Yessenia H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 10, 2019

2020000139 (E.E.O.C. Dec. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yessenia H.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000139 Agency No. 200H-0539-2019103550 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision, dated August 26, 2019, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Public Affairs Specialist, 1035, GS 12 at the Agency’s Veterans Affairs Medical Center in Cincinnati, Ohio. On August 13, 2019, Complainant filed a formal complaint claiming that the Agency discriminated against her based on her disability. In its August 26, 2019 final decision, the Agency summarized Complainant’s formal complaint as a harassment claim consisting of two allegations which it identified in the following manner: 1. on May 6, 2019, a Supervisor Public Affairs Specialist (MS) rated Complainant “Needs Improvement to be Fully Successful or Better” on Complainant’s mid-year performance review; and 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. 2020000139 2 2. on May 14, 2019, MS told Complainant, “You are a GS-12 and you should know what to do,” and “Don’t you know how to answer these questions?” after Complainant requested guidance from MS. The Agency dismissed the formal complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the alleged incidents were not sufficiently severe or pervasive enough to set forth an actionable claim of harassment. On appeal, Complainant, through counsel, argues that the Agency mischaracterized her allegations in her formal complaint.2 Specifically, Complainant denies that she raised allegation 2 in her formal complaint as the Agency contends. Complainant explains that after she filed an EEO complaint on, May 17, 2019,3 she had a meeting with S1, Human Resources, and the union representative, on May 21, 2019, to discuss her mid-year performance review. Complainant alleges that during this meeting, S1 stated that he had an “issue” with providing Complainant a reasonable accommodation.4 Complainant further alleges that she amended her EEO complaint to include this incident. However, the Agency failed to include and analyze this claim in its final decision.5 Complainant further argues that the Agency improperly dismissed her formal complaint during the period that she was waiting for an Alternative Dispute Resolution (“ADR”) to be re- scheduled. Therefore, Complainant requests that the Commission vacate the Agency’s August 26, 2019 decision, provide Complainant with an ADR meeting, provide Complainant with a reasonable accommodation, and rescind her 6-month mid-year performance review. 2 Complainant’s appeal brief incorrectly identifies the subject complaint as Agency No. 200H- HV102-02016-103363. We note that the Commission has already adjudicated Agency No. 200H-HV102-02016-103363. See Genie Y. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120172775 (Feb. 6, 2019). 3 Our review of the record indicates that Complainant filed her formal complaint on August 13, 2019. Our review further indicates that May 17, 2019 is listed on Complainant’s formal complaint as the date she initiated EEO Counselor contact. However, a copy of the EEO Counselor’s report indicates that Complainant initiated contact on May 14, 2019. 4 Complainant asserts that her reasonable accommodation at issue requires that S1 provide her with written instructions. 5 Our review of record does not include an amended formal complaint from Complainant. Our review of the EEO Counselor’s report reflects that Complainant alleged two allegations which are defined in the same manner as stated in the Agency’s August 26, 2019 final decision. 2020000139 3 ANALYSIS AND FINDINGS Preliminary Matter - Claim at Issue Our review indicates that Complainant’s formal complaint is better characterized as a denial of a reasonable accommodation. At the onset, we acknowledge that the formal complaint does not list the claim or date of the alleged incident at issue.6 We further acknowledge that an August 13, 2019 email from Complainant accompanying the formal complaint indicates that six attachments in support of Complainant’s claim. However, not all attachments are provided with the formal complaint.7 Nevertheless, we find that an examination of the two attachments accompanied with the formal complaint, as well as consideration of the remedies Complainant seeks on her formal complaint, collectively support that Complainant has alleged that she was discriminated against based on disability when the Agency failed to provided her with a reasonable accommodation which resulted in S1 rating her as “Needs Improvement to be Fully Successful or Better” on her May 6, 2019 mid-year performance review. The first attachment is a March 2, 2017 approval of a reasonable accommodation request. The document indicates, in pertinent part, that Complainant requested that S1 “provide written/verbal instructions and/or assignments weekly.” The second attachment is a copy of Complainant’s May 6, 2019 mid-year performance review indicating that she received a “Needs Improvement to be Fully Successful or Better” rating. For requested remedies, Complainant indicates, in pertinent part, on her formal complaint, that “[she] want[s] [her] reasonable accommodations provided.” For these reasons, we find that Complainant alleges in her formal complaint that she was discriminated against based on her disability when management denied her a reasonable accommodation. 6 We note that the articulation of the claims at issue in the formal complaint are somewhat cryptic as we further note in our analysis. For example, the words “see attached” are written on the formal complaint fields indicating what claims are at issue (box 9) and the dates of the claims (box 10). 7 The email indicates that the following documents are attached: “EEO Complaint Description of Claims .pages;” “[Complainant]-Perf-Appraisal-Program-2019-08-09-130542258.pdf;” “[Complainant]-08-13-2019.pdf;”“[Complainant] 20170302-Reasonable-accommodations.pdf;” “[Complainant]-08-13-2019-Flnal.pdf;” and “[Complainant] NORR (002).docx.” 2020000139 4 Agency’s Dismissal - 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). As an initial matter, we acknowledge that Complainant's mid-year performance evaluation was a proposal or preliminary step to take a personnel action. The Commission has held that a periodic progress review with no permanent effect does not create a personal harm. See Jackson v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23, 1994). However, a fair reading of Complainant’s formal complaint, as discussed above, as well as Complainant’s statements on appeal, indicate that the matter at issue is not the issuance of a mid-year evaluation per se. Instead, the underlying claim at issue involves an allegation of a denial of a reasonable accommodation which resulted in Complainant receiving the “Needs Improvement to be Fully Successful or Better” rating on her mid-year performance review. Thus, Complainant’s claim that the Agency denied her a reasonable accommodation is the central issue in this case. Complainant references, on appeal, a May 21, 2019 meeting regarding her mid-year performance review where Complainant alleges that S1 indicated that he had an “issue” with providing Complainant a reasonable accommodation. We note that the record includes a Report of Contact, dated May 21, 2019, summarizing this alleged incident. In the report, Complainant alleges S1 stated, verbally and through his body language, that “he could write standard performance elements that would ensure [Complainant] would receive an unacceptable and not fully successful performance appraisal rating.” Complainant also alleges that S1 stated during the meeting that he “did not like that he has had to provide reasonable accommodations to [her] for the past three years through his verbal and non-verbal body language.” Complainant explains in the report that she “has a reasonable accommodation for written instructions” and she alleges that S1 failed to provide her written instructions when he gave her verbal feedback on her performance. Complainant further explains that S1 provided her with a three-ring binder of information (emails, documented examples) to support her mid-year rating, however, Complainant contends that the examples provided in the binder were not identified as whether they were appropriate or inappropriate examples of critical aspects of her job. Therefore, we find that the instant complaint, as defined as a denial of a reasonable accommodation, states a claim. Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. Regarding allegation 2 as discussed in the Agency’s final decision, we find that this was not intended as an independent claim but rather as part of Complainant’s denial of reasonable accommodation claim. 2020000139 5 Accordingly, we REVERSE the Agency’s dismissal of the formal complaint for failure to state a claim, defined herein as a denial of reasonable accommodation, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claim (denial of reasonable accommodation) 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 letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) 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 complainant by the end of the election period. 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. 2020000139 6 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 (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020000139 7 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. 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 December 10, 2019 Date