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

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2023000585 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet J.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2023000585 Agency No. 200P-612-2022-147260 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 1, 2022, dismissing her complaint alleging 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 At the time of events giving rise to this complaint, Complainant worked as a Supervisory Vocational Rehabilitation Specialist at the Agency’s Sacramento Hospital in Mather, California. On September 9, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the bases of sex (female) and reprisal for prior protected EEO activity when: a) On June 13, 2022, Complainant’s Supervisor called several female staff members derogatory names. a) On June 14, 2022, her Supervisor purportedly forced her to engage in illegal hiring practices by only reviewing job applications from men. 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. 2023000585 2 b) On June 21, 2022, her Supervisor told her to pick up the caseload from the Community Based Service Delivery which interfered with Complainant’s job. c) On June 22, 2022, her Supervisor accused her of zero productivity though he told her not to carry a case load. d) On July 15, 2022, her Supervisor denied her access to USA Staffing in order to properly complete staff hiring. e) On July 15, 2022, her Supervisor told her to re-start having weekly meetings, though similar male staffers were not required to do the same. f) On July 19, 2022, her Supervisor over-stepped into her area of responsibility and required her to score some applicants’ experience and send it to him by noon. g) On July 26, 2022, her Supervisor yelled at her and accused her of calling him a liar. h) On August 4, 2022, her Supervisor questioned the Intake/VAP/Vocational assessments which she composed. The Agency dismissed allegation 1 of the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), reasoning the alleged comments were not directed at Complainant but other employees and Complainant cannot bring a complaint on behalf of other employees. The Agency also dismissed the complaint in its entirety as untimely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). In so doing, the Agency found Complainant received the Notice of Right to File a Discrimination Complaint (“Notice”) on August 23, 2022, but did not file her complaint until September 9, 2022, beyond the 15-day filing deadline. The Agency alternatively dismissed the complaint in accordance with 29 C.F.R. 1614.107(a)(1) for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Timeliness of Complaint Filing The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. Time limits are subject to waiver, estoppel, or equitable tolling. 29 C.F.R. § 1614.604(c). Complainant contends in her appeal that while the Agency attempted to e-mail her the Notice on August 23, 2022, the e-mail “was missing multiple sections of the document (claim) and was incomplete with information not in the correct section.” 2023000585 3 She notes that, “[o]n August 30, 2022, I requested [via e-mail] the Agency send the completed form with the correct information ...” Complainant further contends that, “[u]pon receipt of the corrected and properly completed document [Notice] on August 30, 2022, this would give me until September 14, 2022 to be in compliance with C.F.R. §1614.107.” Finally, Complainant maintains, “I therefore contend that I have a valid right to appeal the dismissal based on the initial letter [e-]mailed on August 23, 2022 was incomplete and missing information, which was confirmed by an Agency employee.” Complainant is essentially asserting that the initial e-mail sent to her on August 23, 2022, by an Agency EEO Counselor did not contain a legible Notice fully informing her of the requirement to file a formal complaint within fifteen (15) days of receiving said Notice. The record confirms that she did contact the EEO Counselor, who sent Complainant a second Notice on August 30, 2022, which contained a notice that a formal complaint had to be filed within 15 calendars days of Complainant’s receipt of the Notice. It is undisputed that Complainant filed her formal complaint on September 9, 2022, less than 15 days from the August 30th Notice. While Complainant had received the earlier Notice on August 23rd, we determine that Complainant has provided adequate justification for excusing her delay from that earlier Notice and filing her complaint based on the subsequently received corrected Notice. See 29 C.F.R. § 1614.604(c). We therefore conclude that the Agency erred in dismissing the complaint in its entirety as untimely filed. Failure to State a Claim - Allegation 1 Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Agency separately dismissed allegation 1 of the complaint, reasoning Complainant did not have standing to pursue this matter because the alleged comments were not directed at her personally. However, we conclude that dismissal of this allegation is premature because the facts surrounding this matter have not been adequately developed. We note that Complainant’s overall claim is one of a hostile work environment and allegation 1 is one of many supporting incidents. Derogatory name-calling related to protected bases can contribute to a hostile work environment even if the name-calling is not directed at the complainant but occurred under circumstances that affected them (such as, occurred where they overheard the name-calling). Because we are remanding the overall hostile work environment complaint back to the Agency for investigation and further processing, we will include allegation 1 in that remand to be considered as part of the evidence Complainant is proffering in support of her overall claim. 2023000585 4 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED, and the complaint is REMANDED to the Agency for further processing pursuant to the following Order. 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 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). 2023000585 5 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. 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. 2023000585 6 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. 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 February 21, 2023 Date