Genny L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 15, 2020

2019004589 (E.E.O.C. Jan. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genny L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004589 Agency No. 200H06202019102854 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency’s June 19, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Program Analyst, GS-13, at the Hudson Valley Health Care System, Montrose VAMC, located in Montrose, New York. On May 24, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), color (Black), sex (female) and reprisal (prior EEO activity) when: 1. On April 1, 2019, her Supervisor (“S1”) changed her schedule, 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. 2019004589 2 2. On May 9, 2019, S1 issued a mid-year performance appraisal for her, which did not reflect the work performed. 3. On various dates, including April 30, 2019, S1 subjected her to harassment to include the following actions: a. Denying her request for sick leave, b. Stalking (pretending to look for her when she knew where she was), c. Sending her threatening emails, d. Sending text messages to her personal cell phone, and, e. Ordering her to report to a different work location an hour from her home without reimbursement, which was not in her job posting, then threatening to mark her down as AWOL when she refused. 4. On unspecified dates, S1 subjected her to further harassment by:2 a. Micromanaging her and asking her about her whereabouts, b. Changing her supervisors, c. Failing to respond to her complaints and concerns, d. Preventing her from attending the Executive Governance Board meetings, and, e. Trying to make her work outside her reasonable accommodation restrictions.3 5. On September 21, 2018, she was prevented from attending a staff meeting. 6. On or about October 2018, she was given a performance appraisal score that was lower than she felt she deserved. The Agency dismissed claims 1, 2, 3, and 4 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), and dismissed claims 5 and 6 for untimely EEO contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. 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. 2 Additional harassment claims added in Complainant’s May 24, 2019 formal complaint. 3 While not listed as a basis for discrimination in her formal complaint, Complainant raises a disability discrimination claim with respect to an alleged attempted denial of reasonable accommodation pursuant to Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. 2019004589 3 §§ 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. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Claims 1, 2, and 3 Once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Here, on May 13, 2019 Complainant received a Notice of Right to File (“NTRF”) a formal complaint from the Office of Resolution Management (“ORM”). It is undisputed that she timely filed her formal EEO complaint on May 24, 2019. However, the record also contains an email dated May 16, 2019, from Complainant to an EEO Counselor at ORM, which states, “Thank you for the assistance you provided me during the [in]formal phase of my EEO compliant. At this time, I will not pursue a formal complaint.” The Agency found that this email constituted a formal withdrawal of Complainant’s informal complaint, effectively closing it and therefore dismissed Complainant’s subsequent May 24, 2019 formal complaint. We disagree and find the Agency erred when it deemed the complaint closed based on Complainant’s May 16, 2019 email, as she was still within the 15-day limitation period to file her formal complaint when she changed her mind and filed her formal complaint on May 24, 2019. Moreover, the language “at this time” is not sufficient to indicate a finalized formal withdrawal. As Complainant did not withdraw her complaint, Claims 1, 2, and 3 were not “previously raised” given that the action was open and timely filed. Claims 1, 2, and 3 were improperly dismissed, under 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Claims 3 and 4 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. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). In determining whether a harassment complaint states a claim, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. Id. Additionally, We have repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). 2019004589 4 Considering the allegations together, we find Complainant successfully states a claim of ongoing discriminatory harassment. Additionally, the alleged harassment in Claim 4 is “like and related” to the harassment originally alleged by Complainant during EEO. Claims 5 and 6 In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). With regard to the timeliness of a claim of harassment, because the incidents that make up a harassment claim collectively constitute one unlawful employment practice, the claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. Such a claim can include incidents that occurred outside the filing period that the complainant knew or should have known were actionable at the time of their occurrence. See Bulluck v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0120114276 (Mar. 14, 2012); Richardson v. United States Postal Serv., EEOC Appeal No. 0120111122 (Feb. 1, 2012). The Supreme Court has held that no recovery is available for discrete acts such as hiring, firing, and promotions that fall outside the filing period, even if they are arguably related to other discriminatory acts that occur within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See also EEOC Compliance Manual 915.003, Section 2: “Threshold Issues,”(rev. July 21, 2005). However, as the Court recognized, an employee may use the prior discrete acts as background evidence in support of a timely harassment claim. Claims 5 and 6 describe incidents that occurred well outside the 45 day limitation period for contacting an EEO counselor. We find Claim 5 describes an “isolated incident” because it alleges one instance, at least six months prior to Complainant’s other harassment allegations, where Complainant was excluded from a leadership staff meeting. Claim 6 concerns a performance appraisal, which we have previously found is a “discrete act.” See O'Kane v. Dep’t of Treasury, Appeal No. 0120101731 (Aug. 19, 2010). Therefore, Claims 5 and 6 are not separately actionable, but may be used as relevant background evidence for Complainant’s harassment claims. 2019004589 5 Alternately, on appeal, Complainant essentially argues that she lacked reasonable suspicion of discrimination for the alleged actions in Claims 5 and 6, until she experienced the alleged harassment in Claims 3 and 4. We note that the second sentence of Complainant’s formal complaint provides: “When I was first hired I was told by numerous staff members including people in human resources and the nursing staff that African-Americans consistently were not given a fair shake and if you were black your issues would not be taken seriously.” On appeal, she indicates that she was aware that the alleged exclusion from the leadership meeting (Claim 5) had an ongoing negative impact on her work. She also states that she requested a review by management for her October performance appraisal (Claim 6), indicating she did not believe it was correct at the time she received it. We find this sufficient indication that reasonable suspicion existed for these claims well over 45 days before they were raised. Claims 5 and 6 were properly dismissed for untimely EEO contact pursuant to 29 C.F.R. § 1614.107(a)(2), but may be considered as background information in Complainant’s harassment claims. CONCLUSION The Agency’s dismissal of Claims 1 - 4 is REVERSED and these claims are REMANDED for processing in accordance with the following Order.4 The Agency’s dismissal of Claims 1, 2, and 3 is REVERSED. ORDER (E0618) The Agency is ordered to process the remanded claims (Claims 1, 2, 3 and 4) 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 4 We note that the Agency, while dismissing the complaint at issue in its entirety, referred several additional allegations of harassment for EEO counseling. If Complainant has filed a formal complaint on these additional allegations, the Agency should, to the extent possible, consolidate for further processing the complaint at issue in this appeal with that subsequent complaint. 2019004589 6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. 2019004589 7 A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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. 2019004589 8 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’s signature Carlton M. Hadden, Director Office of Federal Operations January 15, 2020 Date