[Redacted], Tera B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2021004449 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tera B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2021004449 Agency No. 2001-0316-2021103593 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated July 2, 2021, dismissing her 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Financial Administrative Specialist, GS 9, at the Agency’s facility in Decatur, Georgia. On June 4, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African- American). The Agency, in its decision, framed the claims as follows: 1. A claim for harassment dating back to 2013, including false allegations/written statements against her and accusations of actions unbecoming a government employee, and a Privacy Act violation on April 13, 2021 when a co-worker (C1) obtained her personal address without authorization. 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. 2021004449 2 2. Complainant was subjected to a hostile work environment when on April 13, 2021, C1 mailed Complainant a card with an image of a monkey with big red lips.2 In its July 2, 2021 decision, the Agency dismissed the complaint in its entirety.3 The Privacy Act portion of claim 1 was dismissed for failure to state a claim, with the Agency finding that the matter was outside of the EEOC’s jurisdiction. The remainder of claim (1) was dismissed for untimely counselor contact. The Agency reasoned that Complainant did not pursue her claims of ongoing harassment, dating back to 2013, with due diligence and therefore the doctrine of laches was applicable. Regarding claim 2, the Agency determined that the single April 13, 2021 incident was not sufficiently severe or pervasive to state a claim of harassment. The instant appeal followed. On appeal, Complainant seeks to have the Agency’s dismissal of her complaint reversed. Complainant contends she has been subjected to constant harassment by C1 and other co- workers, which has continued without any action by management. The Agency opposes the appeal, arguing Complainant has not raised viable arguments indicating the Agency’s decision was factually or legally incorrect. The Agency reiterates that the claims were properly dismissed for untimeliness and for failure to state a claim. 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 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 (Apr. 21, 1994). We first examine the portion of claim 1 wherein Complainant alleges a Privacy Act violation. The Privacy Act, 5 U.S.C. § 552(g)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the provisions of the Privacy Act. Bucci v. Dep’t of Educ., EEOC Request Nos. 05890289, 05890290, 05890291 2 The Agency, without numbering the claims, described claim (1) as a recitation of the statement presented in the formal complaint. Claim (2) was defined and included by the Agency as a result of its review of the EEO Counselor’s Report. 3 While the Agency decision also found the complaint did not state a claim of reprisal, we note that the record does not reflect that Complainant has raised reprisal as a basis. 2021004449 3 (Apr. 12, 1989). Therefore, we find that Complainant’s allegation, that a coworker violated the Privacy Act when he obtained her home address, was properly dismissed for lack of jurisdiction. With regard to the remainder of claim 1, we find that Complainant’s broad and vague reference to harassment, stemming back to 2013, was not raised with the EEO Counselor. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). Complainant’s undefined assertion she was subjected to “harassment” and falsely accused of “conduct unbecoming a government employee”, are not like or related to the April 13, 2021 greeting card incident raised in EEO counseling. Therefore, we find that claim 1 was properly dismissed by the Agency.4 In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. 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 a complainant's employment. The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. In claim 2, Complainant alleges that she was subjected to harassment when she received an offensive card from C1, at her home, bearing the image of a sock monkey wearing a nurse’s uniform. We find that the claim was properly dismissed for failure to state a claim. While we acknowledge that the choice of card was odd, in poor taste, and that Complainant found it subjectively offensive, we do not find it is sufficient to state a claim of harassment. We note that claims of a few isolated incidents of alleged harassment usually are not sufficient to state a claim of a hostile work environment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Obas v. Dep’t of Justice, EEOC Appeal No. 01A04389 (May 16, 2002). 4 In light of our disposition, we shall not consider whether the claim was also properly dismissed under the doctrine of laches. 2021004449 4 Moreover, the record does not indicate that the image on the card, of a sock monkey, was intended to refer to Complainant or that she had been called a monkey, in contrast to cases where coworkers directly referred to a complainant as a monkey and the Commission found a claim of harassment was presented. Compare Doug F. v. Dep’t of the Navy, EEOC Appeal No. 2019003863 (Sept. 25, 2019)(finding the agency improperly dismissed a harassment claim where the complainant was compared to a monkey twice and a stuffed animal monkey was placed on his desk); Pollard v. Dep’t of the Navy, EEOC Appeal No. 0120131889 (Aug. 7, 2013) (reversing the agency’s dismissal for failure to state a claim where complainant was directly called a monkey); Almon v. U.S. Postal Serv., EEOC Appeal No. 0720090023 (Feb. 9, 2011) (racial hostility from coworkers shown when evidence revealed that coworkers called complainant a monkey). Here, Complainant has not alleged more than the single, isolated incident of having received a greeting card with the photo of a sock monkey. Therefore, we agree that claim 2 is not sufficiently severe or pervasive to state a claim of unlawful, discriminatory harassment. See Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997); see also, Rob W. v. Dep’t of State, EEOC Appeal No. 2021002305 (June 17, 2021) (finding an incident involving a picture of a monkey smoking a cigar and an underwear advertisement featuring Pete Rose with multiple bats in his hand was not sufficiently severe or pervasive to state a claim of harassment). CONCLUSION Therefore, for the reasons stated above, the Agency’s final decision dismissing the 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). 2021004449 5 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 (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. 2021004449 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 November 15, 2021 Date