[Redacted], Scott K, 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020004885 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott K,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004885 Agency No. 200P-0640-2020101994 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 3, 2020, dismissing his 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 At the time of events giving rise to this complaint, Complainant worked as a Project Manager, GS- 13, at the Agency’s VA Palo Alto Health Care System facility in Palo Alto, California. On May 8, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment/harassment on the bases of national origin (African) and color (Black) when: 1. On July 8, 2019, the Chief, Major Projects Section (Chief) yelled at Complainant over the phone, “I told you to come and open the door for me.” 2. On December 12, 2019, Chief yelled at Complainant for forcing project team members to complete tasks. 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. 2020004885 2 3. On January 8, 2020, Chief constantly interrupted Complainant during his presentation at a staff meeting. The Agency dismissed claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant asserts that his claim should not be dismissed because the Agency did not ask him for supporting documents or information. In support of his appeal, he submits several documents regarding the alleged harassment. He also asserts that his allegations give rise to a claim of disparate treatment in June 2020. In response, the Agency argues that these documents, “are nothing more than people checking in on the tasks assigned to [Complainant]” and Complainant’s allegations remain insufficient to support a claim. The Agency also argues that claim (1) that allegedly occurred on July 8, 2019 was not brought to an EEO Counselor within the applicable time frame. 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). Here, Complainant has submitted documentation regarding several alleged events. He has submitted a Report of Contact, dated December 12, 2019, regarding his supervisor yelling at him, and a witness statement indicating that he and others had experienced the same behavior from the supervisor; a Report of Contact, dated January 8, 2020, regarding his supervisor interrupting him during a meeting; emails in June 2020 addressing a project that Complainant alleges he was unfairly given a 6-day deadline to complete; emails, dated in April 2020, that Complainant alleges demonstrate unreasonable and unrealistic expectations; emails, dated in June 2020, that Complainant alleges demonstrate a lack of assistance, interference with work performance, and being deliberately set up for failure; and a Report of Contact, dated April 12, 2019, containing allegations that Complainant had been mocked/insulted by another employee in front of a supervisor and the incident was disregarded. 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. 2020004885 3 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’.” Upon review of the complete record in the light most favorable to the plaintiff, we find these allegations are insufficient to raise a claim of harassment.2 Complainant's allegations can generally be described as relating to personality conflicts, disagreements between a supervisor and a subordinate regarding how work should be performed or other routine managerial decisions, and/or being spoken to in a way Complainant found unpleasant. We conclude that these allegations, even if proven true, are insufficiently severe or pervasive to support a claim of discriminatory harassment that would amount to a violation of Title VII. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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. 2 Although Complainant, on appeal, asserts that his allegations include a claim of disparate treatment, we do not find a claim of disparate treatment is raised by these allegations. 2020004885 4 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. 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. 2020004885 5 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 February 2, 2021 Date