0120112628
08-26-2011
Marlena Skye, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Marlena Skye,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112628
Agency No. 200P-0662-2011100461
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated April 1, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant was employed as a Respiratory
Therapist, GS-8, at the Agency’s Veterans Affairs Medical Center in
San Francisco, California.
On December 22, 2010, Complainant filed the instant formal complaint.
Therein, Complainant alleged that she was subjected to harassment and a
hostile work environment on the bases of sex and in reprisal for prior
protected activity when:
1. on April 12, 2007, Complainant’s supervisor (IS) screamed at her for
throwing away contaminated medication, after ordering her not to throw
it away, then in reprisal for this incident, changed the schedules of
two coworkers so that she would be isolated and without support;
2. in April 2007, IS began calling her into his office “every week
or so, sometimes for more than an hour,” and then would accuse her of
working too slow;
3. on April 26, 2007, in further reprisal for claim 1, IS issued
Complainant a reprimand for leaving a patient in distress;1
4. on July 5, 2010, in regard to an incident that occurred between two
of Complainant’s coworkers five months earlier, IS told Complainant
she better not call the police;
5. on July 28, 2010, IS called her to his office to discuss a complaint
about her from a nurse and then took her to the union office to give
her a copy of the complaint, without listening to her side of the story;
6. on August 16, 2010, in reprisal for Complainant helping a named
coworker (W1) with EEO complaints and for trying to help W1 get up off
the floor after tripping, IS took Complainant to the union office to
give her copies of written complaints submitted by “[named individual]
and another nurse;”
7. on September 18, 2010, after a named nurse (N1) lied about Complainant,
IS took Complainant to the union office and ignored what she had to
say about N1’s slanderous accusations and unprofessional behavior,
because IS is biased in favor of the nurses;
8. on October 29, 2010, IS ignored Complainant’s request for a witness
to be present when he told her he wanted to see her in his office,
and then told her he did not want to talk about it;
9. on November 2, 2010, IS ignored an incorrect order Complainant
brought to his attention, and instead referred her to the Assistant
Technical Director;
10. in November 2010, after complaining to the union about receiving
a fully successful performance appraisal, IS changed Complainant’s
rating to outstanding but told her he did not think she deserved it; and
11. on February 23, 2011, during an investigation involving a patient
death that occurred in December 2010, IS read complaints from nursing
staff that falsely accused Complainant of outrageous actions, without
giving her copies.
In its April 1, 2011 final decision, the Agency dismissed the formal
complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state
a claim, finding that Complainant was not aggrieved. The Agency found
that unless the conduct is severe, a single incident or group of isolated
incidents will not be considered discriminatory harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, argues that the Agency erred
dismissing her complaint for failure to state a claim. For instance,
Complainant states that the Agency improperly dealt with her claims
“in a piecemeal manner and improperly fragmented Appellant’s
claims.” Complainant further states that IS made disrespectful and
insulting comments to her; inappropriately expressed concerns about her
performance to other employees; humiliated her in front of her colleagues;
and questioned her leave requests.
ANALYSIS AND FINDINGS
The Agency improperly dismissed the instant formal complaint for failure
to state a claim. The formal complaint and pre-complaint documents
identified a series of incidents that include Complainant’s being
harassed when IS yelled at her; was called into IS’s office every week
for more than an hour and being accused of working too slow; issued her
a reprimand; warned her not to call the police concerning an incident
involving two coworkers; IS refused to listen to her side of the story
after notifying her there were complaints filed against her; her request
to have a witness present during her meeting with IS was denied; and IS
ignored an incorrect order she brought to his attention. Moreover, on
appeal, Complainant argues that the harassment has persisted as of the
time she filed the instant appeal. By alleging a pattern of harassment,
Complainant has stated a cognizable claim under the EEOC regulations. See
Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s formal complaint, defined herein as a harassment claim,
and we REMAND this matter to the Agency for further processing in
accordance with the ORDER below.
ORDER
The Agency is ordered to process the remanded claim (harassment/hostile
work environment) 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 (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 26, 2011
__________________
Date
1 The record reflects that in its February 18, 2011 partial dismissal,
the Agency dismissed claim 3 on the grounds of untimely EEO Counselor
contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The record further
reflects that the Agency included claim 3 in its final decision for
consideration in analysis of Complainant’s harassment claim.
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***Appeal number TX***
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112628
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