0120161043
04-26-2016
Jarrod W.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jarrod W.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161043
Agency No. 200I06262015105234
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 29, 2015, dismissing his 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 Physician, Medical Services at the Agency's Tennessee Valley Health Care System facility in Murfreesboro, Tennessee.
On October 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discrimination on the bases of race (African-American), sex (male), age (72), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Specifically, Complainant alleged discrimination, when:
1. On September 4, 2015, he learned that the Chief of Pharmacy and the Pharmacist had "conferred in his absence concerning a professional opinion that he rendered about a patient in his care" and referred his actions for an investigation by the Ethics Committee;
2. On an ongoing basis, management undermined his authority by allowing others to conduct tests on patients under his care, and subjecting him to a "pattern of conduct aimed at discrediting [him] and forcing [him] to retire;"
3. On an ongoing basis, he was subjected to "disfavor" in treatment and denied promotional opportunities, when compared to the treatment that management provided to physicians from India, Pakistan and Africa;
4. On an unspecified date, he requested remote computer access, but he was given the access only after he explained to the Chief why he needed it; and
5. He was ridiculed and insulted at meetings based on his age and disability and he recently "overheard the Chief of Staff expressing aloud his rage against [Complainant]."
The Agency issued a final decision dismissing the complaint for failure to state a claim. The Agency determined his claim "fails the severe or pervasive requirement for further processing because [Complainant] failed to allege facts that demonstrate how [he was] aggrieved." The Agency found that the formal complaint lacked specificity. Because the complaint alleged reprisal, the Agency reasoned "we do not believe the event described...represents an employer action that would prevent or deter a reasonable person from participating in the EEO process, as [Complainant] actually did." The Agency dismissed the entire complaint.
This appeal followed.
On appeal, Complainant asserts that "over the years, [he] observed [a] lack of diversity in race, age, sex, and professional advancement." He maintains that he is an "Afro-American male over 60 years of age" and experienced "what may be age, race, sex [discrimination] and professional attacks." He states that he also had prior EEO activity. He offered examples of the promotional opportunities he was denied and restated his claim that that he was subjected to harsher terms and conditions and ridiculed based on his age and his physical condition.
ANALYSIS AND FINDINGS
Failure to State a Claim
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, 1614.106(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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In this case, a fair reading of the complaint shows that Complainant has alleged ongoing harassment based on his race, sex, age, national origin and reprisal, when he was referred to the ethics committee after his professional judgment was questioned, he was discouraged from speaking up at meetings; he was denied promotional opportunities provided to others not of his protected group and management permitted ageist ridicule in the workplace.
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. We find that the alleged claims, if considered together and proven true, are sufficiently severe and pervasive to allow Complainant to establish a discriminatory hostile workplace environment claim. For these reasons, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We hereby REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The remanded claims include claims that Complainant was subjected to disparate treatment with regard to the terms and conditions of employment, and a hostile work environment, based on his race, sex, national origin, age and reprisal. 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 (M0815)
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 tends 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, 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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 26, 2016
__________________
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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