[Redacted], Candice B., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 13, 2021

Appeal No. 2020005203 (E.E.O.C. Jan. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candice B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005203 Agency No. 200P-0654-2020102669 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 1, 2020, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Medical Support Assistant, GS-6, at the Agency’s Sierra Nevada Health Care System in Reno, Nevada. On April 13, 2020, Complainant filed a formal complaint claiming that the Agency subjected her to a hostile work environment based on race, disability, and in reprisal for prior protected EEO activity. On July 1, 2020, the Agency issued the instant final decision. The Agency determined that the formal complaint was comprised of the following three matters: 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 2020005203 a. on or about February 8, 2020, when Complainant requested assistance for emergency care, Complainant supervisor told her that she was faking an illness to avoid work or words to that effect; b. on or about February 8, 2020, management did not provide assistance or delayed Complainant from emergency medical care at the VA facility or her medical provider; and c. on or about February 8, 2020, Complainant was listed Absent Without Leave (AWOL). The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The Agency also acknowledged that Complainant had amended her formal complaint to include the following events: i. a violation of the Nevada Nurse Practice Act; ii. a violation of the Master agreement between the Veterans Affairs and Federation of Government employees under section 11 Unlawful orders, section 12 improper orders, section 13 conflicting orders, section 24 wellness program, section 3 service requirement, section 4 occupational health services, section 6 treatment, section 7 pandemics, article 35 section 1 thru 4 time and leave and section e thru h sick shall be granted to title 38 employees; iii. medical misfeasance; iv. negligence and obstruction of the duty to perform reasonable and minimum standard of care; and v. the necessity to report colleagues who engage in unethical behavior that threatens the safety of patients and co-workers. The Agency dismissed claim i though iv, pursuant 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that these matters involved a specific state statute, union rights established by the collective bargaining agreement between the Agency and the union, and various legal concepts. The Agency dismissed claim v, pursuant 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that the Agency’s Office Inspector General, not the EEO complaint process, has jurisdiction to address claims regarding fraud, waste, criminal activity, and management and safety issues. The instant complaint followed. 3 2020005203 ANALYSIS AND FINDINGS Claims a, b, and c 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 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 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 allegations a - c together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment. The actions alleged occurred on the same day as part of a single isolated event and, without more, are simply insufficiently severe or pervasive to state a valid hostile work environment claim in violation of Title VII or the Rehabilitation Act. We note that charging Complainant with AWOL for one day was a discrete personnel action which usually would state a claim. However, in this case, it is undisputed that management rescinded the AWOL charge prior to Complainant filing her complaint. As such, this allegation can only be considered as part of the overall harassment claim, which we have found insufficient to state a viable claim. Collateral Attack - (amended Claims i through iv) An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's adjudicatory proceedings, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). 4 2020005203 The Agency properly dismissed portions of Complainant’s complaint (amendments i through iv) for failure to state a claim due to lodging a collateral attack on several other proceedings. Contrary to Complainant’s arguments on appeal, our review of the formal complaint indicates that Complainant raises dissatisfaction with the outcomes of a negotiated grievance and the Nevada Nurse Practice Act (NNPA) processes. The essence of claims i, iii, and iv concerns Complainant’s claim that Agency officials violated the Nevada Nurse Practice Act when Agency officials allegedly did not provide assistance or delayed Complainant from emergency medical care. The proper forum for Complainant to have raised her challenges to actions that occurred that allegedly violated the Nevada Nurse Practice Act is within that process itself because any remedial relief available to Complainant would be through the NNPA. There is no remedial relief available to Complainant on this matter through the EEO complaint process. The essence of claim ii concerns several alleged violations of the collective bargaining agreement. The proper forum for Complainant to have raised her challenges to actions which violated the collective bargaining agreement is through the negotiated grievance process because any remedial relief available to Complainant would be through the Agency’s collective bargaining agreement. Failure to State a Claim (amended claim v) Here, Complainant asserts that she was discriminated against due to alleged failure to report “unethical behavior” that threatens the “safety of patients and co-workers.” However, the failure to report unethical behavior does not allege a basis of discrimination within the purview of EEO laws and regulations. Therefore, the Agency properly dismissed this claim for failure to state a claim. CONCLUSION The Agency’s dismissal of the complaint and its amendments is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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. 5 2020005203 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (S0610) 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. 6 2020005203 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 January 13, 2021 Date