closed0120112660
08-26-2011
Pegah Bazeghi, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Pegah Bazeghi,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112660
Agency No. 200P-0691-2011101077
DECISION
Complainant filed an appeal with this Commission from the Agency's undated
final decision, 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. and 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 Registered Nurse at
the Agency’s facility in West Los Angeles, California.
On January 25, 2011, Complainant filed a formal complaint. Therein,
Complainant claimed that the Agency subjected her to discrimination on
the bases of race, religion, and disability.
In its final decision, the Agency determined that Complainant’s formal
complaint was comprised of the following claims:
1. On October 25, 2010, Complainant was assigned to charge nurse duties;
which violated her medical restrictions; and
2. On December 10, 2010, the Associate Chief Nurse and an Instructor
informed Complainant that [she] had not met proficiency requirements
during training and orientation.
The Agency dismissed Complainant’s formal complaint. The Agency
found that claim (1) is a discrete act and that Complainant failed
to initiate EEO Counselor contact in a timely manner. Specifically,
the Agency stated that “[t]his action was effective on October 25,
201[0]; therefore your [time period] expired on December 9, 2010.”
The Agency dismissed claim (2) for failure to state a claim. The Agency
found that claim (2) was not sufficiently severe or pervasive to state
an actionable claim of harassment.
CONTENTIONS ON APPEAL
On appeal, Complainant submits a copy of the EEO Counselor’s Report.
In response, the Agency requests that we affirm its final decision
dismissing Complainant’s complaint.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency improperly fragmented
Complainant’s claims by viewing them as separate discrete acts.
The record reflects that Complainant is alleging that she is being
subjected to a hostile work environment comprising incidents (1) and (2).
Dismissal for Untimely EEO Counselor Contact
The Agency improperly dismissed incident (1) on the grounds of untimely
EEO Counselor contact. As set forth above, we found that the Agency
improperly fragmented Complainant’s claim. The Commission finds that
“[b]ecause the incidents that make up a hostile work environment
collectively constitute one unlawful employment practice, the entire
claim is actionable, as long, at least one incident that is part of the
claim occurred within the filing period. This includes incidents that
occurred outside the filing period that the [complainant] knew or should
have known were actionable at the time of their 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)).
In the instant matter, Complainant contacted an EEO Counselor on December
13, 2010. Incident (2) occurred within the 45-day period preceding
Complainant’s initial EEO contact. Thus, Complainant’s hostile work
environment claim is timely.1
Dismissal for Failure to State a Claim
The Commission finds that the Agency improperly dismissed incident (2)
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.
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13,
1997).
Upon review of the record, we find that when viewing the alleged incidents
collectively, Complainant has set forth an actionable claim of harassment.
CONCLUSION
Accordingly, we REVERSE the Agency’s final decision dismissing
Complainant’s complaint, defined herein as a hostile work environment
claim, and we REMAND this matter to the Agency 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
August 26, 2011
Date
1 A fair reading of the record reflects that with respect to incident
(1) Complainant is alleging that she was reassigned to a position
that violated her medical restrictions; thus, Complainant appears to
be alleging that she was denied a reasonable accommodation. We note
that the EEOC's Compliance Manual, Section 2, “Threshold Issues,”
p. 2-73, EEOC Notice 915.003 (July 21, 2005) provides that “because an
employer has an ongoing obligation to provide a reasonable accommodation,
failure to provide such accommodation constitutes a violation each time
the employee needs it.”
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0120112660
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112660