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

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021001747 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Justin P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001747 Agency No. 200P05012020103281 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's September 28, 2020, dismissal of 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., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-6, at the Raymond G. Murphy VA Hospital in Albuquerque, New Mexico. On July 1, 2020, Complainant filed a formal EEO complaint alleging that he was subjected to harassment/a hostile work environment on the bases of race (African-American), age (68), and reprisal for prior protected EEO activity when: (1) In February 2020, management failed to act when he reported that a co-worker (“C1”) in his work area continually removed her face mask and coughed and sneezed. Complainant asserted he believed this was unsafe due to Covid-19. 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. 2021001747 2 (2) On July 10, 2020, Complainant amended his complaint to include the following additional allegations of discriminatory harassment on the bases of race, age, and reprisal for prior protected EEO activity (including activity related to the instant complaint): (a) on June 2, 2020, another coworker (“C2”)2 stared at him while crossing and returning to his work area, (b) on June 9, 2020, C2 stared at Complainant while crossing and returning to his work area, (c) on July 8, 2020, as Complainant was heading toward his car, C2 approached him, stared him down, and continued to stare at him as C2 walked down the street, and (d) on July 21, 2020, while Complainant was talking with another co-worker, C2 stared him down and stated, “there’s a lot of bullshitting going on around here” or words to that effect. The Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The instant appeal 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 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). Claim 1 Consistent with the position of the United States Supreme Court, the Commission has long held that a generalized grievance fails to state a claim. See Warth v. Seldin, 422 U.S. 490, 499 (1975). Without a specific injury alleged under the anti-discrimination statutes, a complainant is not considered “aggrieved” for purposes of EEOC regulations, and for that reason, allegations that are determined to be generalized grievances fail to state a claim. Diaz. Under the 29 C.F.R. Part 1614 EEO complaint process, the alleged injury to the complainant must involve a discriminatory factor. 2 Complainant did not allege there was a connection between C1 in Claim 1 and C2 in Claim 2. 2021001747 3 Here, Complainant alleges that management failed to act when he reported that a co-worker in his work area continually coughed and sneezed while removing her face mask. However, based on Complainant’s own allegations, the alleged failure to enforce Covid-19 precautions in Claim 1 was not specific to Complainant because it impacted other employees working in the same area regardless of their race, age or prior protected activity.3 After a review of the entire record, including Complainant’s statement on appeal, we find that Complainant has not identified a specific injury tied to a discriminatory factor, or asserted that he was the only employee impacted by the alleged action. As such, we agree with the Agency that, under the particular circumstances presented by this case, Claim 1 is a generalized grievance more properly characterized as asserting a safety violation rather than a claim of discrimination. As such, it was properly dismissed for failure to state a claim. Claim 2 - Harassment/Hostile Work Environment 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 discriminatory 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 incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” 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. 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 considering all of Complainant’s allegations under Claim 2 together, and Complainant’s further explanations on appeal, we do not find Claim 2 describes actions that, if proven true, are so severe or pervasive as to alter the conditions of Complainant’s employment. Likewise, we find that the incidents described are unlikely to deter Complainant or others from engaging in protected EEO activity. 3 We note that Complainant did not allege a claim under the Rehabilitation Act that he was entitled to an accommodation for a disability in the form of seclusion from coworkers who did not properly follow face mask safety protocols. 2021001747 4 CONCLUSION Accordingly, we AFFIRM the Agency's final decision to dismiss 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. 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. 2021001747 5 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 March 8, 2021 Date