[Redacted], Lois G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2021003786 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lois G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021003786 Agency No. 200P-VI22-2021101489 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 17, 2021, dismissing her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer, GS-12, at the Agency’s VA Medical Center (VAMC) in Los Angeles, California. On March 10, 2021,2 Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of sex (female) and reprisal for prior protected EEO activity (prior EEO complaints). Complainant stated, on August 19, 2020, an Agency Police Officer (C1), with whom she was in a relationship for 20 years, sexually assaulted her; on September 22, 2020, she delivered a restraining order against C1 from the local police department to the VAMC Director (S1) and Chief of Police; and S1 failed take action and investigate her allegation. 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. 2 Complainant initiated EEO counselor contact on December 22, 2020. 2021003786 2 Further, Complainant alleged that someone tampered with her Agency laptop and phone and, on December 29, 2020, S1 denied Complainant’s request to rescind a July 31, 2017 suspension. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency stated, on October 20, 2020, Complainant and the Agency entered into a global settlement for all EEO claims prior to that date. The Agency cited 29 C.F.R. § 1614.504 to instruct Complainant how to file a breach of settlement agreement claim if she wished to do so. Further, the Agency stated that the July 31, 2017 suspension was addressed in the October 2020 settlement agreement so that matter was dismissed as stating the same claim that has been decided by the Agency previously. The record contains an October 20, 2020 settlement agreement between Complainant and the Agency providing, in pertinent part: 1.b. . . . Complainant hereby settles, waives, withdraws, and forever discharges the Agency . . . from any and all complaints, claims, grievances, appeals, expenses, and damages of any kind, which are or may be asserted by the Aggrieved Person/Complainant on the Aggrieved Person/Complainant’s behalf, based on any event occurring before the Aggrieved/Complainant’s execution of this agreement. . . 5.c. The Aggrieved Person/Complainant is advised that she has not waived any rights or claims that may arise after the date of the Agreement. The instant appeal from Complainant followed. On appeal, Complainant stated that the Agency has not addressed the matter of sexual harassment at issue here and that the harassment claim follows the date of the October 20, 2020 agreement. ANALYSIS AND FINDINGS 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, disabling condition, genetic information, or reprisal. 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 (April 21, 1994). Here, we affirm the Agency’s procedural dismissal of this complaint. First, provision 1.b. of the settlement agreement signed by the parties on October 20, 2020, clearly states that it resolved all claims by Complainant “based on any event occurring before the Aggrieved/Complainant’s execution of this agreement [emphasis added].” 2021003786 3 The alleged sexual assault occurred on August 19, 2020, and Complainant provided the Agency with the restraining order on September 22, 2020 - both events occurring before the signing of the settlement agreement. The Agreement also addressed the July 31, 2017 suspension and 2016 to 2019 performance appraisals and provided that her concerns would be submitted to the VAMC Director for review and consideration, without a predetermined outcome. To the extent these events are part of the complaint, we agree with the Agency that they should also be dismissed. Therefore, we conclude that Complainant waived her right to adjudicate any claims relating to these events. We note the Agency has properly provided Complainant with information on filing a breach of settlement agreement claim if she believes such a breach has occurred. Finally, with regard to the allegation of tampering with Complainant’s Agency equipment, we conclude that, without more, this fails to state a viable claim of discriminatory harassment. The actions alleged are simply insufficiently severe or pervasive to state a valid claim of a violation of Title VII. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“…isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment”). CONCLUSION Based on the above, we AFFIRM the final agency decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1). 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). 2021003786 4 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). 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. 2021003786 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 December 14, 2021 Date