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

Equal Employment Opportunity Commission

Feb 27, 2023

Appeal No. 2023000087 (E.E.O.C. Feb. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milton D,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2023000087 Agency No. 200P-663-2022-145872 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 8, 2022, dismissing his 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 Chief of Logistics, GS-14, at the Agency’s VA Puget Sound Health Care System facility in Seattle, Washington. On June 3, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, from August 2021 through May 2022, the Agency failed to discipline the employees responsible for discriminating against him in two prior EEO complaints (Associate Director and Acting VISN 20 Deputy Director). Complainant further alleged that the VA Puget Sound Director, Associate Director, and Acting VISN 20 Deputy Director had all committed individual acts of retaliation against Complainant. The Agency framed Complainant’s complaint as follows: 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. 2023000087 2 Whether complainant was discriminated based on Reprisal, when from August 2021 - May 2022, management did not discipline Associate Director and Acting VISN 20 Deputy Director per the VA Table of Penalties but instead provided them career enhancing opportunities, such as Associate Director was selected for a VACO Task Force and Acting VISN 20 Deputy Director was promoted to Acting VISN Deputy Director. The Agency then dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved, he was alleging issues with management decisions that were within their right to make, and he had not alleged factors that would deter a reasonable person from engaging in protected EEO activity. Complainant filed the instant appeal. On appeal, Complainant contends the Agency should have accepted his complaint for investigation. In support of this, Complainant states that the lack of discipline, public praising, and career enhancing opportunities given to Associate Director and Acting VISN 20 Deputy Director are retaliatory acts against him and have a chilling effect on other employees’ willingness to file complaint since they have seen what happens when someone actually “wins” a complaint. Complainant states that failing to properly discipline employees for a substantiated retaliation EEO complaint and then rewarding those employees with promotions and career enhancing opportunities are acts of harassment, intimidation, and retaliation. He also noted that Associate Director has been calling VISN and stating that Complainant’s section is failing to perform their responsibilities. Complainant contends this is harassment in retaliation for his prior EEO complaints. Complainant stated that Acting VISN 20 Deputy Director assigned an inspector to Complainant’s section who failed them for standards VISN had already approved in multiple meetings prior to the inspection. Complainant also contends this is harassment in retaliation for his prior EEO complaints. The Agency contends on appeal that the complaint was properly dismissed because Complainant’s allegations are that he disagrees with management’s decision regarding the discipline of employees and therefore he has not alleged a direct harm. The Agency further contends no factors were founded that would deter a reasonable person from participating in the EEO complaint process. The Agency notes that on appeal, Complainant has not presented evidence to show he satisfied his burden of proof regarding the claims of unlawful discrimination based on reprisal. ANALYSIS AND FINDINGS EEOC Regulations require the dismissal of complaints that fail to state a claim. See 29 C.F.R. § 1614.107(a)(1). To state a claim, Complainant must allege present harm inflicted on the basis of race, sex, religion, national origin, age, disability, or prior protected activity. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Concerning claims of reprisal, EEOC Regulations prohibit reprisal against an individual for opposing any practice made unlawful by Title VII of the Civil Rights Act (Title VII) (42 U.S.C. 2000e et seq.), the Equal Pay Act (29 U.S.C. 206(d)), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et 2023000087 3 seq.), the Rehabilitation Act (29 U.S.C. 791 et seq.), or for participating in any stage of administrative or judicial proceedings under these statutes. 29 C.F.R. § 1614.101(b). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). 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 Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; see also Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). Here, Complainant essentially argues that the Agency’s failure to discipline employees, who were found to have engaged in discriminatory and retaliatory conduct in violation of EEO regulations, in accordance with the Agency’s Table of Penalties, and rewarding those employees with promotions and career enhancing opportunities are new acts of harassment and retaliation. Even considering the Commission’s broad view of reprisal claims, we find these allegations fail to state a claim, as he is not alleging an independent Agency action that caused him harm. To the extent Complainant is challenging the remedies ordered by the past final agency decisions (FAD), Complainant was advised as to how to appeal those decisions to the Commission. However, the Agency failed to note or address in its dismissal that Complainant also raised in his formal complaint that three Agency employees have committed individual acts of retaliation against him. Complainant did not provide details of the alleged acts of retaliation against him committed by VA Puget Sound Director, Associate Director, and Acting VISN 20 Deputy Director. Pursuant to EEOC Regulation 29 C.F.R. § 1614.106(c), the EEO complaint must be “sufficiently precise . . . to describe generally the action(s) or practice(s) that form the basis of the complaint.” But an Agency must attempt to clarify a claim, rather than fail to address it, even if the claim “does not contain adequate detail for the Agency” to accept it for investigation. Deger v. NASA, EEOC Appeal No. 0120080956 (May 7, 2012). Here, we find that while Complainant only vaguely alleged act of retaliation in the EEO complaint, the Agency failed to attempt to clarify these claims. We will therefore remand this claim to the Agency for the solicitation of information from Complainant to clarify the claim, and thereafter to either accept the claim for investigation or properly issue a final agency dismissal of the claim pursuant to 29 C.F.R. § 1614.107. CONCLUSION For the foregoing reasons, the Agency's final decision dismissing the formal complaint is MODIFIED and allegations raised by Complainant are REMANDED to the Agency for further processing as set forth below. ORDER Within forty-five (45) calendar days of the date this decision was issued, the Agency is ordered to process the remanded claims, in accordance with 29 C.F.R. § 1614.105 et seq., by providing Complainant EEO counseling on the allegations he raised of acts of retaliation against him committed by VA Puget Sound Director, Associate Director, and Acting VISN 20 Deputy 2023000087 4 Director. Prior to the end of this period, the Agency shall issue to Complainant a notice of right to file a formal complaint, unless the matter is otherwise resolved. If Complainant files a formal complaint, the Agency shall, in accordance with 29 C.F.R. § 1614.106 et seq., either accept the complaint for investigation or issue a decision dismissing it pursuant to 29 C.F.R. § 1614.107.2 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. 2 Complainant shall be deemed to have initiated timely EEO counseling on these allegations. 2023000087 5 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. 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2023000087 6 “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. 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 27, 2023 Date