Nicki B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 26, 2019

0120180551 (E.E.O.C. Mar. 26, 2019)

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.
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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.
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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).

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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.

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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.
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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