Doris F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 7, 2019

2019001600 (E.E.O.C. Jun. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Doris F.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 2019001600

Agency No. 200I702C2018106232

DECISION

Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's November 28, 2018 dismissal of her complaint of unlawful
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health Science
Specialist, GS-11, at the Veteran’s Crisis Line facility in Atlanta, Georgia.

On October 19, 2018, Complainant filed a formal complaint alleging that she had been subjected
to a hostile work environment and harassment on the basis of age (59 or 60) when:

1. On October 16, 2017, a Night Supervisor (“NS”) got in Complainant’s personal
space, made inappropriate facial and hand gestures, and spoke to her in an
inappropriate manner in front of her peers,

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.

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2. On January 7, 2018, NS spoke to Complainant in a condescending manner when
she requested irrelevant information before responding to Complainant’s question
about accessing medical records regarding homicidal ideations,

3. On January 14, 2018, NS called Complainant to her desk and sent an email to
Complainant’s Supervisor, criticizing Complainant’s use of punctuation and
abbreviations in an instant message,

4. In February 2018, NS questioned Complainant about an EMS rescue that was
clearly documented, and admitted to listening to her telephone calls,

5. On April 14, 2018, NS was condescending and intimidating in her communication
about an Outlook appointment for a new CRM system, as Complainant was
asking questions and not getting support,2

6. On September 7, 2018, NS sent Complainant an instant message stating that she
might have to log off of an on-line training course, if she was not pre-registered,
and,

7. On September 9, 2018, NS advised Complainant in public and without
representation that disciplinary action was going to be taken against her.

Complainant’s immediate supervisor (“S1”) was a Supervisory Health Specialist. However,
because Complainant worked the night shift, she also reported to the Supervisory Health
Specialists assigned to the night shift, including NS. Complainant alleges that NS, who she
believes to be in her 30s, speaks to older employees in a condescending manner, and fosters a
“work environment [which] is that of a younger clique.” Complainant alleges that NS singled
her out for humiliation by criticizing her in front of her peers (Claims 1, 2, 3, and 7). For
instance, regarding Claim 3, Complainant alleges that NS “called [Complainant] to her desk in
the presence of others; displayed negative body language; and spoke to [her] in an accusatory
and confrontational manner.”

In February 2018, Complainant met with NS and S1, regarding the alleged harassment. Among
other things, Complainant asked NS to speak with her in private rather than criticize her in front
of her colleagues. However, Complainant alleges that NS continued to single her out by denying
support (Claim 5), monitoring one of her phone calls (Claim 4), causing her to needlessly log off
training (Claim 6), and publicly threatening to write her up for actions she denies (Claim 7).
Regarding Claim 7, Complainant did not receive a copy of the write up, but the incident instilled
fear that NS would follow through with her threat. According to Complainant, NS sent an email
that “made it appear that [Complainant] was leaving Veterans at risk, that [she] was defensive
and aggressive.” Complainant initiated the instant complaint.

2 The issue in Claim 5 was not identified in the Agency’s final decision, however it was included
in Complainant’s Formal Complaint, and in the EEO Counselor’s Report.
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The Agency dismissed Complainant’s complaint for failure to state a claim, pursuant to 29
C.F.R. § 1614.107(a)(1).

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 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). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim.
29 C.F.R. § 1614.107(a)(1).

The Commission has held that where, as here, a complaint does not challenge an agency action
or inaction regarding a specific term, condition, or privilege of employment, the claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the
conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
23 (1993). We find that Complainant’s allegations are insufficient to state a claim of a hostile
work environment, as they all describe “common workplace occurrences.”

Complainant’s allegations involve routine work assignments, instructions, and admonishments,
which are all “common workplace occurrences” that do not rise to the level of harassment. See
Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations
omitted. To the extent Complainant alleges that she was singled out by NS, for additional
questioning about her information requests, and monitoring her phone calls with veterans, we
have previously found similar claims, while unpleasant, are also “common workplace
occurrences.” See Gormley v. Dep’t of the Interior, EEOC Complaint No. 01973328 (Feb. 18,
2000); Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000) (A
supervisor questioning an employee with respect to their duties, even if done in a confrontational
manner, is a “common workplace occurrence.”)

On appeal, Complainant alleges additional instances of harassment, and identifies reprisal as an
additional basis for discrimination. Under Commission policy, a complainant is protected from
any retaliatory discrimination that is reasonably likely to deter… complainant or others from
engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No.
0120070788 (Mar. 29, 2007). However, Complainant did not include these new claims and basis
in her formal complaint, so they will not be adjudicated in this decision. If Complainant wishes
to pursue these new harassment and retaliation claims in an EEO complaint, she must contact an
EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC
Appeal No. 0120031342 (Apr. 24, 2003).

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CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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 (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
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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. 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

June 7, 2019
Date