[Redacted], Lu T., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

Appeal No. 2020000238 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lu T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000238 Agency No. 200J-0583-2019103642 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 13, 2019, 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 During the period at issue, Complainant worked as a Licensed Practical Nurse at the Agency’s Richard L. Roudebush VA Medical Center in Indianapolis, Indiana. On August 2, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, sex, and in reprisal for prior EEO activity when, on April 29, 2019, a “false” report was made to VA Police, and she was subjected to a VA Police investigation on the matter. In its August 13, 2019 final decision, the Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. 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 2020000238 ANALYSIS AND FINDINGS 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. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The claims related to purported actions by the EEO Specialist filing a “fake” report to the VA Police. According to the VA Police Report filed on April 26, 2019, the EEO Specialist felt intimidated by Complainant as well as by three other union officials when they “stood around and cornered him” during a discussion regarding the Agency’s determination not to release information related to a university student project. In the report, the EEO Specialist claimed that Complainant and other union officials, in their official union capacities, had previously attempted to obtain the results of a student study and that their request for a copy had already been denied by the facility’s director. The EEO Specialist explained immediately following the denial of such a request that he claimed Complainant and the union officials confronted the university students responsible for the study, demanding that they provide the union officials with a copy of the report. The EEO Specialist claimed that he and the university students attempted to reiterate to Complainant and union officials that they were not permitted to release a copy of the report. Thereafter, the EEO Specialist contacted the VA Police. Following an investigation of the April 26, 2019 incident, the VA Police declined to pursue any criminal charges against Complainant or anyone else. While the alleged Agency action may have been considered by Complainant as reflective of a lack of professionalism, Complainant nonetheless has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the event described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The Agency’s final decision dismissing the formal complaint for failure to state a claim is AFFIRMED. 3 2020000238 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 4 2020000238 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 January 28, 2020 Date