Candice B,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 21, 2020

2020003183 (E.E.O.C. Sep. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candice B,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003183 Agency No. 200J-0610-2020101221 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 20, 2020, dismissing a formal 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 During the period at issue, Complainant worked as an Advanced Medical Support Assistant, GS- 6, at the Agency’s facility in Marion, Indiana. On February 28, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity. In its March 20, 2020 final decision, the Agency framed Complainant’s claims in the following fashion: 1. In October 2019, she was allowed official time off to prepare her prior EEO complaint (200J-0610-201903395) for only two hours at a time. 2. On October 23, 2019, her request for leave under the Family Medical Leave Act was initially approved, then changed, and then corrected. 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. 2 2020003183 3. Whether Complainant was subjected to a hostile work environment based on reprisal when a) from October 11, 2019 until she withdrew her request on January 23, 2020, her request for reasonable accommodation was neither provided nor processed with neutrality; and b) on November 18, 2019, she was shown a performance appraisal rating of “minimally satisfactory” which was provided with a rating of “fully successful” to her. only after raising concerns through the union. The Agency dismissed the formal complaint. Regarding claim (1), the Agency dismissed this matter for failure to state a claim, reasoning that Complainant has not shown a harm or loss with respect to a term, condition, or privilege of employment. The Agency also dismissed claim (1) on the alternate grounds for alleging dissatisfaction with the processing of a prior complaint. The Agency dismissed claim (2), finding that this matter was a collateral attack on the FMLA process and was not within the purview of the EEOC. The Agency also dismissed claim (2) on the grounds that it had been rendered moot. The Agency reasoned that all requests for leave were promptly correctly. The Agency dismissed claim (3) for failure to state a claim, reasoning that the alleged incidents were not sufficiently severe or pervasive to set forth an actionable claim of harassment. In addition, regarding the basis of reprisal, the Agency found in its final decision, that the alleged incidents were not reasonably likely to deter an individual from participating in protected activity. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision. Regarding claim (1), Complainant asserts that she was denied official time regarding the instant complaint (not a prior complaint). Regarding claim (2), Complainant asserts that she is not lodging a collateral attack on the FMLA process but that the Agency is not properly entering her attendance and leave. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. ANALYSIS AND FINDINGS Claim 1 The Agency improperly dismissed claim (1). Our regulations provide that employees shall have a reasonable amount of official time, if otherwise on duty, to prepare their complaints and respond to requests for information. See 29 C.F.R. § 1614.605(b). The Commission has the authority to remedy a violation of official time claims without a finding of discrimination. See Holefield v. United States Postal Serv., EEOC Appeal No. 0120023840 (Jan. 2, 2003); Edwards v. United States Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). In such cases, the Commission's focus is not the Agency's motivation, but whether Complainant was denied a reasonable amount of official time. Therefore, under 29 C.F.R. § 1614.605(b), Claim 1 states a justiciable claim. 3 2020003183 Complainant has alleged that she was not provided with a reasonable amount of official time with respect to the instant complaint. We therefore remand this matter to the Agency so they may investigate Complainant’s claim that she was denied a reasonable amount of official time in violation of 29 C.F.R. § 1614.605(b). Thereafter, the Agency shall issue a decision on the claim and provide appeal rights to the Commission. Claim 2 The Agency improperly dismissed claim (2) on the grounds that this matter was a collateral attack on the FMLA process. Complainant is challenging the Agency’s designation of charging her two hours of Absence Without Leave (AWOL) on a specified date. In addition, she alleges that the Agency did not properly code her absence. Thus, we find that the Complainant is challenging the Agency’s actions with respect to her leave rather than a Department of Labor determination. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120150340 (March 19, 2015) (reversing Agency’s dismissal for a collateral attack on the FMLA process when Complainant alleged that her leave was not coded as FMLA leave). We further find that the Agency improperly dismissed claim (2) on the grounds that this matter had been rendered moot. The regulation set forth at 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot. To determine whether the issues raised in complainant’s complaint are moot, the factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Dep’t of the Navy, EEOC Request No. 05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. We acknowledge that Complainant, on appeal, asserted that the AWOL charge was subsequently corrected. However, even if her leave was later adjusted, she may still be able to prove unlawful retaliation motivated the responsible Agency official to charge her AWOL in the first place. See Complainant v. U.S. Postal Service, EEOC Appeal No. 0120150340 (March 19, 2015) (reversing Agency’s dismissal of Complainant’s claim that she was charged AWOL on the grounds that it was rendered moot when the Agency adjusted the AWOL to paid leave). We further find that Complainant is alleging an ongoing hostile work environment based on reprisal comprised of numerous incidents as set forth below and that the matter set forth in claim (2) is part of that hostile work environment claim. Thus, we cannot find that there is no reasonable expectation that the alleged violation will recur. 4 2020003183 Claim 3 Finally, we find that the Agency improperly dismissed claim (3), Complainant’s hostile work environment claim. 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. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). In the instant matter, Complainant is alleging that she was subjected to an ongoing hostile work environment that included the Agency delaying in providing her with a reasonable accommodation, initially being charged AWOL, and initially receiving a minimally successful rating on her evaluation.2 We find that when viewing these incidents collectively, Complainant has set forth an actionable claim of harassment. In addition, we find, with respect to the basis of reprisal, that the alleged incidents are reasonably likely to deter Complainant or others from engaging in protected activity. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter the Agency for further processing in accordance with the Order below. ORDER The Agency shall take the following actions: 1. Regarding claim (1), within thirty (30) calendar days from the date this decision is issued, the Agency shall issue a written determination, with appeal rights to the Commission, on whether or not Complainant was denied a reasonable amount of 2 Complainant, on appeal, states that the rating was changed to Fully Successful after she got the union involved. We do not find that this matter has been rendered moot because it is part of Complainant’s ongoing hostile work environment claim and it cannot be said that there is no reasonable expectation that the alleged violation will recur. 5 2020003183 official time to work on EEO related matters. If Complainant was improperly denied official time, the Agency shall also determine if she took personal leave instead. If so, the Agency shall reimburse Complainant for any leave that she incurred. A copy of the Agency’s determination and reimbursement action (if applicable), shall be provided to the Commission as set forth below. 2. The Agency is ordered to process the remanded claims, claims (2) and (3) defined herein as a hostile work environment claim, 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). 6 2020003183 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 (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). 7 2020003183 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. 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 21, 2020 Date