[Redacted], Minda W., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021001502 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minda W.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001502 Agency No. ARPOLK20AUG02853 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's replacement decision dated December 9, 2020, dismissing her complaint alleging unlawful employment discrimination in violation of 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 a Behavioral Health Consultant, GS-12, at the Agency’s U.S. Army Medical Command, Bayne-Jones Army Community Hospital (“BJACH”), Primary Care, Combined Troop Medical Clinic in Fort Polk, Louisiana. On November 18, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliation. Specifically, Complainant alleged she was discriminated against when subjected to harassment which led to a hostile work environment manifested by her supervisor (“Major”) and the colonel in command of BJACH (“Colonel”) when: a. On 13 November 2020, Complainant was the only provider seeing patients at the Soldier Centered Medical Home (“SCMH”), she was the only person in the building other than one Medical Service Assistant in the lobby, and that the clinic was left unlocked with no 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. 2021001502 2 plans for safety and emergencies. Complainant states this was another example of marginalizing her expertise and there being no thought for her well-being. b. On 8 September 2020, there was reprisal by Colonel and a co-worker (“Co-worker”) who diminished Complainant’s role and standing among staff in the clinic when Co-worker introduced another social worker as the Behavioral Health Consultant at a meeting, thus diminishing Complainant’s role in the clinic and her standing among the staff, as well as placing Complainant in an adversarial position with a colleague. c. On 19 August 2020, Complainant was denied a request to speak in private with Colonel concerning alleged harassment (non-sexual) by a co-worker. d. On 19 August 2020, Colonel glared at Complainant, making her feel “weak and completely demoralized” during a meeting Complainant requested with Colonel. Colonel invited Co-worker, Co-worker’s supervisor, and an unidentified male to the meeting. e. On 19 August 2020, Colonel directed a co-worker, not in Complainant’s chain of command, to direct Complainant’s day-to-day work activities, to include taking directives from the Group Practice Manager regarding place of duty on any given day; training at BJACH Primary Care clinic to do the job she had been performing at the outlying clinics for the past five (5) years; altering duty days between Fontaine Troops Medical Center (“FTMC”) and SCMH; and completing the National Patient Safety Goal (“NPSG”) monthly audits. f. On 7 August 2020, Major informed Complainant that she needed to revisit a decision she made earlier regarding Complainant’s work location. Major stated that Colonel ordered a change in Complainant’s work location and to resolve an access to care and underutilization issue. g. On 12 July 2020, Major provided Complainant feedback from Co-worker alerting Complainant to the fact that Major was aware Co-worker's behavior towards Complainant would not likely change. h. On or about 10 June 2020, Co-worker instructed the Medical Services Assistants at the SCMH not to schedule Complainant’s appointments at the FTMC resulting in patients not being given the opportunity to have same day or next appointments. i. On or about 10 June 2020, Co-worker advocated that Complainant should work more days at the SCMH due to access to care issues and that she continued to deceive every level of management and Human Resources with the same dishonest speech. j. On or about 10 June 2020, Co-worker revealed to another coworker that her goal was to highlight underutilization of Complainant’s services at FTMC. 2021001502 3 k. On or about 1 through 30 June 2020, Co-worker along with Group Practice Manager were having email communications with other managers as if they were Complainant’s supervisors. l. On 27 February and 10 June 2020, Complainant reported harassment and hostile work environment by Co-worker to Major, yet the harassment continued and escalated to retaliation. m. On or about 1 through 30 February 2020, Co-worker questioned Complainant’s leave request as if she were Complainant’s supervisor. n. One or about 1 through 30 February 2020, as Complainant walked to her car one evening with Co-worker, Co-worker casually commented, while laughing, that she has the personal phone number of everyone in the command suite on her personal cell phone and that she regularly presents directives as being from Colonel in meetings. The Agency dismissed claims (a)-(n) for failure to state a cognizable claim under 29 C.F.R. § 1614.107(a)(1). Complainant filed the instant appeal. On appeal, Complainant contends she faced “harassment, hostile work environment, retaliation and being treated unfairly because of the color of [her] skin”.2 (Ex. Complainant’s Statement on Appeal). The Agency does not provide an appellate response. 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 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). An “aggrieved employee” is 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). 2 Complainant raises the color of her skin as a new basis for discrimination on appeal. She did not raise skin color as a basis for discrimination during her EEO counseling or in her formal complaint. There are circumstances in which we allow the addition of a new basis of discrimination to a formal complaint on appeal. The circumstances of this case, however, do not support such an outcome. Absent a compelling reason, a complainant may not add a new basis on appeal. See Lauren S. v. U.S. Postal Serv., EEOC DOC 2019005144 (Oct. 20, 2020) (citing Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (Mar. 27, 1997))). 2021001502 4 Terms, conditions, or privileges of employment include, inter alia, promotion, demotion, discipline, reasonable accommodation, appraisals, awards, training, benefits, assignments, overtime, leave, tours of duty, etc. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (March 13, 1997); Becerra v. Dep’t of the Navy, EEOC DOC 0120083490 (Jan. 13, 2012). In this case, while Complainant disagrees with Co-worker's management decisions, such as the assignment of patients or responsibility for NPSG audits, and resents that these decisions have been enforced by Colonel and/or Major, Complainant has not alleged a personal loss or harm to a term, condition or privilege of her employment. By her own statements, Complainant alleges only theoretical harm, not actual harm. For example, in her formal complaint and various supporting documents, Complainant refers to Coworker’s “pattern of attempts to commandeer every aspect of my job”, and actions by Co-worker that “indicates plans for reprisals”, or “could result in failure and appearance of poor job performance”, “could tarnish my credibility”, “attempts to manage my work”, “increasing tension in the work environment,” “her goal was to highlight underutilization of [Complainant’s] services”, and becoming “increasingly fearful of what would happen next, expecting reprisal” (emphasis added). One of the few concrete harms alleged involved Complainant’s duty location. Complainant alleges Co-worker has tried to get Complainant moved to SCMH and that Colonel ordered a change in Complainant’s work location from two days a week at SCMH and three day a week at FTMC to increase Complainant’s time at SCMH to three days a week. However, Complainant also notes that she had not always worked at SCMH “but when given the opportunity to expand my reach and increase utilization, [she] volunteered and was eager to split [her] time between the two clinics.” Therefore, Complainant has not alleged how this change in assignment has caused an actual harm since she was already working at both clinics and eager to do so. Additionally, in order to state a claim for hostile work environment, a complainant must allege facts which would indicate the complainant may have been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his or her employment. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). When determining whether a harassment complaint states a claim, the fact finder must examine whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. Nat'l Aeronautics & Space Admin., EEOC Request No. 05970388 (Feb. 26, 1999). When examining Complainant's alleged incidents together and taking them to be true, we find that they are not sufficiently severe or pervasive to establish a hostile work environment. CONCLUSION The Agency’s dismissal of claims (a)-(n) is AFFIRMED. 2021001502 5 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). 2021001502 6 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