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

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2022003742 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vaughn L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003742 Agency No. 20DR00082022145035 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's May 26, 2022 dismissal of 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant was employed by the Agency as a Management Analyst, Office of Enterprise Integration, located at Agency Headquarters in Washington, D.C. During the relevant time, Complainant had been on disability leave for two years. In September 2021, his application for medical disability retirement was denied by the Office of Personnel Management (OPM). Thereafter, Complainant received an email from the Agency’s Director of Risk Management. He considered the tone of the email to be threatening and he interpreted it as notice that the Director wanted to terminate his employment with the Agency. 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. 2022003742 2 On April 14, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment/harassment on the bases of disability and reprisal2 for prior protected EEO activity when: On February 10, 2022, the Director of Risk Management sent Complainant an email stating: “If you don’t report back to work on February 14, 2022, you will be charged absent without leave (AWOL).” The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS 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 the complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). In determining whether a harassment complaint states a claim, the Commission examines whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). However, we have repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). Similarly, as Complainant is raising a reprisal claim, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (March 29, 2007). 2 On appeal, Complainant clarified that his complaint also includes reprisal as a basis. See Logan v. United States Postal Serv., EEOC Appeal No. 01980770 (Oct. 23, 1998) (the Commission has long provided complainants with a “liberal latitude to clarify the bases of discrimination” throughout the complaint process without changing the identity of the claim) citations omitted. 2022003742 3 The allegation in the instant complaint constitutes an isolated incident and does not describe conduct that is so severe or pervasive as to create harassment or deter complainant or others from engaging in protected EEO activity. We note that there are varying descriptions of the February 10, 2022 email (also referenced as a memorandum and as a letter) in the EEO Counselor’s Report from Complainant and the Director. While the Agency failed to include a copy for the record, it is undisputed that the email informed Complainant that he risked being recorded as AWOL if he did not comply with the Director’s instruction to return to work. Even assuming that the tone of the February 10, 2022 was threatening, as alleged by Complainant, and it contained the exact phrase “if you don’t report back to work on February 14, 2022, you will be fired and subject to AWOL” as stated in Complainant’s formal EEO complaint, this isolated incident is not sufficient to state a claim of harassment. The letter did not propose any personnel action. According to the EEO Counselor’s Report, Complainant was not recorded as AWOL when he did not return to work, rather, the Director approved him for leave without pay (“LWOP”). On appeal, Complainant asserts that the allegation in the instant complaint “should be viewed as part of the pattern of discrimination and retaliation against [Complainant] including his other EEO case, now pending before an Administrative Judge.”3 However, he did not raise any additional instances of harassment in his formal EEO complaint. OPM issued a decision on February 16, 2022 approving him for disability retirement. In his formal EEO complaint, Complainant requests $300,000 in nonpecuniary compensatory damages, reasoning the amount is appropriate, given the potentially serious ramifications of an AWOL proceeding. Additionally, Complainant asserts: “although OPM approved his retirement, [the Director’s] threatening email gave [Complainant] mental and emotional shock, and he wants compensation to relieve the action taken against him.” While we acknowledge that Complainant claims to have suffered damages as a result of the incident at issue, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep’t of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 3 EEOC Hearing No. 570201901152X (as of the date of this decision, pending before an AJ). 2022003742 4 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. 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). 2022003742 5 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. 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 September 28, 2022 Date