[Redacted], Christena H., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 21, 2022

Appeal No. 2022002839 (E.E.O.C. Jul. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christena H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022002839 Agency No. 2003-660-2022-144154 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 28, 2022, 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. BACKGROUND During the relevant time, Complainant worked as a Staff Assistant, GS-9, at the Agency’s Salt Lake City VA Medical Center in Salt Lake City, Utah. On February 24, 2022, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against her by harassing her when: 1. On January 20, 2000, the Chief, Volunteer Services stated to Complainant, “I can pushback your start date if I want…I just want to let you know, you stepped on some toes and if you plan to move up, this is not how you go about it.” 2. On January 20, 200, the Chief sent a message to the Assistant Chief, Volunteer Services stating, “[Complainant] just had to give some pushback, she never stays a minute passed 4:30 unless it’s a big event. I always try to be accommodating to any daycare or personal 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. 2022002839 2 issues she has. I always see her on her phone.” 3. On February 3, 2022, the Chief stated to Complainant, “Hopefully you can say that you completed all requested purchases on your performance appraisal.” 4. On February 3, 2022, the Chief assigned Complainant an unrealistic purchase order to complete before her departure to a new position. 5. On February 7, 2022, the Chief sent a message to the Assistant Chief stating that one of Complainant’s coworkers notified him that she (Complainant) was not happy and was uncomfortable communicating her concerns with him. 6. On February 23, 2022, the Chief rated Complainant fully successful on a summary rating. On March 28, 2022, the Agency issued the instant final decision. The Agency reasoned that Complainant has not engaged in protected activity on which to claim a basis of reprisal. Moreover, pre-complaint documents address the basis of “parental status,” which the Agency also determined was not a raised basis covered by the EEO statutes. Because the Agency determined that the sole bases raised were reprisal (non-EEO) and parental status, the Agency dismissed the formal complaint in its entirety. The instant appeal followed. The Agency states that “filing a non-EEO grievance with no allegations of employment discrimination does not constitute prior EEO activity.” ANALYSIS AND FINDINGS Here, Complainant has solely raised a claim of unlawful retaliation.2 To state a viable claim of unlawful retaliation in the EEO complaint process, an individual must initially assert they engaged in prior protected activity as defined by 29 C.F.R. § 1614.101(b). EEOC Regulation 29 C.F.R. § 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. On her formal complaint form, Complainant identified her protected activity as “Non-EEO”. An examination of the related EEO counseling materials does not explain this characterization or assert Complainant had previously engaged in protected activity as defined by 29 C.F.R. § 1614.101(b). However, on appeal Complainant states that she believed she was harassed 2 For the first time on appeal, Complainant suggests she may have been discriminated against because of her sex. However, she concedes she did not assert sex discrimination on her formal complaint form or raise it during EEO counseling. 2022002839 3 because she was leaving to take another position. Because Complainant had failed to specify any protected bases within the purview of the regulations under 29 C.F.R. § 1614.103(a), we find that her complaint fails to state a claim. See Bryant v. Dep’t of Justice, EEOC Request No. 05980273 (June 4, 1999) (when a complaint of reprisal fails to identify EEO or other protected activity under the anti- discrimination statues, the complaint is not within the purview of the administrative EEO complaint process and must be dismissed for failure to state a claim). Finally, to the extent that the formal complaint also raised the basis of parental status, we note that the Commission does not have jurisdiction over claims of parental status discrimination. Moran v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A10499 (Oct. 8, 2002). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 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, a complainant’s request to 2022002839 4 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 (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. 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. 2022002839 5 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 July 21, 2022 Date