Zetta B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionOct 6, 20202020004625 (E.E.O.C. Oct. 6, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zetta B.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004625 Agency No. 200I-0626-2020104534 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 23, 2020, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Nurse Manager at the VA Medical Center in Nashville, Tennessee. Believing that she was subjected to a hostile work environment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. On July 13, 2020, Complainant filed a formal complaint based on age, race, and in reprisal for prior protected EEO activity. On July 23, 2020, the Agency issued the instant final decision. The Agency noted that during EEO counseling Complainant alleged that, on April 29, 2020, the Chief Nurse had a meeting with the Chief of Staff and during the meeting the Chief of Staff referred to Complainant in a “very 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. 2020004625 2 derogatory and highly inappropriate” manner. In addition to this claim, the formal complaint also alleged that while working in the GI Lab, a doctor (hereinafter “Doctor-S”) had been “verbally abusive, aggressive, demeaning, controlling and intimidating.” The Agency dismissed the complaint for failure to state a claim, reasoning that EEOC regulations are not a general civility code and the matters were too vague to state an actionable claim. Complainant filed the instant appeal. 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. 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). A review of the record reflects that with respect to the alleged comments by the Chief of Staff, Complainant was not present during the meeting. Instead, the Chief Nurse simply relayed to Complainant that the Chief of Staff had referred to Complainant in a “very derogatory and highly inappropriate manner”. The Chief Nurse never described what precisely was said. Further, the Agency stated that the Chief of Staff later apologized to Complainant for the comments. Regarding Doctor-S, the record contains a lengthy email from Complainant to the EEO Counselor. The email, however, still lacks sufficient detail to indicate that Complainant suffered a personal loss or harm to a term, condition or privilege of her employment. At most, the email explained that Complainant was told to wait on executing process changes she had planned. 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). The Agency’s dismissal of the complaint for failure to state a claim was proper. CONCLUSION Accordingly, the Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. 2020004625 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020004625 4 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 October 6, 2020 Date Copy with citationCopy as parenthetical citation