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

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021000630 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julien T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021000630 Agency No. 2004-0558-2020105364 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 30, 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 Rehabilitation Specialist, GS-12, at the Agency’s Medical Center in Durham, North Carolina. On August 11, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From December 2016 to the present, the Director (D) and the Chief of Library Service (CLS) have failed to honor Complainant’s reassignment request; and 2. Since January 26, 2018, Complainant has been subjected to harassment. 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. 2021000630 2 The Agency dismissed the claims on various grounds. The Agency dismissed Claim 1 for failure to state a claim, asserting Complainant was offered a reassignment but declined it. The Agency dismissed claim 2 for untimely EEO Counselor contact. The Agency further dismissed two additional claims that were raised with the EEO counselor but not referenced in the formal complaint. The first alleged that on January 26, 2018, the Chief, Human Resources Management Service (CHRMS) contacted Complainant by phone and accused him of meddling in a job reassignment of a disabled employee, and the second alleged that on February 22, 2018, CHRMS sent Complainant an email containing Complainant’s revised Fiscal Year (FY) 2018 Performance Appraisal that contained negative discrepancies and statements in the Performance Standards. The Agency found that Complainant abandoned these claims by not including them in his formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim - Claim 1 With regard to the Agency’s dismissal of claim 1 (reassignment) for failure to state a claim, we find that the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. The Agency's articulated reason for the action in dispute - that Complainant was offered a reassignment but declined it - goes to the merits of Complainant's claim and is irrelevant to the procedural issue of whether he 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). Therefore, the Agency erred in dismissing claim 1 for failure to state a claim. Dismissal of “Claims” Not Raised in Formal Complaint Based on our review of the record, we find that the Agency improperly fragmented Complainant’s harassment/hostile work environment claim, which he expressly raised in his formal complaint, by dismissing allegations he raised with the EEO Counselor as factual examples of the alleged discriminatory/retaliatory harassment but did not repeat in his formal complaint. We find that all the examples Complainant provided during EEO counseling are part of his hostile work environment claim even if they were not detailed in his formal complaint. Based on our reading of the record, as part of his harassment/hostile work environment claim, Complainant alleged: he was denied a reassignment; on or about February 22, 2018, CLS gave him a FY 2018 Performance Plan that Complainant found to be “disappointing,” the Plan required him to submit a “DESEP [sic] Workload Data Report which was nothing but an unnecessary work task analysis data report,” and that when Complainant objected, CLS declined to remove the requirement; that on or about April 11, 2018, CLS came to his office negatively 2021000630 3 complaining about, and holding Complainant responsible for, the behavior of one of Complainant’s disabled clients and CLS took away Complainant’s keys to the library; and that on June 14 and 24, 2018, CLS repeatedly came into Complainant’s office and stared at information on Complainant’s computer screen. Untimely EEO Counselor Contact We next address whether or not Complainant’s EEO Counselor contact was timely made. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty- five (45) days of the effective date of the action. Here, it is undisputed that Complainant first initiated contact with an EEO Counselor on August 13, 2018. The Supreme Court of the United States has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, Complainant’s latest allegation proffered in support of his hostile work environment claim occurred on June 24, 2018, more than 45 days from the date Complainant initiated contact with an EEO Counselor on August 13, 2018.2 We recognize that Complainant asserted that the Agency’s failure to reassign him has been ongoing since December 2016. However, Complainant has not identified a specific occurrence of a denial of a reassignment request occurring within 45-days of his EEO Counselor contact. Therefore, it appears that the Agency correctly dismissed the complaint in its entirety for untimely EEO Counselor contact. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s dismissal of the complaint for untimely EEO Counselor contact. 2 Complainant did allege that on July 26, 2018, he witnessed CLS staring at and/or questioning a disabled black female employee which Complainant believed made her feel embarrassed. However, we find that this allegation, without more, does not involve alleged harm directly to Complainant and is not sufficiently connected to the rest of his hostile work environment claim to be considered part of it. 2021000630 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). 2021000630 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 March 8, 2021 Date