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

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 2021002019 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frederick J.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002019 Agency No. 2004-0590-2020106257 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 12, 2020, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a registered nurse/staff nurse, VN-0610-02, at the Agency’s VA Medical Center in Hampton, Virginia. On November 25, 2020, Complainant filed a formal EEO complaint alleging he was subjected to discriminatory harassment on the bases of sex (male, sex stereotyping), as well as reprisal for engaging in protected EEO activity (reporting the incident of harassment). In its final decision, the Agency characterized the complaint as consisting of the following allegations: 1. On August 4, 2020 Complainant was subjected to an incident of discriminatory workplace harassment by a coworker when he asked whether a bathroom at a nursing station was for men or for women. Complainant alleged the coworker 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. 2021002019 2 exclaimed, “it is for women and real men and apologized if he had hurt Complainant’s feelings.” 2. On August 5, 2020 Complainant submitted a memorandum documenting the incident to the nurse manager. 3. On August 13, 2020, Complainant met with the nurse manager to discuss the comment made by a co-worker The Agency dismissed the complaint, for failure to state a claim, under 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. In order to state a claim for hostile work environment, a complainant must allege facts which would indicate he or she may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his or her employment. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). The Commission has repeatedly found that claims of isolated incidents of alleged harassment usually are not sufficient to state a viable harassment claim. See Phillips v. Department of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (February 16, 1995). In addition, the Commission has often held that remarks or comments unaccompanied by a concrete agency action may not amount to a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995). However, here we note that Complainant has raised an allegation of unlawful retaliation in violation of Title VII based on the actions of management after he reported the coworker’s remark. 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) he 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. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). 2021002019 3 On appeal, Complainant, through his attorney, argues the Agency misidentified his claim by only including the single incident of harassment by his coworker on August 4, 2020 and not including subsequent acts of retaliation by management. Complainant submits the proper framing is that on or about August 4, 2020, Complainant inquired about a restroom on the unit where he worked, and a male coworker replied that the restroom was for “women and real men only.” Complainant contends that he reported the incident to management the following day and was subsequently assigned to work in another unit as a temporary resolution. Complainant further contends that a week later he was called into a meeting with management and the alleged harasser. Complainant indicates that the alleged harasser denied that he made the statement. Following the meeting, one of the managers told Complainant, “what is said in this room stays in this room,” and “it’s hard to get into the VA, and you got the salary and the job.” Complainant indicates that he was assigned to work with the harasser the day after the meeting. Complainant describes that he reported the incident to the VA Harassment Prevention Program (HPP) hotline because he was disappointed with management’s failure to address his complaint. On or about August 28, 2020 Complainant was called into a manager’s office and was handed a memo that stated his harassment complaint was substantiated and management has taken appropriate steps to address the issue with the offender. Yet, following this nothing was done to the alleged harasser and Complainant remained forced to work with him on the floor. At a minimum, we disagree with the Agency that Complainant failed to allege a viable claim of prohibited retaliation that requires further investigation. The actions taken by management as alleged by Complainant could dissuade a reasonable employee from pursuing a claim of discrimination. While, in response, the Agency has challenged Complainant’s version of events, we find this addresses the merits of the complaint without a proper investigation as required by the regulations. These merits-based arguments are irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). As such, we conclude that the Agency erred in dismissing the complaint in this matter for failure to state a claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s dismissal of Complainant’s complaint is REVERSED, and the matter is REMANDED for further processing in accordance with the following Order. ORDER (E0618) The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. 2021002019 4 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2021002019 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). 2021002019 6 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 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 June 24, 2021 Date