0120103270
12-02-2010
Linda Shapleigh, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Linda Shapleigh,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103270
Agency No. 200406592010102776
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 23, 2010, dismissing her 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.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her
to harassment on the bases of race (Caucasian), sex (female), and age
(56). In support of her claim of harassment, Complainant indicated
several events occurred from January 2009 through April 2010. Some of
the events included were:
1. On January 14, 2009, Complainant's supervisors (Supervisor 1 and 2)
invaded her privacy by asking questions about her Employee Assistance
Program (EAP) doctor appointments.
2. On February 9, 2002, Complainant filed a Report of Contact with
the Agency's Office of Inspector General. In the report, Complainant
alleged, among other things, that she was denied compensation for overtime
or credit for time ("comp time"). Complainant also indicated that
Supervisor 1 would point to the back of his hand during conversations
to indicate the color "White" when asked about why he did not get a
particular job.
3. On February 24, 2009, Supervisor 1 stated that Complainant was not
allowed to let employees take their breaks in her office.
4. On March 22, 2010, Supervisor 1 and Supervisor 2 shadowed Complainant
while she performed her duties.
5. 4. On March 22, 2010, Supervisor 1 instructed an employee to give a
complimentary package that was for the Complainant's unit to Supervisor
2 instead of the Complainant.
6. On March 26, 2010, Supervisor 1 instructed Complainant to start
retrieving patient information from the computer system instead of asking
the Ward Clerk for the information.
7. On March 26, 2010, Supervisor 1 questioned Complainant about not
returning six voicemail messages/telephone calls that were left for her
the previous day by clients.
8. During the week of April 5, 2010, Supervisor 1 and Supervisor 2
shadowed Complainant while she made her rounds on the inpatient wards.
9. On April 6, 2010, Supervisor 1 followed her to the Intensive Care Unit
(ICU) when she went to see a doctor about an outpatient.
The Agency dismissed the complaint for failure to state a claim.
The Agency noted that in event 1, Complainant alleged a violation of
laws not within the EEOC's jurisdiction such as the Health Insurance
Portability and Accountability Act of 1996 (HIPAA). The Agency failed to
include event 2 in its final decision. Therefore, based on events 3-9,
the Agency found that Complainant failed to allege events sufficiently
severe or pervasive enough to state a claim of harassment. This appeal
followed without specific comment.
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).
In determining whether a harassment complaint states a claim in cases
where a complainant had not alleged disparate treatment regarding a
specific term, condition, or privilege of employment, the Commission
has repeatedly examined whether a complainant's harassment claims, when
considered together and assumed to be true, were sufficient to state a
hostile or abusive work environment claim. See Estate of Routson v. Nat'l
Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26,
1999).
Consistent with the Commission's policy and practice of determining
whether a complainant's harassment claims are sufficient to state a
hostile or abusive work environment claim, the Commission has repeatedly
found that claims of a few isolated incidents of alleged harassment
usually are not sufficient to state a harassment claim. See Phillips
v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996);
Banks v. Health and Human Serv., EEOC Request No. 05940481 (February
16, 1995). Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action usually 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 (February 9, 1995).
In determining whether an objectively hostile or abusive work environment
existed, the trier of fact should consider whether a reasonable
person in the complainant's circumstances would have found the alleged
behavior to be hostile or abusive. Even if harassing conduct produces
no tangible effects, such as psychological injury, a complainant may
assert a Title VII cause of action if the discriminatory conduct was
so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin.
Rideout v. Dep't of the Army, EEOC Appeal No. 01933866 (November 22,
1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993))
request for reconsideration denied EEOC Request No. 05970995 (May 20,
1999). Also, the trier of fact must consider all of the circumstances,
including the following: the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance. Harris, 510 U.S. at 23.
The Agency failed to consider event 1 in Complainant's claim of harassment
for it believed such a claim constituted a violation of HIPAA and not
a claim of discrimination within EEOC's jurisdiction. We find that
Complainant has not alleged a violation of HIPAA but instead believed
that is was another incident which she claimed created a hostile work
environment. As such, it should have been considered part of the instant
complaint.
Also noted above, the Agency failed to include event 2. Complainant
indicated that she was denied overtime and "comp time." We note that
Complainant listed this event in the dates of the alleged discrimination
on her formal complaint and included this event in the documents
accompanying her formal complaint. As such, we find that the Agency
should have also considered event 2 in determining whether Complainant
stated a claim of harassment.
Based on the Commission's review of the events as listed above, we
find that Complainant has stated a claim of harassment. We note that
Complainant has alleged tangible and non-tangible employment actions in
support of her claim of harassment. As such, we find that Complainant
has stated events which, when taken as a whole, are severe or pervasive
enough to create a hostile work environment.
CONCLUSION
Therefore, we REVERSE the Agency's decision and REMAND the matter for
further processing in accordance with the ORDER below.
ORDER (E0610)
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 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 (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
December 2, 2010
__________________
Date
2
0120103270
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103270