Doris F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionJun 7, 20192019001600 (E.E.O.C. Jun. 7, 2019) Copy Citation 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. 2019001600 2 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. 2019001600 3 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). 2019001600 4 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 2019001600 5 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 Copy with citationCopy as parenthetical citation