[Redacted], Dimple D, 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2023000248 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dimple D,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2023000248 Agency No. 200P-640-2022-145575 DECISION On October 14, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2022 final decision dismissing her equal employment opportunity (EEO) complaint claiming 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 Safety Technician, GS-7, at the Agency’s Palo Alto VA Healthcare System in Palo Alto, California. On June 30, 2022, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (American Indian/Alaska Native) and disability, as well as reprisal for prior EEO activity. In her complaint, she alleged that she assisted a group of veterans in submitting a grievance of upper-level management, which accused her supervisor (the Service Chief) of violating laws and codes of conduct and requested that the supervisor be investigated. Complainant then alleged that she was subjected to a hostile work environment by the management when: (a) on March 31, 2022, Complainant met with Service Chief at her request to voice concerns about the work environment but the Service Chief did not acknowledge any of Complainant’s concerns; (b) on April 13, 2022, Complainant was interviewed for several fact- 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. 2023000248 2 finding inquiries, including one about Agency hiring practices; and (c) on April 15, 2022, the Service Chief invited Complainant to a staff TEAMS meeting where they were told to turn on their cameras and, with respect to the recent firing of their co-workers, to act professionally. Complainant also indicated that her husband, who works in the same workplace, was subjected to a fact-finding inquiry and was asked about hiring practices in the workplace especially with respect to Complainant’s hiring. We also note that, on appeal, Complainant asserts that after she filed her formal complaint, she contacted the EEO counselor to allege further incidents of discriminatory and retaliatory harassment by the Service Chief, regarding her telework agreement, issues with leave, and her access to job-essential programs. We will consider these allegations as part of her overall harassment claim. The Agency dismissed the formal complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a). The instant appeal followed. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept from an aggrieved employee or applicant for employment who believes that they have 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). If the complainant cannot establish that they are aggrieved, the agency may dismiss their complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). However, the anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee’s efforts to secure or advance enforcement of the statutes’ basic guarantees and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, Complainant must allege that: 1) he was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Moreover, as held by the Supreme Court in Faragaher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the “terms and conditions of 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. 2023000248 3 To dismiss a complaint, all of the alleged harassing incidents and remarks must be considered together in light most favorable to the complainant to determine whether they are sufficient to state a claim. Cobb v. Dep’t of the Treas., EEOC Request No. 05970077 (Mar. 13, 1997). Here, we determine that Complainant was not alleging that she was merely subjected to offhand comments or isolated innocuous incidents. Complainant addresses a variety of events related to incidents which affected disabled veterans and other employees and her involvement in bringing these matters to the attention of upper management, as argued by Complainant’s counsel on appeal. Complainant highlights the stress she had experienced under these conditions, the questioning she was subjected to during fact-finding investigations and various other meetings, a fair reading of which reflects a series of purported confrontational experiences. Moreover, as already noted, on appeal Complainant asserts that after she filed her formal complaint, she contacted the EEO counselor to allege further incidents of discriminatory and retaliatory harassment by the Service Chief, regarding her telework agreement, issues with leave, and her access to job-essential programs. Finally, Complainant alleges the Agency involved her husband in the fact-finding investigations in order to unlawfully retaliate against her. In sum, we find that Complainant has sufficiently raised a viable claim of ongoing discriminatory or retaliatory harassment. Finally, we note that in her formal complaint, Complainant provides a narrative of circumstances leading to her applying and accepting the current position within the Agency in November 2021. We agree with the Agency that to the extent that Complainant addresses matter raised in that prior position, they are not like or related to the matters in the instant position, which have been discussed above. CONCLUSION Accordingly, the Agency’s dismissal decision is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this Decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 2023000248 4 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). 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 (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. 2023000248 5 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 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 (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. 2023000248 6 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 January 31, 2023 Date