0120112759
10-17-2011
Debra R. Davis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Debra R. Davis,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01-2011-2759
Agency No. 200H-0757-2011100937
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated April 25, 2011, dismissing a formal 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
During the period at issue, Complainant worked as a Program Analyst,
GS-11, at the Agency’s Veterans Affairs Outpatient Clinic (VAOPC)
in Columbus, Ohio.
On January 13, 2012, Complainant filed a formal complaint. Therein,
Complainant claimed that she was the victim of unlawful employment
discrimination alleging that the Agency subjected her to discrimination
on the basis of race (black) when:
a. she had not yet received a response to her request that the Data
Validation and VERA Committee receive a special contribution award on
December 1, 2010.
By letter dated March 10, 2011, Complainant requested that the instant
formal complaint be amended to include the following claims that she was
subjected to harassment and a hostile work environment on the bases of
race and in reprisal for prior EEO activity when:
b.1. she was told by her supervisor (S1) on August 19, 2010 and
then by the Associate Director (AD) on October 18, 2010, that the new
Administrative Officer (AO) was going to be the Data Validation and VERA
Committee Co-Chairperson;
b.2. on December 3, 2010, she was told by S1 that she could no longer
speak with AD without her knowledge;
b.3. AO told her to prepare a presentation for morning report because
she did not know the information well enough or how to explain the
information on December 17, 2010;
b.4. on December 28, 2010, S1 told her that AD was questioning the Data
Validation and VERA Committee minutes again;
b.5. AO refused to support the Data Validation and VERA committee by
refusing the record the meeting minutes and Complainant was forced to
do them on January 27, 2011;
b.6. on January 28, 2011, she had not yet received a response regarding
her request for the Data Validation and VERA committee to receive a
special contribution award even though S1 said that she “would take
care of it;”
b.7. on February 11, 2011, AO told Complainant that AD believed her
reports were confusing and wanted her to change the format of them,
but AD could not offer any suggestions to assist Complainant on them
because she is not familiar with the subject matter;
b.8. on February 11, 2011, AD told Complainant to create a presentation
for AO to present at the Executive Management Board (EMB) Meeting on
February 17, 2011;
b.9. she was told by AO that she needed to help her develop a VERA
presentation for the Strategic Planning Retreat on March 17, 2011 noting
that AO would present the presentation and that she would not;
b.10. on March 11, 2011, she was not introduced as the VISN VERA
Coordinator at the Strategic Planning Retreat and did not participate
in the presentation she prepared for AO; and
b.11. on March 22, 2011, she became aware that she was excluded from the
Mini-Vesting Initiative after S1 asked her to verify that the Mini-Vesting
Process was accurate and compliance with VERA guidelines.
In its April 25, 2011 final decision, the Agency dismissed claim (a)
for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1).
Specifically, the Agency determined that Complainant failed to show
she suffered a personal loss or harm to a term, condition or privilege
of her employment. The Agency determined that because it determined
that claim (a) was dismissed for failure to state a claim, claims (b).1 -
(b).11 would be referred back to EEO counseling and would be processed
as a separate claim.
The record contains a copy of Complainant’s March 10, 2011 request
letter to amend the instant complaint. Therein, Complainant alleged
that on December 1, 2010, she contacted an EEO Counselor “out of
weariness and as a result of hostility displayed by minimizing my work
products, committee meetings, and continued exclusion from key decisions
affecting my area of responsibility. This is retaliation against my
award request.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that a Committee Chairperson, she “was
excluded from [Director’s] initial solicitation to all Chairpersons
and Managers for special contribution award submissions. I’m treated
even worse when I attempted to submit as evidenced by the chain of
even[t]s preceding my submission.” Complainant further states that
she attempted to resolve her concerns, but that she has “. . .been
ignored, shunned, excluded, and subjected to retaliatory hostility.
I tried everything thing I know including contacting the Network Director,
meeting and discussing with my Supervisor/EEO manager, contacting ORM,
agreeing to mediate, and accepting the facility offer w/meeting, to no
avail and much dismay.”
ANALYSIS AND FINDINGS
Claims (b).1 – (b).11
The regulation set forth at 29 C.F.R. 1614.107(a)(2) states, in pertinent
part, that an Agency shall dismiss a complaint which raises a matter that
has not been brought to the attention of an EEO Counselor, and is not like
or related to a matter on which the Complainant has received counseling.
The Agency improperly dismissed claims (b).1 – (b).11 on the grounds
that these matters were not raised in counseling and were not like
or related to the matter raised in counseling. Complainant has
alleged that she was being subjected to a hostile work environment.
A fair reading of the record reflects that matters set forth in claims
b.1 – b.11 are incidents comprising Complainant’s hostile work
environment and have a nexus to the matter identified in claim (a),
discussed further below. Therefore, we find that claims (b).1 – (b).11
are like or related to the matters Complainant raised during counseling.
Claim a
We find that the Agency improperly dismissed claim (a) for failure
to state a claim. A complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the Complainant
cannot prove a set of facts in support of the claim which would entitle
the Complainant to relief. The trier of fact must consider all of the
alleged harassing incidents and remarks, and considering them together
in the light most favorable to the Complainant, determine whether they
are sufficient to state a claim. Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
As set forth above, Complainant is alleging a hostile work environment.
A fair of the record, including, Complainant’s statement on appeal,
reflects that Complainant is alleging that she was excluded from the
Director’s award submission solicitation; her performance was minimized;
and was excluded from committee meetings and decision making process.
Viewing the alleged incidents collectively, we find that the alleged
incidents are sufficiently severe or pervasive to state an actionable
claim of harassment.
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s hostile work environment claim and we REMAND this matter
to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to process the remanded claim (harassment/hostile
work environment) in accordance with 29 C.F.R § 1614.108. 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 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 (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 (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
October 17, 2011
__________________
Date
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01-2011-2759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112759
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