[Redacted], Iesha P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2022000758 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iesha P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022000758 Agency No. 2004-0565-2021105482 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 27, 2021, 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 Registered Nurse at the Agency’s Medical Center in Fayetteville, North Carolina. Complainant reported that on August 19, 2021, the Interim Assistant Chief of Care (Chief) sent an email addressed to her to the patient alignment coordinator group which stated that Complainant suffered from cognizant dissonance. See Report of Investigation (ROI) at 1. Complainant reported that the email was sent to "put her in her place" and that the Chief also called her stupid. Id. The August 19, 2021, email is of record. There are at least six individual recipients listed, as well as one electronic mailing list. In the email, the Chief stated, "there seems to be some cognitive dissonance here…" and then proceeded to clarify a work circumstance. ROI at 32. 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. 2022000758 2 On October 9, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when: 1. On August 19, 2021, the Chief sent an email noting that Complainant had some cognizant dissonance. The Agency dismissed complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency contended that Complainant’s allegations were insufficiently severe and insufficiently pervasive to rise to the level of harassment. CONTENTIONS ON APPEAL On appeal, Complainant argues that while the humiliating and offensive email event occurred only once, it was distributed and forwarded to more than just her supervisor and the Chief. She also notes that the conduct was written, which is more permanent and pervasive than an oral utterance. Additionally, she contends that the email profoundly interfered with her ability to be taken professionally and competently in her work, assessments, and communication with peers. The Agency did not respond to Complainant's arguments on appeal. ANALYSIS AND FINDINGS 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 or disabling condition. 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 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 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. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only 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. 2022000758 3 Following a review of the record, we find that the action alleged by Complainant does not rise to this level. We note that Complainant has not shown that the email constituted a harm or loss with respect to a term, condition, or privilege of employment. Furthermore, the email was not sufficiently severe or pervasive to state a claim of harassment. The Commission has repeatedly found that isolated remarks or comments, unless particularly severe or accompanied by a concrete agency action, are not a direct and personal deprivation sufficient to render an individual aggrieved for the purposes of Title VII. See Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Serv., EEOC Request No. 05940695 (Feb. 9, 1995). Moreover, while Complainant alleges that the action was humiliating and offensive, we note that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. U.S. Postal Serv., EEOC Appeal No. 01933846 (Mar. 11, 1994). Therefore, the Agency properly dismissed the claim for failure to state a claim. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 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 2022000758 4 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 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. 2022000758 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 April 20, 2022 Date