[Redacted], Jerold Y., 1 Complainant,v.Dat Tran, Acting Secretary, U.S. Department of Veterans Affairs (VA Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021000090 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerold Y.,1 Complainant, v. Dat Tran, Acting Secretary, U.S. Department of Veterans Affairs (VA Health Administration), Agency. Appeal No. 2021000090 Agency No. 200H-0642-2020104755 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 10, 2020, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0343-11, at the Agency’s Crescenz Medical Center in Philadelphia, Pennsylvania. On July 21, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination. The record includes Complainant’s signed formal EEO complaint form. As the requested remedy, he asked that his mid-year performance evaluation be revised and that he be reassigned. Complainant’s complaint is otherwise blank. It is missing any information regarding the bases, claims, and dates of the alleged discrimination. The record does contain the related EEO counseling report in which the counselor wrote that Complainant was alleging that he was being harassed by his management based on his race 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. 2021000090 2 (African American). According to the counselor’s report, Complainant alleged the following incidents in support of his claim: 1. on June 18, 2020, Complainant received a “harassing” email from the Nurse Manager regarding a work product; 2. on June 23, 2020, the Associate Chief Nurse sent an email, “Auto Activation Report,” stating Complainant lacked problem-solving skills and was unable or unwilling to work through issues; 3. on June 24, 2020, the Group Manager told Complainant, during a mid-year progress meeting, “you are not a child. I shouldn’t have to hold your hand;” and 4. on June 24, 2020, Complainant received a “needs to improve in order to be fully successful” on the Progress Review sections of Complainant’s mid-year performance review. All the individuals named by Complainant as discriminating against him are Caucasian. On appeal, Complainant confirms that he is alleging ongoing harassment based on his race. He says that he has been subjected to the above-referenced belittling conduct, and other similar conduct which he did not detail. Complainant acknowledged that he “had not been able to build a positive working relationship with his managers,” which he attributes to “the premise of negative stereotypes that comes with being Black, educated, and assertive in the workplace.” The Agency issued a final decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that the events did not constitute adverse employment actions. The Agency also determined the claims were not sufficiently severe or pervasive to create a discriminatory hostile or abusive work environment. This appeal from Complainant followed. ANALYSIS AND FINDINGS 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). 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 2021000090 3 incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” Here, we first note that Complainant submitted an essentially blank complaint form and his claims are based on a review of the EEO counseling report. However, viewing these allegations together and assuming they occurred as alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment sufficient to violate Title VII. His allegations relate to two isolated communications with managers that he characterized as belittling in tone, and a mid-year progress review that he believed was unfairly critical. There actions alleged, without more, are simply insufficiently severe or pervasive to state a valid claim of racial harassment which requires further investigation and processing. Upon review, we find that Complainant's complaint was properly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 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. 2021000090 4 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). 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. 2021000090 5 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