Leigh K.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 6, 2020

2020004104 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leigh K.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004104 Agency No. 200I-0548-2020103547 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 16, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Peer Support Specialist, GS-9, at the Agency’s West Palm Beach VA Medical Center in West Palm Beach, Florida. On May 11, 2020, Complainant filed a formal EEO complaint. As summarized by the Agency, Complainant’s formal Complainant consisted of the following claims: 1. Complainant was subjected to a hostile work environment based on reprisal for protected EEO activity (prior EEO complaint) when, on April 17, 2020, Complainant’s supervisor (“S1”) sent information to Human Resources stating 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. 2020004104 2 that Complainant was a gang member, was intimidating, visited S1’s community, and S1 threatened to have Complainant investigated/terminated; and 2. Complainant was discriminated against based on race, sex, color, disability (service-connected) when on November 20, 2019, Complainant received an unsuccessful performance evaluation rating. On June 16, 2020, the Agency issued a final decision. First, the Agency determined that that veteran’s status is not a legal basis of discrimination within the purview of EEO law and regulations. Therefore, the Agency determined that Complainant’s service-connected disability was not a covered basis for discrimination and dismissed his disability claim. In addition, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved, and the alleged incident was not sufficiently severe or pervasive to support an actionable harassment claim. Second, the Agency dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant raised the same claim (the November 20, 2019 performance evaluation rating) in a prior complaint. The instant appeal followed. On appeal, Complainant argues that he was subjected to a hostile work environment based on race, color, age, disability, and in reprisal for prior protected EEO activity. Complainant further argues that S1 “continued to harass and subject me to repeated harassment and intimidation based solely on the protected classes provided - race, color, age, disability, and reprisal.” Complainant also states that S1 “always intimidates me during our meetings . . .” (emphasis in original). ANALYSIS AND FINDINGS Service-connected Disability The regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106 require an Agency to accept a complaint from an aggrieved employee or applicant who believes that he has been discriminated against because of race, color, religion, sex, national origin, age, disabling condition, or reprisal for prior EEO activities. See also, Odoski v. Dep’t of Energy, EEOC Appeal No. 0119901496 (Apr. 16, 1990). An agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1). To successfully state a claim, a complaint must identify an alleged basis of discrimination (i.e. race, sex, age, national origin, color, religion, disability, and reprisal for prior EEO activity) within the purview of EEO law and regulations. If a complaint fails to clearly identify a covered basis within our jurisdictional purview, then it must be dismissed. See Emmanuel L. v. Dep’t of the Air Force, EEOC Appeal No. 0120171680 (Jul. 11, 2017). 2020004104 3 Here, our review of the record indicates that Complainant articulated various covered EEO bases for discrimination in the instant complaint. The formal complaint indicates that Complainant raised race, color, sex, age, disability, and reprisal as bases for discrimination. These bases fall clearly within the purview of the EEOC regulations. Regarding the basis of disability, we note that Complainant indicated in his formal complaint that he had depression and Post Traumatic Stress Disorder (“PTSD”). Either condition that would entitle him to the protections of the Rehabilitation Act as an individual with a disability regardless of whether or not the disabling conditions were related to his military service. Therefore, we reverse the Agency’s dismissal of Complainant’s disability claim. Prior Complaint EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency indicates in its final decision that Complainant filed a prior complaint identified as EEOC Complaint No. 200I-0548-2020100966, which was administratively closed on March 14, 2020, after Complainant did not file a formal complaint on that matter.2 The Agency indicates that EEOC Complaint No. 200I-0548-2020100966 was related to Complainant’s November 20, 2019 unsuccessful performance evaluation. However, there is no copy of the prior complaint in the record to support the Agency’s claim that the instant complaint (the November 2019 performance evaluation) was previously raised. Absent this documentation, we find there is insufficient documentation to support that Complainant had previously raised the matter of his November 2019 performance evaluation. Therefore, we reverse the Agency’s dismissal of the performance appraisal allegation raised in the instant complaint. Failure to State a Claim - Harassment (claim 1) 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). 2 On his current formal complaint form, Complainant indicates that he filed a prior EEO complaint in November 2019, identified as “Case# 100966.” He includes this reference in support of his current claim that S1 was retaliating against him with the actions identified in claim 1 for raising this prior complaint. The EEO Counselor’s Report does not provide detail regarding the subject matter of Complainant’s prior EEO complaint. 2020004104 4 Claim 1 was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Our review of the record indicates that Complainant alleged that he was subjected to continued harassment. We note that section 9 of the formal complaint indicates that Complainant alleged “continued undue harassment in the work place.” On appeal, Complainant indicates that S1 continued to harass him and subject him to repeated harassment. Complainant also notes on appeal that S1’s alleged harassment has extended outside of the workplace and the gossip and lies about him being a gang member are damaging his reputation in the community as Complainant volunteers at an at-risk youth program. Therefore, the alleged incident stated in the formal complaint combined with the allegations stated on appeal state a claim and allege 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 (Apr. 21, 1994). CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint for the grounds discussed above. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims 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). 2020004104 5 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). 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. 2020004104 6 Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020004104 7 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 October 6, 2020 Date