[Redacted], Hui E, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 16, 2021Appeal No. 2021003923 (E.E.O.C. Dec. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hui E,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003923 Agency No. 200406372021102060 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the May 25, 2021 final agency decision (“FAD”) dismissing her 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 Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sewing Machine Operator, WG-5, within the Linen Section of Environmental Management Service at the Veterans Affairs Medical Center (“VAMC”) in Ashville, North Carolina. On April 19, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination including a hostile work environment/harassment on the bases of sex (female), disability and reprisal for prior protected EEO activity when:2 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 The listed allegations are framed based on the Agency’s FAD, but organized chronologically. 2021003923 2 1. Between March 2020 and July 2020, Complainant’s first level supervisor (“S1”) deliberately caused her anxiety by informing her that her former supervisor (“FS”), the subject of her prior harassment complaint was on campus. 2. On April 28, 2020, S1 did not report her ankle injury to workman’s compensation, and by not doing so, caused her to pay out of pocket expenses for her care. 3. Between August and October 2020, S1 allowed the male employees to leave early, and also allowed Complainant to leave early. 4. On October 5, 2020, she learned that S1 did not report her previous on the job injury to workmen’s compensation, which delayed her surgery, and caused her to pay out of pocket expense. 5. On October 5, 2020, S1 questioned her about working overtime and when she responded, he further asked why she did not inform him. 6. On October 5, 2020, S1 told her she could not have a beverage in her office due to “infectious disease protocol.” 7. On October 21, 2020, S1 asked her, “you’re just getting back from your appointment?” after seeing her in the hallway a few minutes prior. 8. On December 28, 2020, S1 did not respond when she asked him to check her time and attendance. 9. On December 29, 2020, S1 instructed her not to give a [pregnant] employee a uniform. 10. On January 6, 2021, her second level supervisor (“S2”) and S1 both denied her request for a lock to be placed on her office door. 11. On January 11, 2021, S1 attempted to eavesdrop on her while she was on a call. 12. On January 20, 2021, S1 told her she could not meet with the Employee Assistance Program (“EAP”) in her office. 13. On January 27, 2021, S1 did not inform her that he no longer reported to S2. 14. On January 28, 2021, S1 told her that she was incorrect in submitting time into VATAS system while submitting her leave. 15. On January 29, 2021, S1 suggested that she contact the EAP to discuss her “anger issues” after she yelled at him. 2021003923 3 16. On January 29, 2021, S1 violated her privacy when he got in front of her to look at her computer while her PIV was still attached to her computer. 17. On February 1, 2021, S1 came into her office talking to her while she was on a call. 18. On February 1, 2021, S1 instructed her to order new uniforms. 19. On February 2, 2021, S1 did not respond when she paged him to ask a question. The Agency dismissed complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. On appeal, the Agency also argues that Complainant waived her right to raise the issues alleged in Claims 1 through 12, based on a January 21, 2019 negotiated settlement agreement (“NSA”) she entered into with the Agency. The instant appeal followed. ANALYSIS AND FINDINGS Allegations 1 through 12 EEOC Regulation 29 C.F.R. § 1614.504(a) provides that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties. The Commission has held that a settlement agreement constitutes a contract between the employee and the Agency, to which ordinary rules of contract construction apply. See Herrington v. Dep't of Def., EEOC Request No. 05960032 (Dec. 9, 1996). The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention that controls the contract’s construction. Eggleston v. Dep't of Veterans Affairs, EEOC Request No. 05900795 (Aug. 23, 1990). In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the plain meaning rule. See Hyon O. v. United States Postal Serv., EEOC Request No. 05910787 (Dec. 2, 1991). This rule states that if the writing appears to be plain and unambiguous on its face, its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature. See Montgomery Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984); Complainant v. United States Postal Serv., EEOC Appeal No. 0120140143 (Feb. 20, 2014). Term 2.4 of the NSA, provided by the Agency on appeal, states that Complainant agreed to: release the Agency and all its officers, agents, and employees in their official and individual capacities from all claims which [Complainant] has or may have against them arising out of the events and circumstances related to [her prior] 2021003923 4 complaint3 and any other complaints to the extent that they arose before or by the date of this fully executed agreement and/or could have been complained of prior to or by the date of this agreement. Emphasis added. Complainant does not challenge the validity of the NSA, but rather, argues that the NSA does not apply to the instant complaint. Specifically, Complainant asserts that the events referenced in Allegations 1 through 12 concerned “different issues and different people,” and therefore, did not “arise out of the events and circumstances related to [her prior] complaint.” Based on the plain language of the Agreement, we find that Term 2.4 applies to Allegations 1 through 12 regardless of whether they “arise out of the events and circumstances related to [her prior] complaint,” because they allege issues that “could have been complained of prior to or by the date of this agreement.” In other words, under Term 2.4, Complainant waived her right to raise any EEO claims concerning events prior to January 21, 2019. As Complainant is precluded from raising the issues alleged in Allegations 1 through 12, we decline to address the Agency’s alternate reasons for determining these allegations failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). Allegations 13 through 19 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 they have 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). If complainant cannot establish that they are aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Regarding Allegations 13 through 19, it is well established that a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Similarly, as Complainant is raising a reprisal claim, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage. 3 EEOC Hearing No. 430201900563X (Agency No. 200406372019100225) 2021003923 5 Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). Even considered together, the allegations in 13 through 19, are not sufficient to state a hostile or abusive work environment claim, nor are they reasonably likely to deter Complainant and others from engaging in protected EEO Activity. Complainant’s allegations involve routine work assignments, instructions, and admonishments, which are all “common workplace occurrences” that do not rise to the level of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted, see also, e.g. Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18, 2000) (complainant’s allegation that her supervisor monitored her work duties and time in and out of the office more closely than her coworkers amounted to a common workplace occurrence). On appeal, Complainant offers additional context, explaining that S1 is aware of her mental disabilities, which include Anxiety, Bi-polar, PTSD, and Schizoaffective-Disorder, and the alleged harassing actions are examples where he “purposefully tries to get under my skin so to emotionally get to me with my disability.” For instance, Allegations 15 and 16 concern an incident where Complainant asked S1 a question, and she alleges he insisted on taking over her laptop, even though her PIV card was still in it, violating Agency policy and visibly triggering Complainant’s anxiety. By Complainant’s own account, they both yelled at each other, at which point, S1 suggested that Complainant utilize the EAP for her “anger issues.” Based on the record, S1 allegedly made a similar suggestion a few days earlier when S1 came into Complainant’s office and interrupting her phone call (Allegation 17) was also an attempt to “get under her skin.” While S1’s comment and actions in Allegations 15, 16 and 17 may have been insensitive in light of his awareness of her disabilities, they are not sufficient to state a viable claim of a hostile work environment. The Commission will not consider statements made during mediation. Confidentiality is considered one of the "Core Principles" of Alternative Dispute Resolution (“ADR”). "Parties who know that their ADR statements and information are kept confidential will feel free to be frank and forthcoming during the proceeding, without fear that such information may later be used against them." See EEOC Management Directive for 29 C.F.R. Part 1614., Ch. 3 § II.a.3 (Aug. 5. 2015) citing the Administrative Dispute Resolution Act of 1996 (“ADRA”) codified as 5 U.S.C. §574. Throughout the record and in submissions to the Commission, Complainant makes improper references to confidential mediation proceedings. Because confidentiality is essential to the success of all ADR proceedings, the Commission will not consider any statements made during mediation (or descriptions of Complainant’s impressions of S1’s demeanor, actions, etc., while preparing for or during mediation) in this decision. See Nakesha D. v. Dep’t of the Army, EEOC Appeal No. 0120161782 (Oct. 11, 2016). 2021003923 6 New claims of discrimination cannot be considered at the appellate stage of the EEO process. On appeal, Complainant raises new claims of retaliatory harassment by S1, including, but not limited to, daily bullying, efforts to “push her out” of her job in the sewing room, and allowing others to use her desk, preventing her from completing her work. However, since these new claims were not part of her formal complaint, they cannot be adjudicated in this decision. If Complainant wishes to pursue these new claims in an EEO complaint, then (if she has not done so already) she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION Accordingly, the Agency’s decision dismissing Complainant’s complaint is AFFIRMED. 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. 2021003923 7 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. 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 December 16, 2021 Date Copy with citationCopy as parenthetical citation