[Redacted], Julieta B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2021004609 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julieta B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004609 Agency No. 200P-0644-2021101806 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision (FAD) dated July 15, 2021, dismissing her 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 Staff Pulmonologist at the Agency’s Veterans Administration Medical Center in Phoenix, Arizona. On May 6, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the basis of sex (female). In support of her claim of harassment, Complainant included a six-page narrative attached to her formal complaint. In the narrative, Complainant recounted a series of events involving the Chief of Cardiology (Chief). Complainant recollected that she was treating a patient when she saw the Chief towering over a fellow (Fellow). The Fellow is a five feet tall female physician, and the Chief is well over six feet tall. Complainant exited the patient’s room and the Chief charged toward her yelling, “I am [the Chief], Chief of Cardiology, why did you not take my patient?” Complainant recalled that the Chief was red, with his neck veins visible, shaking, and pointed aggressively at Complainant; Complainant is 5’6” 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. 2021004609 2 tall, smaller than the Chief. Complainant stated that she was afraid for her fellow, the staff, and herself. Complainant attempted to deescalate the situation, but the Chief continued to yell and curse at Complainant. She also noted that, later that afternoon, Complainant was told by a colleague that Complainant was now fully indoctrinated into the VA since she had been “[Chief]ed.” At no point did anyone in leadership ask Complainant what happened. See Complainant Brief at 14-17. The Agency issued its decision dismissing the complaint. In the FAD, the Agency identified the claim as whether Complainant was subjected to a hostile work environment based on sex when: 1. [O]n January 12, 2021, while complainant was evaluating her patient, she saw the Chief standing in front of the Fellow. The Fellow is approximately 5’0” tall. The Chief, who is well over six feet tall, was towering over the Fellow, pointing at her aggressively, and appeared to be yelling. The Chief continued later to yell at the Fellow over a patient issue as well, or words to that effect. 2. (a) On January 12, 2021, while Complainant was evaluating a patient, the Chief yelled, charged toward Complainant, pointed aggressively, and said, “I am the Chief of Cardiology, why did you not take my patient,” or words to that effect; (b) on January 12, 2021, the Chief, yelled and cursed at Complainant, “you cannot decline my patient!”; “why did you not want to take care of my patient?”; and “who do you think you are to deny my patient?”, or words to that effect; (c) on or about January 12, 2021, Complainant was told by a colleague that she was now fully indoctrinated into the VA since she had been “[Chief]ed” or words to that effect; (d) on or about January 12, 2021, The Chief yelled at Complainant in front of her co-workers; in Complainant’s face, angry; and Complainant felt she was going to be assaulted; (e) on or about February 5, 2021, while Complainant made the morning rounds, the Chief turned around and stared Complainant down while she passed the Chief. Id. at 62. The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency dismissed claim 1 because it found that Complainant was not the person aggrieved and the events involved the Fellow and the Chief. As to claim 2, the Agency found that the alleged actions were neither severe nor pervasive enough to constitute a claim for harassment. Moreover, the Agency found that the alleged actions of the Chief were not “a direct and personal deprivation sufficient to render an individual aggrieved” for the purposes of Title VII. Complainant appealed the FAD. 2021004609 3 CONTENTIONS ON APPEAL Complainant contends that the Agency erred when it dismissed her complaint for failure to state a claim. Specifically, Complainant contends that she was afraid that the Chief was going to physically assault her while he was standing over her yelling at her. See Complainant’s Brief at 4. She alleges that for weeks after the incident, she was limited in every aspect of her life. Id. at 5. Complainant alleges the Chief “used physical intimidation to trap [Complainant], threatened her sense of safety for herself and those around her, and then publicly verbally assaulted her.” Id. Complainant states that she does not believe the Chief would have behaved in such a manner if she and the Fellow, were men because she believed he “viewed them as weak and chose to attack them.” Id. The Agency asserts that the Chief’s alleged actions were not of sufficient severity or pervasiveness, nor were the Chief’s actions accompanied by a concrete action sufficient to render an individual aggrieved for the purposes of Title VII. See Agency Brief at 3. In their brief, the Agency conceded, concerning the Chief’s actions: Although the facility investigated whether [the Chief] engaged in “harassment” and determined that he acted inappropriately, it did not find that [the Chief] engaged in [harassment] based on sex (gender) or any other protected category. [the Chief] engaged in the same type of objectionable conduct with others outside of Complainant’s protected categories (i.e, males etc.). Id. ANALYSIS AND FINDINGS As an initial matter, regarding the Agency’s dismissal of a claim involving Chief’s treatment of the Fellow, in her complaint, Complainant alleged a series of events which allegedly occurred on January 12, 2021 and February 5, 2021. Specifically, Complainant alleged that she was subjected to harassment which created a hostile work environment and supported these allegations with evidence of Chief’s treatment of other female physicians, to include the Fellow. Instead of treating these events as incidents of the claim of harassment, however, the Agency looked at them individually. Thus, we find that the Agency acted improperly by treating matters raised in Complainant’s complaint in a piecemeal manner. See Meaney v. Dep’t of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant’s claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when Complainant’s claims are viewed in the context of Complainant’s complaint of harassment, they state a claim and the Agency’s dismissal of those claims for failure to state a claim was improper. With regard to dismissal due to failure to state a claim, the regulation set forth 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. 2021004609 4 Yet, 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). Moreover, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). The Commission stated, specifically, in Cobb, that: [a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant can prove no set of facts in support of the claim which would entitle the complainant to relief. Thus, a claim of harassment based on the complainant's race, color, religion, sex, national origin, age, or disability, should not be dismissed for failure to state a claim where the complainant has made factual allegations which, when construed in the light most favorable to the complainant, i.e., when considered together and treated as true, are sufficient to state a claim . . . The Commission has held that a complaint which alleges a single incident of unwelcome physical contact, which was perceived by the complainant as physical aggression, intimidation and unequal treatment based on sex, was sufficient to state a hostile or abusive work environment claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. See Osborne v. Dep’t. of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (August 12, 1993). The Agency stated that the events provided by Complainant in support of her claim of harassment were not sufficient to state a claim. We disagree. Complainant asserted that she was physically intimidated by the Chief, specifically noting his use of his physical stature as compared to hers. Complainant claimed that she feared for her safety, as well as those around her. In this case in claim 2, we find that Complainant has alleged sufficient events to raise a viable claim of sex-based harassment. Furthermore, in response to Complainant’s appeal, the Agency noted that the Chief’s actions were sufficient to rise to the level of harassment and bullying. Yet, the Agency argued that the Chief’s actions were not found to be due to Complainant’s sex. See Agency Response Brief, page 3. In doing so, the Agency is determining that this fact alleged by Complainant in support of her claim is not true. 2021004609 5 This goes to the merits of the complaint and is irrelevant to the procedural issue of whether complainant has stated a justiciable claim under the regulations. See Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Therefore, we find that the Agency has acted prematurely in addressing the merits of this event without having first conducted a factual investigation. Complainant alleged that that the Chief engaged in similar behavior with the Fellow, another female physician. While Complainant’s claim regarding the Fellow is not a claim for which Complainant may receive a remedy, Complainant provides this event in support of her claim that the Chief’s behavior towards her was based on her sex. Therefore, we find that although Complainant cannot be remedied for the treatment of the Fellow, she can provide this as supporting evidence regarding her claim of harassment. In light of the forgoing, we find that these events taken as a whole are sufficient to state a claim and that the Agency’s dismissal of the matter was not appropriate. CONCLUSION Accordingly, we REVERSE the Agency’s dismissal of Complainant’s complaint and REMAND the complaint for further processing, in accordance with the Order below. ORDER (E1016) 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 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. If 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 Final Agency Decision, 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 2021004609 6 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. 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 2021004609 7 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). 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. 2021004609 8 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 2, 2021 Date