[Redacted], Davida L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 6, 2022

Appeal No. 2022004203 (E.E.O.C. Oct. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Davida L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022004203 Agency No. 200P-612-2022-144822 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 25, 2022, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as an Advanced Medical Support Assistant at the Agency’s Sacramento Mental Health Clinic in Mather, California. On April 15, 2022, Complainant filed a formal EEO complaint claiming that the Agency subjected her to a hostile work environment based on race, color, age, and in reprisal for prior protected EEO activity when: a) on or about November 2021, a supervisor told Complainant that at no time Complainant would be supported, protected, and Complainant was on her own; 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. 2022004203 2 b) on January 4, 2022, management informed and questioned Complainant about a complaint filed against her by a veteran; and c) on March 9, 2022, a supervisor set up Complainant in situations that were inherent to failure and appeared that Complainant was insubordinate, not following directives or words to that effect. Complainant’s formal complaint also included additional claims which the Agency characterized as including the following: • On March 9, 2022, Complainant’s Weingarten Rights were allegedly violated when Complainant was not provided documentation of the complaint of inappropriate work conduct filed against her. • On January 4, 2022, during management’s inquiry of a patient complaint, “witnesses that are of color and present at the time of the incident were not questioned, nor asked to write a statement,” or words to that effect. • Complainant identified “entrapment” and “requests” as bases for the alleged discriminatory actions. In its July 25, 2022 final decision, the Agency dismissed the formal complaint on several procedural grounds. Regarding Complainant’s hostile work environment claims (Claims a - c), the Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that these claims were not sufficiently severe or pervasive enough to constitute an actionable harassment claim. The Agency then dismissed the remaining claims pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that: (1) a claim alleging violation of Weingarten Rights was not within the Commission’s jurisdiction; (2) a claim challenging a managerial fact-finding inquiry for a patient complaint against a facility medical staff member was a collateral attack on the Agency’s Office of Inspector General (OIG) and Office of Accountability and Whistleblower Protections (OAWP) process; and (3) “entrapment” and “request” were not covered bases of discrimination under the Commission’s jurisdiction. The instant appeal followed. 2022004203 3 ANALYSIS AND FINDINGS Harassment claims (Claims a - c) An agency shall accept a complaint from any 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 (Apr. 21, 1994). The regulation at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Here, Complainant’s harassment claims consist of (a) being told that management would not support her, (2) being talked to about a patient’s complaint about her; and (c) believing that management has staged scenarios to insinuate that she was insubordinate. There is no indication that Complainant’s employment status was adversely affected by these alleged incidents. Even assuming these isolated incidents occurred as alleged, the Agency did not err in concluding these incidents, without more, were neither sufficiently severe nor pervasive to set forth an actionable claim of discriminatory harassment in violation of Title VII. 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’.” Complainant has asserted three separate and isolated incidents of management not supporting her, having a complaint filed by a patient against her, and Complainant appearing insubordinate that are not enough to form a claim of hostile work environment harassment. The employment discrimination laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc,. 523 U.S. 75, 81 (1998). Failure to State a Claim Collateral Attack: Weingarten Rights2 and Management Inquiry The Commission has held that 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). 2 Weingarten Rights guarantee an employee the right to union representation during an investigatory interview. 2022004203 4 A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, 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). Here, the essence of the claims at issue concern Complainant’s disagreement with how management conducted an internal inquiry regarding a patient complaint filed against Complainant. The proper forum for Complainant to have raised her challenges to actions that implicated her Weingarten rights are within the collective bargaining grievance system. There is no remedial relief available to Complainant on this matter through the EEO complaint process. Therefore, the Agency properly dismissed Complainant’s allegations concerning these matters pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Uncovered Bases: Entrapment and Requests The regulations at 29 C.F.R. §§ 1614.103, 1614.106 require an Agency to accept a complaint from an aggrieved employee or applicant who believes that he has been discriminated against because of race, color, religion, sex, national origin, age, disabling condition, or reprisal for prior EEO activities. See also, Odoski v. Dep’t of Energy, EEOC Appeal No. 0119901496 (Apr. 16, 1990). If a complaint fails to clearly identify a covered basis within our jurisdictional purview, then it must be dismissed. See Emmanuel L. v. Dep’t of the Air Force, EEOC Appeal No. 0120171680 (Jul. 11, 2017). Here, Complainant has not adequately articulated a covered EEO basis for discrimination claims when she identified “entrapment” and “requests” as two of the bases for her claims. Complainant’s formal complaint (VA Form 4939) included instructions that it was to be used by employees and applicants who thought they had been discriminated against due to race, color, religion, sex, national origin, age, genetic information, disability, or reprisal. Complainant did not select these options when she raised “entrapment” as a basis for management allegedly creating situations where she appeared insubordinate. Additionally, Complainant did not select the applicable bases when she alleged “requests” as a basis of discrimination when she alleged that management failed to provide her documentation regarding a complaint filed against her. Therefore, we find that the Agency properly dismissed these bases raised in the relevant claims for failure to state a claim. CONCLUSION The Agency’s final decision dismissing the formal complaint is AFFIRMED. 2022004203 5 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). 2022004203 6 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 October 6, 2022 Date