discussing female witnesses, failing to interview multiple witnesses with exculpatory evidence; repeatedly asking her to resubmit evidence; failing to contact other regional offices about the credit hour tracking system; asking inappropriate questions about her and her son's disabilities, and without justification, assuming she was teleworking in order to care for her son.
8. The OIG Report demonstrated gender bias by, among other things, concluding that she was lying about caring for her son while teleworking despite providing evidence that she made childcare arrangements, failing to consider exculpatory evidence, and hours worked outside her scheduled workday.
9. The OIG Investigation and OIG Report did not meet the "OIG Quality Standards for Investigations" regarding privacy, timeliness, evidence, professionalism, and objectivity.
Complainant's complaint also alleged that the Agency subjected her to discrimination on the basis of disability (physical and mental) and association with her child with a disability) when:
10. The OIG Investigator inappropriately investigated her telework agreement and use of paid leave in relation to her and her son's disabilities.
11. The OIG Investigator violated her statutorily protected privacy rights and the "OIG Quality Standards for Investigations" by asking probing questions about the hospitalization of her son and private questions about her health.
The record also shows that OIG Report, which was issued publically, concluded that Complainant had misused government time on a number of occasions. In October 2016, Complainant contacted Agency's Office of Accountability Review ("OAR"), which instructed its Administrative Investigative Board ("AIB") to review the OIG Investigation. On December 21, 2016 (after the dismissal decision on the instant complaint), AIB issued a memorandum ("the OAR Memorandum") reviewing the methodology and findings of the OIG Report, and explaining its own investigation. Accordingly to the OAR Memorandum, OIG failed to consider available exculpatory evidence, and several of the alleged instances of "misuse" were disproven or it was otherwise found that there was insufficient evidence to support much of the OIG Report findings.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), reasoning that it was a collateral attack on another proceeding, and alternately, that it failed to state a viable claim of harassment.
The instant appeal followed. On appeal, Complainant alleges that the Agency "woefully mischaracterized" her complaint. Rather than accept the nine claims detailed in her formal complaint, she asserts the Agency only addressed one claim - the original allegation raised in EEO counseling about the OIG Investigator yelling at Complainant over the phone. According to Complainant, the Agency also characterized the complaint as a harassment/hostile work environment complaint instead of disparate treatment complaint, which Complainant asserts was her argument.
Complainant also raises new issues, including allegations of retaliation as a result of her EEO activity related to the instant complaint, and asks us to grant her requested relief based on the findings in the OAR Memorandum.
ANALYSIS AND FINDINGS
Failure to State a Harassment/Hostile Work Environment Claim
As an initial matter, we find the Agency erred to the extent that it limited its dismissal decision to Complainant's initial claim that the OIG Investigator "screamed" at her over the phone in April 2016, which was timely raised during pre-complaint counseling. The nine allegations presented in Complainant's November 2016 formal complaint are all "like and related" to Complainant's initial allegation because the alleged discriminatory actions all arise from the OIG Investigation and Report. A later claim is "like or related" to the original complaint if the later claim adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (Jun. 27, 2014), referencing Scher v. United States Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). So long as they are "like and related," there no requirement that Complainant seek or receive counseling on the new allegations. See Braxton v. United States Postal Serv., EEOC Appeal No. 0120102410 (Oct. 29, 2010). Therefore, we have considered all of the allegations in Complainant's formal complaint, which we organized into the 11 allegations provided in the "Background" section above.
On appeal, Complainant also contends that her complaint was improperly characterized as discriminatory harassment/hostile work environment instead of disparate treatment as alleged. However, Complainant does not name a specific term, condition or privilege of employment from which she experienced a harm or loss (Complainant's new claims raised on appeal are addressed below). Instead, Complainant describes harm consistent with a harassment/hostile work environment complaint - namely, that she was humiliated, and her reputation and career were tarnished. We also agree with the Agency's interpretation that the ongoing nature and types of allegations Complainant raises (particularly that she was "bullied, harassed, and demeaned" because of her sex) indicate harassment/hostile work environment, as they allege conduct sufficiently severe or pervasive to alter the conditions of Complainant's employment, not a specific employment action.
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. Here, viewing the allegations in Complainant's formal complaint together, we conclude that she has alleged a viable harassment/hostile work environment claim and find the Agency erred in basing its dismissal for failure to state a claim on the single incident that occurred in April 2016, when the OIG Investigator allegedly screamed at her.
Dismissal as a Collateral Attack
The Commission has generally held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The Agency based its dismissal decision, in part, on its conclusion that the instant complaint was a collateral attack on the OIG investigative process.
Here, however, Complainant is doing more than simply challenging the results of the OIG investigation. Rather, she alleges that the Agency's OIG "engages in a pattern and practice of gender discrimination against female directors by targeting them and engaging in excess and unjustified scrutiny. [The Agency's OIG] ignores exculpatory evidence as it relates to female directors... and publishes reports that exaggerate and misconstrue negative evidence against women." Similarly, in allegations 5 and 6, she alleges that in a less than two-year period, the OIG investigated and published negative reports on three female directors, but in 18 years OIG had never published a report on a male director despite numerous male directors being accused of misconduct. We find that these explicit allegations that the OIG investigation and report were expressly motivated by discriminatory factors are sufficient to reverse the dismissal in this case and require further investigation and processing of Complainant's allegations. See, e.g., Bradley, Jr. v. Department of Homeland Security, EEOC Appeal No. 0120112143 (January 19, 2012) (the initiation and processing of internal investigations for retaliatory motives state a viable claim).
New Claims
On appeal, Complainant alleges that the Agency retaliated against her for engaging in EEO activity, including raising the instant complaint, when her 2016 Performance Evaluation rating was lowered from "Outstanding" to "Excellent" and she was passed over for a transfer in favor of a lesser qualified male employee. Because these new claims were not included in Complainant's formal complaint, they will not be adjudicated in this decision. If Complainant wishes to pursue these new harassment and reprisal claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Service, EEOC Appeal No. 0120031342 (April 24, 2003).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E1016)
The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 28, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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