[Redacted], Concha E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2023000680 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Concha E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2023000680 Agency No. 200P-10N22-2022-147464 DECISION On November 14, 2022, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 3, 2022 final Agency decision (FAD) dismissing her complaint alleging 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 was employed by the Agency as a Medical Technician, GS-0645-05, at the Desert Pacific Healthcare Network, Pathology, Specimen Acquisitions in Long Beach, California. On September 5, 2022, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency unlawfully retaliated against her for prior protected EEO activity under Title VII and the Rehabilitation Act when, on July 15, 2022, her former supervisor (supervised her from February or March 2020 to April 2021) took a photograph of her and emailed the 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. 2023000680 2 photograph to upper management.2 Complainant contended that her former supervisor asserted the photograph showed her asleep on the job. Complainant wrote that on July 18, 2022, the next business day, her current supervisor raised the sleeping matter with her. That day she received an email from her current supervisor that he was following up on their discussion about sleeping on duty, he understood she said she was not sleeping, but “evidence at my disposal says otherwise”, and to please not sleep on duty. The Agency dismissed this claim for failure to state a claim because it was not severe or pervasive enough to rise to the level of actionable harassment. The instant appeal followed. On appeal, Complainant argues that she was looking down, not sleeping, and her former supervisor photographed and asserted she was sleeping to harass her. In reply to Complainant’s appeal, the Agency argues that the FAD should be affirmed. ANALYSIS AND FINDINGS In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings 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 the 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, 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. The Commission has a policy of considering reprisal claims with a broad view of coverage. Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). 2 Prior to filing this complaint, Complainant requested to amend a prior EEO complaint (200P- VI22-2021100775) with this allegation. The prior complaint concerned discrimination and a hostile work environment, and alleged the former supervisor perpetrated many or all of the harassment incidents. When Complainant requested to amend her prior complaint, the Agency had already investigated it, issued a FAD finding no discrimination, and she had filed an appeal with this office, which assigned it EEOC Appeal No. 2022002779. The Agency denied Complainant’s amendment request because the prior complaint was pending appeal. It still is. In the complaint before us, Complainant raised some matters in her prior complaint, which the Agency dismissed for being duplicative of the prior complaint. On appeal, Complainant writes that in the complaint before us the issues the Agency found were duplicates should be treated as background information. Accordingly, we need not address them further. 2023000680 3 Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Enforcement Guidance on Retaliation and Related Issues, Section B, OLC Control No. EEOC-CVG-2016-1 (Aug. 25, 2016) (available at eeoc.gov). The photographing occurred 14 to 15 months after Complainant was no longer supervised by the former supervisor, and the last hostile work environment incident in Complainant’s prior complaint that the former supervisor could have perpetrated was denial of overtime opportunities, which could only occur while she still supervised Complainant. We find that the photographing incident is not part of the same hostile work environment alleged in Complainant’s prior complaint because of the 14 to 15 month break in time between them. We further find that as an isolated incident, the photographing and emailing of it to management is not sufficiently severe or pervasive to alter the conditions of Complainant's employment, nor reasonably likely to deter her EEO activity. CONCLUSION The FAD dismissing the complaint for failure to state a viable claim is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2023000680 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2023000680 5 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 March 2, 2023 Date