[Redacted], Madlyn F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021002034 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madlyn F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002034 Agency No. 2003-0554-2021100965 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 10, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Credentialing Coordinator, GS-9, at the Agency’s Eastern Colorado Health Care System in Aurora, Colorado. On January 11, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black), sex (female), disability, and reprisal for prior protected EEO activity when, on October 8, 2020, Complainant’s Quality Section Chief (“Chief”) failed to take action when an Administrative Officer (“Administrative Officer”) went near Complainant’s “work area and harassed her.” The Agency dismissed this claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. 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. 2021002034 2 On appeal, Complainant contends the Agency misidentified Complainant’s claim and framed her claim according to the Agency’s characterization of the claim and the formal complaint that Complainant submitted. Complainant submits the proper framing is that from late 2019 to late 2020, Chief failed to take action when Administrative Officer went near the Complainant’s “work area and harassed her.” Complainant further contends the Agency improperly considered the merits of her complaint in reaching its decision. Complainant further elaborates on appeal that she was previously subjected to harassment by Administrative Officer when he was her supervisor in or around 2016, leading her to file an EEO complaint against him at that time. In early 2018, Complainant moved positions to escape from Administrative Officer’s harassment. However, in late 2019 Administrative Officer obtained a new position where his duties included delivering documents to Complainant’s work area. She informed Chief of the prior harassment and contends Chief has failed to take any action to prevent Administrative Officer from continuing to harass her. The Agency contends on appeal that Complainant failed to correct the initial characterization of her complaint despite the opportunity to do so, and that the merits of her complaint were not considered in reaching the decision to dismiss Complainant’s formal complaint for failure to state a claim of harassment or hostile work environment. 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). “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...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.” Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). 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. 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’.” 2021002034 3 In determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee's work performance. See Harris, 510 U.S. at 21 (1993); Enforcement Guidance at 6. The Supreme Court has stated that: “conduct that is not severe or pervasive enough to create an objectively hostile work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993). Keeping in mind Complainant's clarification on appeal, we still find her allegations fail to state a claim of harassment or hostile work environment. Nowhere does Complainant provide details about the type or frequency of harassment that is alleged to have occurred. In her initial contact, Complainant indicated Administrative Officer “comes into [her] area of work & as a result of a previous [hostile work environment] complaint & having to previously submit to his leadership, it now affects [her] disability.” (Complaint File, 1). This document states the Complainant would provide the counselor incidents to show hostile work environment. (CF, 3). The Notice of Informal Counseling provides the same description as the initial contact. (CF, 14). The Counselor’s Report notes that Administrative Officer “comes near [Complainant’s] work area and harasses her. [Complainant] claims there are some previous [hostile work environment] issues (did not clarify).” Complainant stated Administrative Officer’s presence was affecting her disabilities, she had reported these issues to Chief, who did nothing about it, and no other co- workers are subjected to the same treatment. (CF, 36-37). A Summary of Contact about the issue indicates Complainant feels harassed by Administrative Officer’s presence, “although he has not said anything to her that was inappropriate.” (CF, 40). Thus, even taken in the light most favorable to Complainant and assuming her allegations are true, she has failed to state a justiciable claim for harassment, regardless of the merits of her complaints. While at this stage, there is no requirement that Complainant produce evidence in support of her claim of ongoing harassment, she needs to make sufficient factual allegations to state a viable claim that warrants further processing. Here, Complainant’s vague allegations are not sufficient to state a hostile or abusive work environment claim. As indicated above, harassment is actionable as a claim of employment discrimination only if, allegedly, the harassment is sufficiently severe or pervasive to alter the conditions of a complainant's employment. Thus, the Agency correctly dismissed Complainant’s complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 2021002034 4 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. 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). 2021002034 5 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 June 14, 2021 Date