Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 20, 2013

0120113887 (E.E.O.C. Aug. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120113887

Agency No. 200H-0542-2011101449

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated July
20, 2011, dismissing her complaint of unlawful employment discrimination in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq. Upon review, the Commission finds that Complainant's complaint was improperly
dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Social Worker at
the Agency’s VA Medical Center in Coatesville, Pennsylvania. On March 8, 2011,
Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work
environment on the basis of age (69) when:

1. On March 24, 2008, the Social Work Executive (E1), instructed her to remove
the Juris Doctor (JD) degree from her title;

2. In March 2009, her caseload was tripled;

3. From June 9, 2009 to April 12, 2010, she was forced to wear earphones due to
the noise in the hallways;

4. On February 24, 2010, the Director of Geriatrics & Extended Care (D1) sent
her an inappropriate email message;

5. From February 2010 to January 3, 2011, due to the workload assignments, she
resigned from various Hospital-wide committees;
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6. On February 23, 2010, she was called “grossly inappropriate and
unprofessional,” by a colleague, and E1 failed to address the matter;

7. On April 26, 2010, she requested a transfer, and it was denied;

8. On July 14, 2010, D1 questioned her about a request she made to medical
records and when informed of the mistake, D1 did not acknowledge it;

9. On July 29, 2010, she requested assistance from the E1 with redesigning the
workload, and the issue was not addressed;

10. On December 28, 2010, she was questioned because she did not call D1
regarding a survey;

11. On February 2, 2011, due to union intervention, her initial rating of “Fully
Successful” on her performance appraisal was changed to “Excellent;”

12. On January 19, 2011, D1 questioned her about why they just found out about
lost clothes;

13. On January 19, 2011, D1 challenged her response about respite stay; and

14. On March 16, 2011, D1 sent an email message regarding Complainant’s
expectation that D1 co-sign her notes.

On July 20, 2011, the Agency issued a final decision dismissing the complaint. The Agency
dismissed claim (7) as a discrete act for untimely EEO counselor contact, but determined that
the claim could be considered as background evidence for Complainant’s overall hostile work
environment claim. In addition, the Agency dismissed claim (11) as a discrete act for failure
to state a claim. Finally, the Agency dismissed Complainant’s entire hostile work environment
claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency
reasoned that the alleged incidents were not sufficiently severe or pervasive to create a hostile
work environment. As a result, the Agency dismissed the complaint.

CONTENTIONS ON APPEAL
On appeal, Complainant argues that she has shown that she is aggrieved and suffered personal
and professional losses. For example, Complainant contends that she was forced to resign
from various committees due to her increased workload which negatively affected her upward
mobility. In addition, Complainant alleges that individuals’ defamatory remarks damaged her
reputation, affected her mental well-being for years, and forced her to seek counseling and take
emergency leave. Finally, Complainant contends that S1 assigned her an increased workload
while other co-workers were getting away with not doing their work. Accordingly,
Complainant requests that the Commission reverse the Agency’s dismissal.
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ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint
from an 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 (April 21, 1994). If
complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for
failure to state a claim. 29 C.F.R. § 1614.107(a)(1).

In the instant case, the Commission finds that Complainant has set forth matters that
sufficiently state a claim of a hostile work environment. The Commission notes that the
Agency separately dismissed claim (11) for failure to state a claim. A fair reading of the
complaint and related EEO counseling materials indicates that Complainant claims that she has
been subjected to a series of related harassing incidents from March 2008 through March 2011.
By alleging a pattern of harassment, Complainant has clearly stated a cognizable claim under
the EEOC regulations. See Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303
(Nov. 12, 1993). Thus, the Agency improperly dismissed claim (11) from Complainant’s
hostile work environment claim. Additionally, the Commission notes that the Agency
correctly determined that claim (7), while untimely as a discrete act, could be included as part
of Complainant’s hostile work environment claim. Therefore, all 14 incidents comprise a
single claim of hostile work environment.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded hostile work environment claim in accordance
with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has
received the remanded claim within thirty (30) calendar days of the date this decision becomes
final. 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 becomes final, 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.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614

(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 request or
opposition must also include proof of service on the other party.
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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 (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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 20, 2013
Date