[Redacted], Carl Y., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000978 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carl Y.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000978 Agency No. 2003-0554-2020104188 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 13, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Housekeeper in Denver, Colorado. On August 27, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (African-American), sex (male), religion, disability, age, and retaliation. In its October 13, 2020 final decision, the Agency determined that the formal complaint was comprised of the following claims: 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. 2021000978 2 1. On March 5, 2020, the Housekeeping Supervisor (S1) issued him a Notice of AWOL charging him 30 minutes of AWOL. 2. On April 24, 2020, the Agency removed Complainant from employment. 3. Complainant was subjected to a hostile work environment as evidenced by the following events: a) In 2018, S1 asked Complainant if he thought he was going to make it to 20 years of service with the government. b) From 2019 to April 24, 2020, S1 insisted Complainant and other staff refer to her as “m’am” due to gender transition and became upset when Complainant called S1 “sir.” In its final decision, the Agency dismissed claim (1), being charged AWOL, reasoning that this matter was previously raised in the grievance process. The Agency dismissed claim (2) reasoning that this matter, Complainant’s removal, was previously raised with the Merit Systems Protection Board (MSPB). The Agency dismissed claim 3(a)-3(b) for failure to state a claim. The Agency reasoned that the alleged incidents were not sufficiently severe or pervasive to set forth an actionable claim of harassment. Finally, the Agency dismissed the basis of reprisal reasoning that participation in the union grievance process is not protected EEO activity. The instant appeal followed. ANALYSIS AND FINDINGS Claim (1)-AWOL Charge EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination. The Agency properly dismissed claim (1). The record reflects that Complainant previously raised the matter set forth in claim (1), the AWOL Charge, in the grievance process. The record contains a copy of the applicable collective bargaining agreement (CBA). The CBA allows for claims of discrimination to be raised. 2021000978 3 Claim (2)-Removal A “mixed” case is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB. pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non - EEO process. The Agency properly dismissed claim (2). A review of the record reflects that Complainant previously appealed the matter of his termination to the MSPB (MSPB Docket No. DE-0714-20- 0253-I-1). The record reflects that the parties entered into an MSPB settlement agreement dated June 22, 2020. Claim 3(a)-3(b)-Hostile Work Environment In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. A claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Agency properly dismissed claim (3)(a)-3(b) for failure to state a claim. The alleged incidents, even if proven true and considered together, are not sufficiently severe or pervasive to set forth an actionable claim of harassment. Regarding the basis of reprisal, we find that the alleged incidents are not reasonably likely to deter Complainant or other from engaging in protected activity. We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above.2 2 Because we affirm the Agency’s final decision dismissing Complainant’s complaint for the reasons set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2021000978 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 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, a 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). 2021000978 5 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. 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 9, 2021 Date