0120172511
12-20-2017
Cassey B.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cassey B.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120172511
Agency No. 200I05732017102511
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 30, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency's Veterans Health Administration facility in Gainesville, Florida.
On May 10, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on reprisal for prior protected EEO activity under Title VII when:
1. On March 27, 2017, her Supervisor denied Complainant official EEO time to prepare for her hearing;
2. On March 28, 2017, the Supervisor denied Complainant union time; and
3. On March 28, 2017, the Supervisor threatened to charge Complainant Absent Without Leave (AWOL) if she did not give up her union time.
The pertinent record shows that Complainant has prior EEO activity, which was known to her supervisor.2 In addition, Complainant is a Union Steward.
On March 27, 2017, Complainant's supervisor marked Complainant Absent Without Leave (AWOL) for taking EEO time to work on her own complainant, even though Complainant informed her supervisor of her need for EEO time.
On March 28, 2017, her supervisor told that Complainant that she could not use official time for her union duties and would be marked AWOL if she took union time.
Agency Decision
The Agency issued a final decision dismissing this complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant was alleging a violation of EEO Management Directive (MD) 110 and not a Title VII violation. Regarding issue 2, the Agency found that the Commission has no jurisdiction over the Union grievance process and therefore dismissed her claim regarding her supervisor denying her official time for Union duties. Regarding issue 3, the Agency found that Complainant was not aggrieved. The Agency reasoned that "issues concerning discussions, verbal warnings, reprimands or threats, without more, do not state claims of discrimination." This appeal followed.
CONTENTIONS ON APPEAL
Complainant did not file a timely brief in support of her appeal.
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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
A fair reading of the complaint revealed that Complainant was alleging that she had been subjected to a series of related incidents of retaliatory harassment due to her prior EEO activity. She was not alleging a violation of MD 110. She was alleging that the Agency denied her time to work on her own EEO complaint as an act of retaliation and denied her union time and threatened her for the same reason. See Matt B. v. Dep't of the Army, EEOC Appeal No. 0120161336 (May 11, 2016) (the Agency improperly distilled the matters raised in Complainant's formal complaint into a single occurrence when a fair reading of the pre-complaint and formal complaint documents showed that Complainant's complaint addressed a variety of incidents which were sufficient to state a viable claim of discriminatory harassment.). We find that she has stated a claim of retaliation. Also See Samuel R. v. U.S. Postal Serv., EEOC Appeal No. 0120161250 (May 27, 2016) (Commission reversed dismissal of complaint alleging retaliation for union activity).
In this case, Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Upon review, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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 tends 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. 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 20, 2017
__________________
Date
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 On April 14, 2016, we reversed the Agency's dismissal of an earlier complaint in EEOC Appeal 0120160920. We remanded the matter. Our records show that on February 16, 2017, the assigned EEOC Compliance Officer provided the Agency with a list of remedial actions and orders that needed to be implemented and asked for a report of the actions that had been done.
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