[Redacted], Kylee C., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2021003082 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2021003082 Agency No. HHS-IHS-0999-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 23, 2021, dismissing a formal 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 During the period at issue, Complainant worked as a Cook at the Agency’s Sioux San Hospital in Rapid City, South Dakota. On July 17, 2019, Complainant initiated EEO contact. Informal efforts to resolve her concerns were unsuccessful. On September 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Native American), sex (female), disability, and in reprisal for prior protected EEO activity. In its April 23, 2021 final decision, the Agency framed Complainant’s claim in the following fashion: 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. 2021003082 2 Complainant alleged that she was subjected to harassment when: 1. In late 2017, Complainant alleges she asked for training and a permanent position, neither of which she received. 2. On June 6, 2019, Complainant received notice that she was to be included in a Reduction in Force (RIF). The Agency dismissed issue (1) for untimely EEO Counselor contact. The Agency reasoned that Complainant alleged that she was denied training and a permanent position in late 2017. The Agency, in a footnote, sets forth that the date used for calculating timeliness was December 31, 2017 because Complainant did not provide a specific date in 2017 that she was denied training or a position. The Agency reasoned that Complainant’s EEO contact on July 17, 2019, occurred more than 45 days from the actions at issue in claim (1). With respect to a hostile work environment claim, the Agency reasoned that the alleged events at issue in claim (1) occurred years before the RIF in claim (2). The Agency dismissed issue (2), the RIF, for failure to state a claim. The Agency reasoned that “the mission of the federal Indian Health Service is to administer tribal health care facilities until such a time as a tribal entity is able to assume control (638 assumption). The tribes are sovereign nations and the tribal assumption of a facility is something the IHS cannot stop, challenge, impact or change. In the instant case, as well as with all IHS facilities that have gone through the 638 process, IHS cannot provide relief to state a claim because IHS lacks the authority and/or jurisdiction…” The instant appeal followed. ANALYSIS AND FINDINGS Dismissal of Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should 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. We find that the Agency improperly dismissed issue (1) for untimely EEO Counselor contact. As an initial matter, upon review of Complainant’s formal complaint and pre-complaint documents, we find that Complainant is alleging an ongoing hostile work environment claim including but not limited to, being denied overtime, being denied training, being detailed to Purchase Referred Care (PRC) for several years, being denied a permanent position, and being subjected to a RIF. 2021003082 3 While the Agency used December 31, 2017 as a calculation date, we find, upon review of the record, that Complainant is alleging an ongoing hostile work environment from late 2017 until she was subjected to the RIF.2 The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim “collectively constitute one unlawful employment practice,' the entire claim is actionable, as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Because Complainant received the RIF notice within 45 days preceding her initial EEO contact on July 17, 2019, Complainant’s overall hostile work environment is timely. Dismissal for Failure to State a Claim The Agency improperly dismissed Complainant's complaint for failure to state a claim. As set forth above, Complainant is alleging an ongoing hostile work environment claim. 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. In the instant matter, Complainant is alleging that she was subjected to an ongoing hostile work environment including being denied overtime, being detailed for several years, being denied a permanent position, being denied training, and subjected to a RIF. Upon reviewing these alleged incidents collectively, we find that these matters are sufficiently severe or pervasive to set forth an actionable claim of harassment. Regarding the Agency’s assertion that Complainant was subjected to the RIF due to the 638 tribal assumption process,3 we find that this assertion goes to the merits of the complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim. 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 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). 2 The EEO Counselor’s Report provides, in pertinent part, that in late 2017, Complainant was detailed to PRC (where she remained until July 2019) and during the year and a half she was with PRC, she “repeatedly asked for training and applied for several vacant positions.” (emphasis added). 3 The record contains a copy of the RIF Notice from an Agency Human Resources official to Complainant dated June 6, 2019. Therein, the human resources official sets forth that Complainant will be separated from “federal employment” effective August 6, 2019, due to Complainant’s position being abolished as a result of the closure of the dietary department. 2021003082 4 Complainant is alleging that she was subjected to a RIF, well as a hostile work environment, by the Agency based on her protected classes. Thus, she has set forth an actionable claim. Accordingly, we REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) 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 the 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 the 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 FAD, 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 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. 2021003082 5 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 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. 2021003082 6 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. 2021003082 7 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 August 19, 2021 Date