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

Equal Employment Opportunity Commission

Nov 28, 2022

Appeal No. 2022004670 (E.E.O.C. Nov. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genny L,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022004670 Agency No. 200I-785-2022-146235 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 5, 2022, dismissing a formal complaint alleging 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 for the Agency as a Supervisory Human Resource Specialist in St. Louis, Missouri. On July 4, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American), sex (female), disability, and reprisal for prior protected EEO activity. On August 5, 2022, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: Whether Complainant was subjected to a hostile work environment as evidenced by the following events: 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 2022004670 1. From December 1, 2020 through July 31, 2021, Complainant was denied training as a Human Resource Specialist and not issued a performance appraisal for the position. 2. On or about July 31, 2021, Complainant was not notified that her position as Supervisor, Human Resources, Recruitment and Placement was probationary. 3. On January 10, 2021, Complainant received a delayed mid-year review, was rated fully successful by [a named Acting Human Resource Chief], and Agency officials failed to communicate objective standards. 4. Beginning October 1, 2021 to the present, [a named Human Capital Officer, has engaged in micro-aggression, made stereotypical remarks to Complainant such as “you are so articulate or you speak well”, “you smell good”, when asked about mentoring or assistance responses received were “fake it until you make it”, and that “we pay you a lot of money so you’re gonna have to figure it out.” 5. Beginning October 1, 2021 to the present, Complainant was not included on emails; was micromanaged; subjected to statements by [a named Agency official] “I told my mother to pray during this time I am talking to you”, and “I had to beg the previous Chief to rate you as ‘fully successful’” and condescending remarks made in front of subordinate employees. 6. Beginning on November 1, 2021 [a named Agency official] failed to respond to Complainant’s reasonable accommodation requests. 7. Beginning March 1, 2022, Complainant has been subjected to surveillance and micromanagement through interrogations related to Complainant’s whereabouts, performance, and knowledge of work assignments. 8. Beginning April 12, 2022, Complainant was subjected to an undisclosed investigation when she was accused of providing deficient leadership; and was accused of not being fully capable or performing her position, consistent with Agency policies. 9. On or about April 25, 2022, Complainant was disciplined, issued a demotion, effective May 9, 2022, without receiving a proposed notice of discipline and without a copy of the evidence file or a formal decision. 3 2022004670 10. On May 9, 2022, [an Agency official] rated Complainant as “unsuccessful” on her mid-year performance. 11. On June 27, 2022, and on June 28, 2022, [a named Agency official] threatened to charge Complainant Absence without Leave (AWOL). The Agency dismissed the formal complaint pursuant to 29 C.F.R. §1614.106(c) and 29 C.F.R. § 1614.107(a)(7). The Agency reasoned as follows in its dismissal letter addressed to Complainant’s representative: “[y]our client’s formal complaint was received on July 4, 2022. However, your client’s VA Form 4939 was blank, unsigned, and undated. Also, in a document attached to the VA form 4939, entitled “EEO Complaint” was not signed. On July 15, 2022, your client was asked to sign, date, and complete [her] VA Form 4939, with no response to date. The instant appeal followed. On appeal, Complainant’s representative requests that we reverse the Agency’s dismissal and remand the formal complaint. Complainant’s representative asserts that the complaint does not need to be filed on any particular form. Complainant’s representative states that he filed a complaint on Complainant’s behalf and notes that Complainant did not receive the Agency’s complaint form. Complainant’s representative also states that he sent an email to Complainant to complete and sign the form; however, Complainant also did not receive this email.2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(c) provides that a complaint must contain a signed statement from the person claiming to be the aggrieved, or the person’s attorney. Although the Agency received the instant formal complaint, the record reflects that the formal complaint was not signed by Complainant. However, equitable considerations require that the Agency allow Complainant the opportunity to cure the defect in the formal complaint. See Pineda v. U.S. Postal Serv., EEOC Appeal No. 01940017 (Dec. 29, 1993). The record reflects that Complainant’s representative sent a document entitled “EEO Complaint” to the Agency on July 4, 2022 via email. Complainant did not sign this document. We acknowledge that the Agency attempted to provide Complainant with an opportunity to sign the complaint and cure the defect. The record contains a copy of an email from the Agency’s Office of Resolution Management (ORM) dated July 5, 2022. The document reflects that it was sent via email to Complainant and her representative. Therein, ORM sets forth that Complainant’s unsigned complaint was received by the Agency on July 4, 2022. ORM further stated that it would not process the complaint because it was not signed by Complainant. 2 We note that Complainant’s representative statement on appeal does not include a formal complaint signed by Complainant. 4 2022004670 ORM further advised Complainant to sign and return her formal complaint within 15 days or her complaint may be dismissed pursuant to 29 C.F.R. § 1614.107(a)(7). The record is devoid of evidence, however, that Complainant received the Agency’s July 5, 2022 email advising her that her formal complaint may be dismissed if she did not sign and return her complaint to the Agency. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.3 ORDER The Agency is ORDERED to provide Complainant with the opportunity to cure the instant formal complaint as follows: Within thirty (30) calendar days from the date this decision is issued, the Agency shall notify Complainant (and ensure Complainant receives such notification) that she has 15 calendar days from receipt of the Agency’s notification to cure her formal complaint by reviewing the document and providing her signature on the document. Thereafter, the Agency shall have thirty (30) calendar days from the date of its receipt of Complainant’s response or from the deadline Complainant has to respond (if Complainant does not submit a response) to either issue a final decision dismissing the complaint, with appeal rights to the Commission, or to notify Complainant it is accepting her formal complaint. A copy of the Agency’s notification letter to Complainant requesting her signed complaint and either a copy of the Agency’s new final decision and or letter accepting Complainant’s complaint must be sent to the Commission as set forth in the paragraph below entitled “Implementation of the Commission’s Decision.” 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. 3 To the extent, Complainant is seeking to amend the instant complaint, Complainant should put her request in writing to the Agency’s (Department of Veterans Affairs) EEO Director. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5§ III(B). 5 2022004670 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 (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 6 2022004670 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 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. 7 2022004670 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 November 28, 2022 Date