Kathlyn K,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 23, 2020

2020003375 (E.E.O.C. Jul. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathlyn K,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003375 Agency No. 200J-0331-2020102914 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 27, 2020, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Veterans Claims Examiner at the Agency’s facility in Overland, Missouri. On April 13, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability. In its final decision, dated April 27, 2020, the Agency determined that Complainant’s complaint was comprised of the following claim: Whether Complainant was subjected to a hostile work environment based on disability when: a) beginning in May 2019 and continuing, she was told she was not meeting her standards and [was] not allowed to work overtime; b) on January 8, 2020, she was denied training; (c) on January 24, 2020, she received a summary performance rating of unsuccessful, and d) as recently as February 28, 2020, management has not responded to her requests for an audit. 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. 2020003375 2 The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact reasoning that she initiated EEO contact on March 11, 2020, but that the independent actionable claims occurred on or before January 24, 2020, outside the applicable time period. The Agency also dismissed the formal complaint for failure to state a claim, reasoning that the subject claims were neither sufficiently severe or pervasive to state a justiciable claim. The instant appeal followed. On appeal, Complainant asserts that she did not suspect discrimination until February 28, 2020, when her new supervisor verified that she had previously passed her production standards. Specifically, Complainant asserts her prior supervisor informed her that she had failed productions standards for several months and thus denied her overtime and the ability to work on other projects. However, Complainant asserts that she was informed by her new supervisor on February 28, 2020, that she had previously passed her production standards for several months that her prior supervisor informed her that she had failed. ANALYSIS AND FINDINGS As an initial matter, we find that Complainant is alleging a claim of harassment/hostile work environment. The Agency should have viewed the incidents comprising her hostile work environment claim collectively rather than fragmenting them. Dismissal for Untimely EEO Counselor Contact The Agency improperly dismissed Complainant’s complaint for untimely EEO Counselor contact. As set forth above, Complainant is alleging a harassment/hostile work environment claim. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim ‘collectively constitute one unlawful employment practice,’ the entire claim is actionable as long as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside of the filing period that [Complainant] knew or should have known were actionable at the time of the occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp v. Morgan, 536 U.S. 101, 117 (2002)). At least one of the incidents comprising Complainant’s hostile work environment claim occurred within the 45 days preceding her EEO contact. Complainant did not reasonably suspect discrimination regarding being told by her former supervisor that she did not meet production standards until February 28, 2020. Complainant asserts consistently throughout the record (in the initial contact form, EEO Counselor’s Report, and formal complaint) that the date of the alleged discrimination occurred on February 28, 2020, when she was informed by her new supervisor that she had actually passed production standards for a specified period of time when previously her former supervisor had informed her that she had failed to meet the production standards. Thus, because we find that Complainant did not reasonably suspect discrimination regarding this incident until February 28, 2020, her entire hostile work environment claim is timely. 2020003375 3 Dismissal for Failure to State a Claim We also find that the Agency improperly dismissed Complainant’s complaint for failure to state a claim. As set forth above, Complainant is alleging an ongoing hostile work environment claim which included, being wrongfully told she was failing productions standards,2 being denied overtime, being denied ability to work on projects, being denied training, and receiving an “unacceptable” summary performance rating. When viewing these incidents collectively, we find that these incidents are sufficiently severe or pervasive to set forth an actionable claim of harassment that requires investigation and further processing. Accordingly, we REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND these matters, defined herein as a hostile work environment claim, to the Agency for further processing in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). 2 Complainant asserts that she was told that failure to meet production standards could result in loss of telework privileges, no promotion, and termination. 2020003375 4 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 2020003375 5 The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 July 23, 2020 Date