0120140307
03-21-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140307
Agency No. 200J03302013103831
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated September 16, 2013, dismissing his 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. and the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq. (Rehabilitation Act).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Services Representative at the Agency's Milwaukee Regional Office facility in Milwaukee, Wisconsin. On July 31, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability (anxiety and other unspecified disability) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On November 20, 2012, Complainant's Supervisor (S) told Complainant to redo three claims and asked to see Complainant in her office;
2. On December 13, 2012, Complainant was verbally counseled by S for speaking to a female coworker;
3. On May 28, 2013, an employee from Human Resources (HR) told Complainant to voluntarily repay sick leave Complainant had used the prior year after a near fatal suicide attempt by Complainant; and
4. On May 28, 2013, the Agency "would not accept an EEO grievance."
The Agency specifically listed only claims 2 and 3 in the FAD, but did address claims 1 and 4 in the body of the decision. Specifically, with regard to claims 1 and 4, the Agency dismissed the claims on the grounds that Complainant had previously filed the same claims under the negotiated grievance procedure. With regard to claims 2 and 3, the Agency found that the actions complained of were insufficiently severe to state a claim of harassment.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.107(a)(4), the Agency shall dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination and the record shows that the complainant has elected to pursue the non-EEO process. The record shows that on November 27, 2012, S issued Complainant a proposed reprimand for the November 20, 2012 incident related to claim 1 when S told Complainant to make changes to three claims and Complainant allegedly refused and also refused to come into S's office when told. The record further shows that the proposed reprimand merged with a letter of reprimand issued on February 26, 2013. On March 27, 2013, Complainant grieved the matter under the negotiated grievance procedure, while he did not file an EEO complaint on the matter until July 31, 2013. Thus, with regard to claim 1, the record shows that Complainant first selected the grievance procedure and hence he may not now seek to raise the same matter under the EEO system.
Complainant argues that he did not raise issues of discrimination when he filed his grievance and hence the claims are not the same. We note, however, that pursuant to 29 C.F.R. � 1614.301 "an aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter . . . irrespective of . . . whether the grievance has raised an issue of discrimination." Thus it matters not whether Complainant raised discrimination in his grievance, only that he could have raised discrimination. The Agency has submitted copies of the negotiated agreement showing that it does permit claims alleging discrimination. See Agency's Appeal Brief, Exhibit D.
With regard to claim 4, the record shows that on May 28, 2013, the Assistant Director responded to a second grievance filed by Complainant on May 15, 2013 by stating that Complainant had already filed a grievance on the same matter on March 27, 2013. The decision regarding whether or not to accept a grievance is not within the purview of this Commission. Rather, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise his challenges to any denial of his May 15, 2013 grievance is generally within that proceeding itself.
With regard to claims 2 and 3, the Agency found that the actions complained of were insufficiently severe or pervasive to state a claim of harassment. In considering whether any of the actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, 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." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
With regard to S's counseling of Complainant for speaking to a female coworker, we find such an action to not constitute part of the same overall claim of harassment as HR telling Complainant to pay back sick leave. The alleged harassment was carried out by different people and Complainant has presented no evidence, or even alleged, that S directed HR's actions. Furthermore, we find that S's actions were insufficiently severe to state a claim of harassment for the incident alleged in claim 2. Nor has Complainant shown he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
With regard to the incident raised in claim 3, however, we note that Complainant listed anxiety as one of his disabilities and he stated in his Formal Complaint that he had made a near fatal suicide attempt at work in the past. When he went to the Human Resources department, HR allegedly told Complainant to "voluntarily" pay back the sick leave he had used recuperating from this incident. Complainant said HR "has knowledge of Complainant's anxiety disability condition but choose to harass complainant . . . by bring [sic] up a year old event which complainant had no control over sick leave deducted." Following a review of the record we find that this is sufficient to state a claim of harassment based in disability. By suggesting Complainant pay back the sick leave, HR was belittling Complainant's psychiatric disability, a disability that almost took Complainant's life. We find such belittling of his disability to be both subjectively and objectively offensive to a reasonable person.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein: we find that with regard to claim 1, Complainant previously grieved the matter under the negotiated grievance process; with regard to claim 2, the claim constitutes a collateral attack against the negotiated grievance process; and with regard to claim 4, Complainant fails to state a claim. We further find, however, that with regard to claim 3, Complainant successfully states a claim of harassment based on disability. We therefore AFFIRM the FAD in party and REVERSE in part, and we REMAND claim 3 for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 21, 2014
__________________
Date
2
0120140307
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140307