0120160836
04-11-2016
Madelaine G.,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
Madelaine G.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160836
Agency No. 200JVI122016100086
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated December 9, 2015, dismissing 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 worked as a Health Technician (GS-4) at the Agency's Jesse Brown VA Medical Center facility in Chicago, Illinois.
On November 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity under Title VII when: from February 2015 through October 2015, the Supervisor for Fiscal Services ("FS") and her staff sent Complainant numerous emails falsely stating that they were working on restoring Complainant's November 4, 2013 sick leave.
On November 4, 2013, Complainant was on duty, yet her supervisor ("S1") charged her eight (8) hours of sick leave. Complainant discovered the missing leave on December 13, 2013 and made numerous attempts to get the leave restored. In February 2015, Complainant sought assistance from an EEO Counselor, alleging that by charging the 8 hours of sick leave and failing to reinstate them, S1 subjected her to a hostile work environment based on reprisal. Complainant filed a formal complaint on April 14, 2015 and on May 14, 2015 the Agency dismissed her complaint as untimely. (Agency No. 200J-0537-2015102386) Complainant appealed, and the matter was submitted for a hearing.
Meanwhile, Complainant alleges that one of FS's staff informed her in February 2015 that she submitted a remedy ticket to the Defense Financial Accounting Service ("DFAS") to restore Complainant's November 4, 2013 sick leave. Complainant emailed with other members of FS's staff and FS for updates in March and July 2015. When Complainant requested a status update On October 2, 2015, she learned that despite all of her previous communications with fiscal services, a remedy ticket had not been submitted to DFAS until October 1, 2015. Complainant alleges that FS intentionally delayed the process to reinstate the sick leave as retaliation for Complainant's prior EEO claims, including Agency No. 200J-0537-2015102386, against S1, who Complainant further alleges is SF's friend.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, that an Agency shall dismiss a complaint that fails to state a claim. Under � 1614.107(a)(1) a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency fails to state a claim. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996) reversed on other grounds, EEOC Request No. 05960524 (April 24, 1997)
The Agency argues, and we agree, that Complainant states an identical claim to the one she brought in Agency No. 200J-0537-2015102386 ("the prior complaint"), which, as of the date Complainant submitted this appeal, was pending a hearing before the Agency. In her prior complaint, Complainant alleged that she was "subjected to a hostile work environment based on reprisal when on November 4, 2013, S1 charged her Sick Leave for a day that she worked." Complainant acknowledges that she filed the instant complaint on the same basis and with the same purpose as her prior complaint: to restore the eight (8) hours of sick leave erroneously deducted for November 4, 2013. On appeal, she attempts distinguish the instant complaint by pointing out that she names a different management official and different alleged discriminatory action. Regardless, the prior and instant complaint are identical within the context of � 1614.107(a)(1). Ultimately, the prior and instant complaint both concern the same time, place, incident, and parties.
In the alternative, we find Complainant fails to state a claim or reprisal. The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)
Taking this broad view of coverage into consideration, and after a thorough review of the record, we find Complainant failed to establish that she was subjected to a hostile work environment. Complainant alleges in the record that she spoke with at least three different individuals within the Agency's Fiscal Service office in addition to FS. Though understandably frustrating, receiving different information from different individuals within the same office, and a delayed submission of a remedy ticket are common workplace occurrences. Unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass Complainant on the basis of a protected class, here reprisal, such everyday events are not sufficiently severe or pervasive to constitute a hostile work environment. See Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); (citing Wolf v. United States Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998) Moreover, the instant complaint alleges one delayed request. We have long held that a few isolated incidents of alleged harassment are usually insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995)
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
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. 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
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 11, 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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