Nicki B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 26, 20190120180551 (E.E.O.C. Mar. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120180551 Hearing No. 510-2015-00017X Agency No. 200I057320171018863 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 6, 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 License Practical Nurse at the Agency’s Malcolm Randall Medical Center facility in Gainesville, Florida. On February 28, 2014, Complainant contacted the EEO Counselor. On May 1, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to harassment on the bases of race (Black) and sex (female). In support of her claim, Complainant alleged that the following events occurred: 1. Since at least 2012, Complainant was constantly “micromanaged and second- guessed,” about how she performed her duties. 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. 0120180551 2 2. On or about August 9, 2012, the Nursing Supervisor1 and the Lead Nurse failed to take action after they were advised that Complainant was threatened with assault and referred to as a “Fucking Black Bitch.” 3. On May 23, 2013, the Health Chief and Nursing Supervisor2 failed to take proper action when they were informed that a resident/patient called Complainant a “Fucking Nigger.” When Complainant refused to remove the racial comment from the patient’s chart, she was accused of threatening the patient. As a result, Complainant became the subject of an administrative investigation. 4. On October 7, 2013, Complainant was issued a 10-day suspension, effective November 10-19, 2013. 5. On or about October 20 the Domiciliary Chief became hostile towards Complainant after she complained about being exposed to X-rated movies depicting sexually explicit scenes, violence, and vulgar language, which was show in the veteran’s movie theater located in front of her work area. Additionally, on October 30, 2013, when the matter was discussed during a staff meeting, the Domiciliary Chief yelled at Complainant and stated the veterans were over the age of 17, implying they could watch whatever they wanted. 6. On February 14, 2014, Complainant was accused of untruthfully documenting the status of a veteran’s whereabouts as unknown. 7. On February 14, 2014, the Domiciliary Chief accused Complainant of verbal, physical and mental abuse towards a patient. 8. On February 27, 2014, Complainant was detailed from the Domiciliary to the Medical Center pending the results of the fact finding investigation. 9. Since February 27, 2014 to May 1, 2014, Complainant has been ordered to clean, order supplies, answer the telephone, and perform other duties outside of her job description while detailed to the Medical Center. 10. On March 23, 2014, Complainant was issued a reprimand. 11. In February 2014, Complainant indicated that she saw a picture of a monkey, with the caption that stated, “the monkeys are running the zoo,” was posted near the office copy machine. The Agency accepted the complaint for investigation. During the investigation, Complainant provided an affidavit in support of her claim of harassment. Complainant indicated that she always tried to follow the rules and regulations. She asserted that management took issue with her request that others stand back to protect Privacy Act rules. 0120180551 3 Comments were made by management about Complainant’s violation of privacy laws. She argued that management watched over her while she gave medications to the residents and there were times she would not provide medication. She noted that the residents would complain about her. As a result, the Domiciliary Chief and Nursing Supervisor1 would talk loud to her and berate her. She was threatened by patients. However, nothing was done about it. She noted a racial comment that a patient had made to her in his chart. Management asked that she remove the comment and became upset with her for refusing to remove it. She noted that she was issued a suspension for filing a false report when she filed a police report with the Agency. She was detailed away from the workplace pending an internal investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency filed a motion for the AJ to dismiss the complaint pursuant to 29 C.F.R. § 1614.107(a)(4) for raising the same claim in a grievance procedure. The Agency provided the AJ with copies of three Step 3 Grievances, identified as Agency Grievance Numbers G-14-5958, G-14-6050, and G-14-6206. The Agency also provided a copy of its Collective Bargaining Agreement which indicated that employees could allege claims of discrimination within the grievance process. Finally, the Agency included a sworn statement from Complainant’s Union Representative, who represented her from November 2012 through November 2014. She stated that Complainant sought the union’s assistance in a variety of workplace issues. Some of the topics discussed were charges against Complainant for failure to follow instructions, filing a false charge with the Agency’s police department, the Agency’s request that Complainant remove a racial comment from a patient’s chart, and an accusation she threatened a patient, as well as her being subjected to an administrative investigation, and the fairness of that internal investigation. Complainant responded to the Agency’s motion. Complainant argued that the events alleged in the grievances were not the same events alleged in the EEO complaint. As such, she asserted that the EEO case should go forward. The AJ found that the Agency showed that the negotiated grievance procedure allows for claim of discrimination. The AJ noted that Complainant alleged 11 incidents. The events alleged in claims (2), (3), and (4) were clearly raised in the grievances filed. In addition, the AJ found that claim (10) was a reduction of her suspension to a reprimand which was a result of the grievance. Claims (6), (7), (8) and (9) were part of the grievances noting that Complainant was issued a suspension, subjected to an investigation for a false police report, and issues of privacy violations. The Union Representative averred that she provided Complainant with representation in her grievances. In the affidavit, she indicated that the grievances addressed Complainant’s claims (2) – (10), including threats made against Complainant by patients and other interactions with residents. She also addressed the Domiciliary Chief’s investigation into Complainant, her reassignment, and her assignment while she was under investigation. The AJ also determined that the claims alleged in Complainant’s claim of harassment (including claim 1) were inextricably intertwined with the matters raised in the grievances. As such, the AJ dismissed the EEO complaint pursuant to 29 C.F.R. § 1614.107(a)(4). 0120180551 4 The Agency implemented the AJ’s dismissal. This appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an AJ or agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination. EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. 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 under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination. Upon review of the record, we find that Complainant clearly alleged the events raised as claims (2), (3), (4), (5), (6), (7), (8), (9), and (10) in the prior grievance actions. These events involved complaints by management of Complainant’s actions involving her inclusion of information in patient records, an allegation of Complainant making a false claim with the Agency’s police office, an investigation into Complainant’s treatment of patients, and her assignment pending that internal investigation. Complainant did not raise these issues within the EEO process until she believed that the grievance procedure had not addressed her claims to her satisfaction. Allegation (1) appears to be a summary of the other claims adjudicated in Complainant’s grievances and does not appear suitable for independent adjudication. Finally, we find that claim (11), by itself, fails to state a claim of discriminatory harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. As such, we find that the AJ’s dismissal of the EEO complaint was appropriate. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action implementing the AJ’s decision dismissing the EEO complaint. 0120180551 5 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 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. 0120180551 6 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 March 26, 2019 Date Copy with citationCopy as parenthetical citation