0120162214
09-02-2016
Margot Y.,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
Margot Y.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162214
Agency No. 200P-0691-2015104088
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 21, 2016, 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 Support Specialist at the Agency's West Los Angeles Veterans Affairs Medical Center.
On June 25, 2015, Complainant initiated EEO Counselor contact.2 Informal efforts to resolve her concerns were unsuccessful.
On July 25, 2015, Complainant filed a formal EEO complaint alleging she had been subjected to discriminatory harassment/a hostile work environment on the bases of race (African American), sex (female), and in reprisal for prior EEO activity. In support of her claim, Complainant alleged the following incidents occurred:
1) on October 30, 2014, she was rated as Fully Successful on her 2013/2014 performance rating, which did not accurately reflect the quality of her work;
2) on November 18, 2014, her supervisor withheld a copy of her performance rating;
3) on April 23, 2015 and June 25, 2015, her supervisor questioned her about reading her emails and her understanding of annual leave;
4) on June 26, 2015, she was threatened with being marked Absent Without Official Leave (AWOL);
5) on June 25, 2015, her supervisor raised his voice at her when he questioned why she was late; and
6) on July 11, 2014, a supervisory official threatened to deny Complainant overtime.
On September 14, 2015, the Agency issued a partial dismissal. Therein, the Agency addressed allegations 1-5 in the following fashion. Regarding claim 1, the Agency first identified this claim as a "discrete act," and found that because it was not raised within forty-five days with an EEO Counselor and dismissed it as an independent claim. However the Agency found that allegation 1 was "sufficiently related to the overall pattern of harassment. . .and will be included in for consideration in the analysis of the harassment claim."
The Agency next considered allegations 1-5 and determined that the claim of harassment based on race and sex "fails the 'severe or pervasive requirement' for further processing." However, the Agency accepted allegations 1 - 5 for investigation as a "retaliatory harassment claim."
Regarding allegation 6, the Agency found that complainant raised the same matter in a prior informal complaint. Specifically, the Agency noted that the EEO counseling report in informal complaint no. 200P-0691-2014104036 included the threat to deny overtime in July 2014. The Agency noted further that this allegation was raised as part of various of alleged harassing events purportedly occurring in 2013 through July 11, 2014. The Agency noted that Complainant never filed a formal complaint regarding 200P-0691-2014104036 and considered all matters raised therein to have been abandoned. The Agency specifically stated that "all events raised. . .that occurred during the period of 2013 through July 11, 2014" were dismissed for failure to state a claim.
On March 21, 2016, the Agency issued the final decision at issue in the instant appeal. In it, the Agency reaffirmed its dismissal of allegation 6 for stating the same claim that was raised in a prior EEO complaint (Agency Case No. 200P-0691-2014104036), reiterating that matters raised between 2013 and July 11, 2014 had been abandoned in the prior informal complaint discussed above.3 The Agency also dismissed allegation 1 on the grounds of untimely EEO Counselor contact. Finally, the Agency dismissed allegations the entire harassment claim (consisting of allegations 1 - 5), not only on the bases of race and sex, but also reprisal, for failure to state a claim.
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to state a claim of Harassment/Hostile Work Environment
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. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'." Following a review of the record, we find that in the instant case, viewing the allegations together and in the light most favorable to Complainant, that she has sufficiently asserted a viable claim of a discriminatory hostile work environment. By alleging an ongoing pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
In addition, as part of her harassment claim, we note that Complainant has alleged unlawful retaliation for engaging in prior EEO activity. The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id.
On appeal, Complainant argues that the allegations identified by the Agency were representative of the "constant" harassment she experienced, stating, "I thoroughly documented the harassment, notified the EEO counselor, I informed the investigator the constant intimidation I received was the reason the formal retaliation claim was delayed after my performance review. I feared for my job and wellbeing after [supervisor] clearly stated he had plans on retaliating against me and had been actively doing so. My deteriorating mental and physical health due to [supervisor's] abuse was not taken into serious consideration . . ." We find that the Agency erred in concluding Complainant failed to assert a viable claim of retaliatory harassment.
Untimely EEO Counselor contact
We note that Complainant initiated EEO Counselor contact on June 25, 2015, within days of some of the incidents she proffered in support of her harassment claim. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Therefore, the Agency cannot dismiss any of the allegations logically connected to Complainant's overall harassment on the grounds of untimely EEO Counselor contact.
Claims raised during the period of 2013 through July 11, 2014 (including allegation 6)
First we note that the Agency excluded allegations, not expressly identified in either the partial dismissal or the Agency's final decision (with the exception of allegation 6), asserting they were abandoned by Complainant when she failed to follow through with a previous informal complaint identified as Agency No. 200P-0691-2014104036. However, the record does not contain a copy of Agency Case No. 200P-0691-2014104036. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, we find that the Agency improperly dismissed these allegations. Given the comprehensive nature of Complainant's harassment claim, allegations raised by Complainant in support of her overall harassment claim should be considered as well in the investigation of the formal complaint.
CONCLUSION
Accordingly, we REVERSE the Agency's dismissal of the complaint in this matter, defined as a complaint of ongoing discriminatory and retaliatory harassment, and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (harassment/hostile work environment) on the bases of reprisal and race and sex, 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 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 (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 (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 Complainants 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
September 2, 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.
2 In its final decision, the Agency incorrectly identified Complainant's initial EEO Counselor contact as July 25, 2015, instead of as June 25, 2015.
3 We note that on page 2 of the final decision, the Agency makes one inadvertent reference to the claims as having purportedly occurred from 2003 (instead of 2013), until July 11, 2014).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120162214
2 0120162214
8
0120162214