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

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2021002947 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxana Y.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002947 Agency No. 200H-0630-2020105599 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 19, 2020, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked as a Program Support Assistant, GS-8, at the Agency’s New York Health Care System, Brooklyn Campus in Brooklyn, New York. On August 5, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On September 10, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination and harassment based on race, sex, color, disability, veteran status, and in reprisal for prior EEO activity when she was retaliated against for whistleblowing, not selected for unspecified positions in 2018, 2019, 2020, and ongoing denied promotions; reassigned in July 2020; demoted in duties assignments; issued “false reprimands;” received negative evaluations; defamation of character; entrapment; derogatory comments; adverse 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. 2021002947 2 employee action; issues regarding leave; intimidation; workplace violence; bullying; and intent to hurt reputation.2 In its November 19, 2020 final decision, the Agency dismissed the formal complaint on two grounds. First the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(7), for failure to state a claim finding that Complainant was not aggrieved. Second, the Agency dismissed the complaint for failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). The Agency asserted that it repeatedly requested information regarding the vacancies, positions, and dates related to her non-selection during the informal phase in August 2020 and even after the instant formal complaint was filed. The Agency found that Complainant failed to provide the requested information needed to process her complaint and determine whether claims were timely and would be accepted for investigation. After failing to provide the requested information, the Agency sent another email on November 17, 2020, requesting additional information. The Agency stated that on November 21, 2020, Complainant responded, claiming that she submitted an email with details on November 13, 2020. However, the EEO Counselor never received Complainant’s November 21, 2020 email. The record reflects that during this period, Complainant became ill and took leave under the Family Medical Leave Act (FMLA). She was on extended leave from December 18, 2020 to March 26, 2021. Complainant asserted that during this time, it was impossible for her to reply appropriately and in a timely manner. The Agency noted, however, that at that same time, Complainant was, and has been, represented by her union president, who is also her representative in other complaints before the Commission. The Agency stated that Complainant participated in the pre-hearing process for another pending complaint during this period. Specifically, Complainant engaged in mediation on November 23, 2020 with discussions continuing in early December 2020, January 2021, and February 2021, she further communicated with Agency representative and her representative regarding the parties joint pre-hearing submission. The instant appeal followed. On appeal, Complainant argues that she “was involuntarily reassigned, I was in the midst of dealing with a hostile work-environment, and having to process simultaneously four active EEO cases. I was limited to communications and have underlying medical conditions that are life- threatening. 2 We note that in its final decision, the Agency makes reference to an attachment to the formal complaint, wherein Complainant makes brief “bullet” type descriptions of retaliation ((a) - (k)) and harassment ((a) - (j)). However, the Agency does not expressly elucidate these matters further in the final decision. Given our disposition of this case, we also will not separately identify them as well, and consider that the Agency will pursue these matters further upon remand. 2021002947 3 In addition, I have repeatedly advised ORM of medical complications and needing assistance /accommodations with processing of my EEO case in which I was met with aggression regarding time restrains rather than assistance or guidance that I still have yet to receive.” ANALYSIS AND FINDINGS Failure to state a claim 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). As a threshold matter, the Commission does not have jurisdiction over reprisal for whistleblowing unless it involves claims of employment discrimination. 29 C.F.R. §§ 1614.103, .106(a). We agree with the Agency’s dismissal of Complainant’s reprisal claim to the extent it regarded whistleblowing. Moreover, to the extent Complainant alleged she was denied rights due to her status as a veteran, she has failed to state a claim under that basis. The Commission has repeatedly held that veteran preference or status is not a protected basis for filing an EEO complaint and therefore such complaints are not within the purview of EEOC regulations. See Devereux v. U.S. Postal Service, EEOC Request No. 05960869 (April 24, 1997). However, we find that the Agency improperly dismissed the formal complaint for failure to state a claim in regard to the remaining bases. Contrary to the manner in which the formal complaint was identified in the final decision, the instant formal complaint and EEO Counselor’s Report reflect a more detailed series of alleged incidents. These incidents include various matters relating to Complainant purportedly being harassed by Agency management. As a remedy, Complainant requested that the harassment cease, to be provided to work in a safe work environment and reverse all adverse actions imposed against her. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS. Failure to Cooperate The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). 2021002947 4 It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994). Based on the unique facts of this case, the Commission determines that it is appropriate to reverse the Agency’s dismissal and remand the complaint for further processing. 29 C.F.R. 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under this authority, we find that this is an appropriate case to excuse Complainant’s failure to provide additional information to the EEO Specialist. Nevertheless, Complainant is expressly advised to cooperate in the further processing of these claims or face possible dismissal for failure to do so. Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ORDERED to take the following action: 1. Within 30 calendar days of the date of this decision is issued, the Agency shall re-submit its request for information to Complainant, giving her 15 calendar days to respond to its inquiries. 2. Thereafter, the Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled “Implementation of the Commission’s Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s notice that transmits the investigation file and notice of rights and 2) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from the complainant by the end of the election period. 2021002947 5 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). 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. 2021002947 6 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2021002947 7 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 August 3, 2021 Date