0120150098
03-17-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150098
Agency No. 200J-0695-2014103168
DECISION
On October 9, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 12, 2014, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Emergency Department Program Manager, VN-3, at the Agency's Clement J. Zablocki Veterans Affairs Medical Center in Milwaukee, Wisconsin.
On August 22, 2014, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her age (60) when:
1. On May 19, 2014, her supervisor bullied her by suggesting that she retire, take up gardening or work in a flower shop, or apply for the position of Registered Nurse Telephone Triage, a demotion, and the next day another Agency official sent her an email with a vacancy announcement for the above position;
and was discriminated against on the above basis and reprisal for prior EEO activity under the ADEA when:
2. On June 16, 2014, her supervisor told her that she would be placed on a performance improvement plan (PIP).
In its FAD the Agency dismissed Complainant's complaint for failing to state a claim in accordance with 29 C.F.R. � 1614.107(a)(1). The Agency reasoned that Complainant's claims were isolated incidents that were not sufficiently severe or pervasive to constitute an actionable claim of harassment. Additionally, the Agency found that Complainant did not suffer harm or loss. It noted that as of September 9, 2014, Complainant remained in her current position, was not demoted or reassigned, and was never placed on a PIP.
On appeal, Complainant argues that the FAD should be reversed as the record contains sufficient evidence to establish a prima facie case of age discrimination. She argues that the Agency threatened to place her on a PIP to coerce her from withdrawing her equal employment opportunity (EEO) case. Complainant also argues that she has suffered mentally, physically, and emotionally, and she can present evidence of compensatory damages.
In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
Hostile Work Environment Claim
EEOC Regulation 29 C.F.R. � 1614.103, 106(a) in relevant parts states that an agency shall accept a complaint from any aggrieved employee who believes that s/he has been discriminated against by that agency. 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 she is aggrieved, the agency shall dismiss the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Complainant's claims, even assumed to be true and considered together, are insufficient to state a viable hostile work environment claim. The Agency's remarks were not sufficiently severe or pervasive to rise to the level of actionable harassment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Reprisal
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll. Thus, while proposed employment actions would normally be dismissed under 29 CFR � 1614.107(a)(5), proposed actions alleged in a claim of reprisal are considered adverse actions if they are reasonably likely to deter protected activity. Goodwin v. Department of the Air Force, EEOC Appeal No. 01991301, 01A01796 (October 18, 2000)(finding that a proposed reprimand allegedly issued in a reprisal for prior EEO activity states a claim where it is reasonably likely to deter future activity).
The EEO counseling report shows that on May 28, 2014, Complainant sent an email to her supervisors informing them that she was pursuing an EEO complaint against them for age based discrimination. Two weeks later, on June 16, 2014, Complainant was threatened by her supervisor with a PIP. Complainant's allegation successfully states a claim under the ADEA because the proposed action was reasonably likely to deter protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the FAD on claim one. We REVERSE the FAD on claim two and REMAND the matter for further processing in according with the order below.
ORDER
The Agency is ordered to process the remanded 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.
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.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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
March 17, 2015
__________________
Date
2
01-2015-0098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120150098