Raylene B.,1 Complainant,v.Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 4, 2020

2020002808 (E.E.O.C. Aug. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raylene B.,1 Complainant, v. Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency. Appeal No. 2020002808 Agency No. DON-19-00183-04466 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 17, 2020, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse at the Agency’s Naval Medical Center in Portsmouth, Virginia. On May 9, 20192, Complainant initiated equal employment opportunity (EEO) contact alleging, since April 2018, the Agency subjected her to hostile work environment harassment on the bases of sex, national origin (Filipino), disability (Anxiety, Depression and Post Traumatic Stress Disorder) and reprisal for prior protected EEO activity (January 2018 complaint). In the pre- complaint, Complainant alleged that a supervising doctor (S1) slapped her hand; on November 14, 2018, S1 required Complainant to answer questions, which resulted in a proposed suspension in 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. 2 The parties disagree on the date of initial EEO contact. Complainant stated she initiated EEO contact on May 9, 2019 and the Agency stated June 13, 2019 at the earliest. 2020002808 2 April 2019; and, on July 10, 2019, the Board of Nurses informed Complainant that there was an investigation against her. On November 11, 2019, Complainant filed a formal EEO complaint alleging that the Agency subjected her to harassment on the bases of disability when: 1. about September 2017, S1 slapped Complainant’s hand and whispered “I don’t need your help” when Complainant attempted to assist S1 in putting together equipment, 2. on October 18, 2017, S1 waved Complainant away and stated “Go away, I don’t need your help” when Complainant tried to assist S1 in finding her lost car keys, 3. on October 25, 2017, S1 was rude to Complainant, tapped Complainant’s computer monitor very hard, and stated “This is how I want you to do it” when S1 thought Complainant failed to order a laboratory request, 4. about February 5, 2018, S1 snatched the supply key out of Complainant’s hand, and 5. beginning in 2018 and continuing, S1 asked Complainant what time she clocked-in. Further, Complainant alleged that the agency harassed her based on disability and reprisal for prior EEO activity when: 6. about June 6, 2018, management denied Complainant a detail assignment in the Civilian Expeditionary Workforce program, and 7. approximately April 26, 2019, management issued Complainant a Notice of Proposed Suspension. On February 17, 2020, the Agency issued a final decision dismissing Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency summarized incidents (1) through (4) into one claim of alleged harassment by S1, did not address (5) and (6), and listed (7) as a claim. The instant appeal from Complainant followed. On appeal, Complainant stated that she alleged hostile work environment based on seven incidents, but the Agency did not include all seven. Complainant reiterated the incidents alleged in (5) and (6). The Agency responded that (7) is the only incident within the 45-day statutory timeframe to initiate EEO contact and, as a proposed action, it fails to state a claim. The Agency noted that S1 left the facility in August 2018, and that the remaining alleged incidents are not part of a continuing violation and are not severe or pervasive. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 2020002808 3 An agency shall accept a complaint from any 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, disabling condition, genetic information, or reprisal. 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 (April 21, 1994). Further, where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’. Finally, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC No. 915.004 at § II.B.1 (August 25, 2016); see also Carroll. The Commission has found that petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity, but that more significant retaliatory treatment could be challenged regardless of the level of harm. Id. After careful review of the record, we find that (1) through (5), alone or together, do not state an actionable claim of disparate treatment3, harassment4. However, we find that (6) and (7) each state a discrete claim of reprisal. (Complainant alleged the basis of reprisal for (6) and (7) only). Incident (7) is the only allegation that falls within the 45-day statutory timeframe for initial EEO contact articulated in EEOC Regulation 29 C.F.R. § 1614.105(a)(1). We find the remaining incidents and acts have not been shown to be part of the same unlawful practice or pattern of conduct as (7) and they occurred prior to March 25, 2019. Summarily, here, (7) is the only matter that states a claim of reprisal and for which Complainant initiated EEO contact in a timely manner. 3 See Diaz, supra. 4 See Harris, supra. 2020002808 4 CONCLUSION Accordingly, we REVERSE and REMAND the Agency's final decision dismissing Complainant's complaint as to (7) on the basis of reprisal only, and AFFIRM its dismissal as to (1) through (6). ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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). 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). 2020002808 5 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 (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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the 2020002808 6 Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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 August 4, 2020 Date