[Redacted], Oliver M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 21, 2021Appeal No. 2021002643 (E.E.O.C. Sep. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002643 Agency No. 200P-0358-2020106599 DECISION On April 1, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a January 21, 2021 final Agency decision (FAD) (which he could not access until March 3, 2021, due to a password issue) that dismissed his complaint alleging 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 the relevant equal employment opportunity (EEO) complaint (“Complaint 1”), Complainant was an applicant for employment for advertised Agency positions. Complainant filed Complaint 1 on November 13, 2020, alleging the Agency discriminated against him based on reprisal for prior protected EEO activity under Title VII when: 1. On August 23, 2020, the Manila Outpatient Clinic Manager rejected his applications for the position of Information Technology (IT) Specialist (CUSTPT) per announcement number CARX-20-10795432-DMO-DH and the position of IT Specialist (INFOSEC) per announcement CARX-20-10795434-KBU-DH. 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. 2021002643 2 2. In the same message that rejected him, the Manila Outpatient Clinic Manager threatened to block his access to MyhealtheVet Secure Messenger.2 The record contains a copy of the Manila Outpatient Clinic Manager’s August 23, 2020 message to Complainant, where he wrote that the recruitment and hiring under the announcements were by the Agency’s Office of Information and Technology (OI&T) in Washington D.C., and not by the Manila Outpatient Clinic. He noted that the announcements read there may not presently be vacancies at all 225 locations, but if they become available during the announcement opening period, resumes would be reviewed to fill any at a particular location. He also stated that at present there were no vacancies in the Information Technology Staff in Manila, and none were anticipated before the job announcement closes. He added that since the Manila Outpatient Clinic was not involved in the recruitment process, Complainant should direct questions about his application to the recruitment office in Washington, D.C. and he provided relevant contact information. Finally, the Manager stated that the MyhealtheVet Secure Messenger which Complainant used to send his communicate his desire to be selected for the vacancies was a tool meant to communicate medical concerns with a patient’s health care team. He noted that its terms and conditions list unacceptable conduct that may result in being blocked, including “Using Secure Messaging for communicating non-medical issues” [with a link verifying this]. He warned Complainant to keep this in mind going forward. The Agency dismissed Issue (1) for failure to state a claim because OI&T was responsible for all the relevant hiring decisions, not the Manila Outpatient Clinic. But it added that the claim concerning Complainant not being hired for these vacancies was being addressed in another EEO complaint (“Complaint 2”). We take administrative notice that Complainant filed Complaint 2 (Agency No. 200P-0005- 2021100072) on December 20, 2020. On February 26, 2021, the Agency defined Complaint 2, in relevant part, as alleging discrimination based on national origin (not Filipino), race/color (Caucasian/white) when Complainant was told his applications per vacancy announcements CARX-20-10795432-DMO-DH and CARX-20-10795434-KBU-DH were rejected. Complaint 2 is currently pending before an EEOC hearings unit (EEOC Hearing No. 480-2021-00522X). The Agency dismissed Issue (2) for failure to state a claim because it arose from Complainant’s status as a beneficiary of the Agency’s Rehabilitation and Employment program (VRE), which is why he had access to the MyhealtheVet Secure Messenger, and not as an applicant for employment. The instant appeal followed. 2 We have not included several allegations the Agency defined and dismissed which Complainant clarifies on appeal were not intended to be actionable but were prior protected activity for which he claimed he was later retaliated against. 2021002643 3 ANALYSIS AND FINDINGS On appeal, Complainant explains that Issue (1) of Complaint 1 concerns the Manila Outpatient Clinic Manager unlawfully retaliating against him by interjecting himself into the application process by rejecting him for hiring under announcements CARX-20-10795432-DMO-DH and CARX-20-10795434-KBU-DH. However, we find that Complaint 2 is sufficiently broad to include the matters in Issue (1) of Complaint 1, except the basis of reprisal - which states a claim. We will address how to remedy the reprisal matter in the Order below. On appeal, Complainant argues that the message to him by the Manila Outpatient Clinic Manager threatening to block his access to the MyhealtheVet Secure Messenger arises from his status as a job applicant, not a VRE beneficiary. We find it arises from both. The Commission has a policy of considering reprisal claims with a broad view of coverage. Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000), EEOC Enforcement Guidance on Retaliation and Related Issues, at Sec. II.B.1 & 2, OLC Control No. EEOC-CVG-2016-1 (Aug. 25, 2016). We find that the Manila Outpatient Clinic Manager advising Complainant of the MyhealtheVet Secure Messenger usage policy, which is published on its website, would not reasonably likely deter EEO activity. Therefore, we agree that the Agency properly dismissed it for failure to state a claim. CONCLUSION The Agency’s dismissal of the complaint is AFFIRMED. However, the Agency shall comply with the following Order with regard to Complaint 2. ORDER Within 15 calendar days of the date of this decision, the Agency shall file a motion with the EEOC AJ assigned to Complaint 2, via FedSEP, to amend Complaint 2 to add the basis of reprisal for prior protected activity. With the motion, the Agency shall include a copy of this decision. 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). 2021002643 4 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. 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 2021002643 5 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2021002643 6 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 September 21, 2021 Date Copy with citationCopy as parenthetical citation