0120160185
02-04-2016
Kim S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kim S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160185
Agency No. 20DR00102015104161
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 24, 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 Health Systems Specialist at the Agency's Veterans Health Administration facility in Washington, D.C.
On August 20, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of race (Caucasian), sex (male), religion (Not Specified), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:
1. The Acting Supervisor (AS) instructed Complainant to act in a way that resulted in building security rules and regulations being violated. Complainant was the only one told to obtain one of multiple personal items from the building. No action was taken. She singled Complainant out for different treatment. Complainant indicated that he needed to get a property pass.
2. Complainant asserted that he was held to a different standard than other employees who process correspondence. In all cases, all late items are charged against his performance. The other employees are not accountable and create more significant delays.
3. The AS was brought into the office to escape a hostile work environment she created elsewhere. Complainant used to cover in the absence of the Director, now he no longer has that opportunity. The AS often acts as the Director.
4. The Director has issued performance standards that do not comply with OPM requirements nor has the process of issuing the standards complied with OPM regulations. These do not take into account workload volume and have other construction flaws. Complainant indicated that he has raised these concerns to higher levels and no action has been taken. The two white males in the office have had more field offices to support than any minority females, our standards are based on "no more than five" errors, our workload is much higher than other minority employees thus the chance for errors is higher.
5. The Director is not held accountable for compliance with basic supervisory responsibilities: other employees approve his leave, she makes it difficult for him to take leave, and she does not assist in helping to resolve outstanding issues with other offices. From day to day, Complainant did not know if the Director is in the office or if the AS is the supervisor. Various Agency initiatives are not implemented within the office and higher level officials are completely non-responsive when issues are brought to their attention. Different employees under the AS, in identical positions, find themselves subject to different circumstances when it comes to ability to use leave, telework, collateral duty opportunities, and in many similar workplace issues. Minority females are treated different and the record shows they have had by far greater promotional opportunities.
6. Complainant is held accountable for work that is completed by others, in other organizational elements, his position is non-supervisory and most of these other organizational elements are supervised by individuals who report to my supervisor's supervisor. The Director can make much ado about any late items assigned to him while completely overlooking that minority peers have great numbers of late assignments - by selectively involving or informing the Director of only Complainant's late items.
The Agency defined the events as the following: a) continuing until September 2015, the Director has not allowed Complainant to serve as acting director but has asked the AS to serve as acting; b) on or about June 15, 2015, the Director took no action when Complainant informed her that the AS refused to sign his VA Form (property pass), which he needed in order to remove his personal property from the building, and had a VA police officer escort him out of the building; c) on July 8, 2015 and July 13, 2015, the Director made it difficult for Complainant to take leave by asking questions prior to approving his request; and d) on an unspecified date in July 2015, the Director issued Complainant his performance standards, which he alleges do not comply with the Office of Personnel Management (OPM) regulations and also make him accountable for work completed by other staff members.
The Agency dismissed event (a) for stating the same claim as a prior EEO complaint. The Agency indicated that the complaint was raised and withdrawn. As such, the Agency dismissed event (a) pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claim in a prior EEO complaint.
The Agency then dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that the events only took place during a two month period and were not sufficiently severe or pervasive enough to state a claim of harassment. In addition, the Agency stated that Complainant did not indicate that these events would have a "chilling effect" on an employee's right to participate in the EEO complaint process. Therefore, the Agency concluded that the matter should be dismissed.
Complainant appealed noting that he was told by the EEO Counselor that if the issue of assignments continued, he could raise the matter again and provided emails supporting his assertion. Complainant argued that the Agency only looked at events (b) - (d) when it dismissed his complaint. He asserted that the Agency failed to recognize that he alleged events (1) - (6) in his EEO complaint. As such, Complainant requested that the Commission reverse the Agency's dismissal.
The Agency responded to the appeal. The Agency indicated that Complainant's emails with the EEO Office showed that Complainant withdrew the complaint in which he raised claim (a). Further, the Agency argued that the events raised by Complainant were not sufficiently severe or pervasive to state a claim of harassment. As such, the Agency asserted that its FAD properly dismissed the complaint and that the Commission should affirm the decision.
ANALYSIS AND FINDINGS
Claims Raised in Formal Complaint
As an initial matter, we find that the Agency failed to properly identify Complainant's claim of discrimination. The Agency narrowed the events listed on Complainant's formal complaint to events (a) - (d). A review of the record clearly showed that Complainant listed events (1) - (6) in his formal complaint. As such, we shall review the Agency's dismissal based on events (1) - (6) as listed by Complainant.
Same Claim - Event (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Upon review, we note that Complainant has asserted additional incidents when the Director did not place Complainant in the action position. As such, we find that Complainant has not raised the same events before the Agency. Furthermore, the emails provided by Complainant show that the EEO Counselor stated to him that "As I mentioned before, you can always start a new complaint, if the need arises. Let me know if you ever have any questions." When the problem persisted, Complainant raised the additional events in the instant complaint. Therefore, we find that the Agency's dismissal of event (3) was not appropriate.
Failure to State a Claim - Claims (1) - (6)
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, .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 he is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 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. Upon review of the claims raised in his complaint, Complainant has asserted, among other events, that he was subjected to discrimination and harassment regarding assignment of "acting supervisor," requesting leave, and being singled out for issues such as obtaining property passes and being held accountable for the work of others. We find that the events listed as events (1) - (6) are sufficiently severe and pervasive to state a claim of harassment. Therefore, we conclude that the Agency's dismissal of the complaint was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims 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 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 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, 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
February 4, 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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