[Redacted], Sulema B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2021002728 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sulema B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021002728 Agency No. 200P-0463-202010450 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 5, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Shuttle Coordinator, GS-6, at the Agency’s Medical Center in Anchorage, Alaska. On December 14, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment in the form of a hostile work environment on the basis of sex (female) when: 1. On May 22, 2020, Complainant’s coworker (Coworker) shared with her his personal medical information on why he was not able to drive; 2. On September 1, 2020, Coworker questioned Complainant on where his keys were, stating, “you were here when I put them up last night” and he accused Complainant of planting his keys in the van; 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. 2021002728 2 3. On September 9, 2020, Coworker told Complainant he would be out of her hair, he was getting a big settlement and retiring; and 4. On September 17, 2020, Coworker shared with Complainant his personal medical information on why he might not be able to drive and negative comments about another coworker and the repair shop, and he slammed a metal box on a desk. The Agency dismissed these claims pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a claim. Complainant filed the instant appeal. On appeal, Complainant contends the Agency failed to take into account other incidents which she raised in counseling. She states the behavior she has experienced should not be disregarded as a non-hostile work environment. The Agency first contends that this appeal should be dismissed for untimely filing. In the alternative, the Agency asserts it correctly dismissed the complaint for failure to state a claim. ANALYSIS AND FINDINGS Timeliness of Appeal The regulation set forth at 29 C.F.R. § 1614.402(a) provides, in pertinent part, that appeals must be filed within 30 days of receipt of dismissal. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (January 14, 1993)), the Commission stated “the agency has the burden of proving evidence and/or proof to support its final decisions,” see also Gens v. Dep’t of Defense, EEOC Request No. 05910837 (January 31, 1992). The record shows that the Agency's final decision was dated February 5, 2021, and the Agency emailed Complainant on February 8, 2021, to let her know the final decision was available for her to view on Box.com. (Complaint File, pp. 60-61). In support of its contention that Complainant received the final decision on February 8, 2021, the Agency states “[t]he facts show that the Agency notified Appellant via email on February 8, 2021 that its dismissal letter was available to her on Box.com. The Agency had sent previous correspondence to Appellant via Box.com and it was received by her the same day it was sent.” (Agency Appeal Brief, p. 3). However, the Agency provided no actual evidence or proof to show when the email about the final decision was actually received by Complainant or when she actually viewed the final decision. Therefore, Complainant’s appeal will be deemed timely. 2021002728 3 Dismissal of Complaint for 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). 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). 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’.” 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). When examining the incidents alleged in the formal complaint and raised during EEO counseling together and taking them to be true, we do not find that Complainant has alleged events that are sufficiently severe or pervasive to state a claim of unlawful, discriminatory harassment. See Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997). The alleged incidents were isolated in nature and appears to be of a type that typically arise out of ordinary workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). While the allegations of Coworker’s oversharing of personal information, accusing others of actions they did not take, and slamming a box on a desk may have made Complainant uncomfortable, this behavior, even if proven, does not rise to the level necessary to sustain a claim for hostile work environment. Thus, the Agency correctly dismissed the complaint. 2021002728 4 CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 2021002728 5 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 (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 September 2, 2021 Date Copy with citationCopy as parenthetical citation