Joanna V., Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 25, 2016

0120142788 (E.E.O.C. Feb. 25, 2016)

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

Joanna V.,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142788
Agency No. 2003-0598-2014102883

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated July 9,
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.

At the time of events giving rise to this complaint, Complainant worked as an Assistant Nurse
Manager at the Agency’s facility in Little Rock, Arkansas. On June 16, 2014, Complainant filed
a formal complaint alleging that the Agency subjected her to hostile work environment
discrimination on the basis of age (58) when:

1. On August 28, 2013, the associate nurse executive told Complainant when a new
manager (M1) was assigned to her unit that if M1 “is strong and you are weak, the
unit will not do well”;
2. On April 21, 2014, M1 “rudely” interfered with Complainant’s conversation with
a coworker as she was reporting an incident with patient care;
3. On April 24, 2014, M1 was “demeaning and derogatory” when she accused
Complainant of making mistakes; and
4. On April 28, 2014, the associate nurse executive insulted Complainant when she
questioned whether Complainant had actually written the statement concerning
the April 24, 2014 incident.

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.

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In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R.
§ 1614.107(a)(1), for failure to state a claim. On appeal, Complainant contends that the Agency
erred in dismissing her complaint and argues that the Agency misstated her claims in order to
support the dismissal.

We find that the Agency properly dismissed Complainant's complaint for failure to state a claim.
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Sav. 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 a complainant's employment. The
Court explained that an “objectively hostile or abusive work environment [is created when] a
reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives
it as such. Harris, supra at 21-22. 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, 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.

Initially, we note that despite Complainant’s contentions on appeal, a review of the EEO
Counselor’s report and the formal complaint show that the Agency’s articulation of
Complainant’s complaint was accurate. Next, we find that Complainant is alleging a series of
interactions with management officials where Complainant believes she was “demeaned,
degraded, and constantly put down and talked to very loudly, rudely, and disrespectfully.” We
find that even assuming the incidents occurred as alleged by Complainant, we do not find that
this matter is sufficiently severe or pervasive to state an actionable claim of harassment.

CONCLUSION

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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.

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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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (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. Such requests do not alter
the

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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, Director
Office of Federal Operations

February 25, 2016
Date