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

Equal Employment Opportunity Commission

Sep 8, 2022

Appeal No. 2022002823 (E.E.O.C. Sep. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenobia K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002823 Agency No. 2004-460-2022-142473 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 6, 2022, dismissing her complaint of 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Chief of Nutrition at the Agency’s Medical Center in Wilmington, Delaware. On January 24, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the basis of sex (female) when: 1. In June 2021, her supervisor, the Associate Director of Operations (ADO), detailed her as an Assistant to the Chief of Staff office. 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. 2022002823 2 2. From April 26, 2021 to June 20, 2021, the ADO directly detailed her to the Fiscal Office. 3. On November 2, 2021, she learned from a previous colleague that the ADO hired a male Dietician Service Chief. The Agency issued a decision dismissing claims 1 and 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), and claim 2 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency noted that, while Complainant had received EEO counseling for claim 1, she did not include the matter in her formal complaint and therefore, the claim was considered abandoned. Regarding claim 3, the Agency reasoned that incident was not logically connected or related to any tangible harm because Complainant had already accepted a new position at the Agency’s Medical Center in Hampton, Virginia and the Wilmington facility simply hired a replacement. The Agency found, with respect to claim 2, that Complainant had initiated contact with an EEO Counselor on November 2, 2021, which was 135 days after she became aware of the claim, and 90 days beyond the regulatory 45-day time limit. The instant appeal followed. On appeal, Complainant asserts that the ADO targeted the female service chiefs for male replacements in her role as the Associate Director of the Wilmington VA Medical Center. Complainant further asserts that “three other female service chiefs were targeted before me and left the facility,” and she “was the final female service chief reporting to the ADO.” The Agency asks that we affirm its final decision. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five 45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. According to the EEO Counselor’s Report, Complainant stated that “she believed the [ADO] wanted to force her out of her position to replace her with a male employee.” Both the narrative attached to the formal complaint and the EEO Counselor’s Report, reflect Complainant’s belief that she was harassed when the ADO repeatedly placed her on details in response to fact-finding investigations of claims made against Complainant, but that such charges were ultimately determined to be unfounded. Complainant plainly stated: “I was the last female leader on [the ADO’s] side of reporting and now she was going to force me out too.” According to Complainant, when she learned that she would again be the subject of an investigation, and “either [ADO] would have ammunition with the fact finding or she could fail me on [recently added] performance measures” Complainant began looking for a new job. In an effort to stay with the Agency, Complainant ended up taking a position five hours away. Thereafter, explains Complainant, “. . . I was informed by staff at Wilmington that I too had been replaced with a male service chief.” 2022002823 3 We find that a fair reading of Complainant’s complaint reflects that she is alleging harassment which lead to her being forced out of her service chief position in Wilmington because of her sex. The Agency framed the complaint as comprised of three separate claims, instead of treating these events as part of a broader claim of harassment, and dismissed them each on separate dismissal grounds. Thus, we find that the Agency acted improperly by treating matters raised in Complainant's complaint in a piecemeal manner. See Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November 3, 1994) (an agency should not ignore the "pattern aspect" of a complainant's claim and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, we find that Agency erred in dismissing claims 1 and 3 for failure to state a claim. Similarly, claim 2 was improperly dismissed for untimely counselor contact. The Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). See also Brown v. Dept. of the Army, EEOC Request No 05970558 (Sept. 15, 2000) (the Commission determined that Complainant had demonstrated a continuing violation and that the agency had erroneously dismissed complainant's complaint in a piecemeal method under theories of untimeliness and failure to state a claim). Here, Complainant has alleged a claim of ongoing harassment based on a series of events that occurred between April 26, 2021 through November 2, 2021. We find that Complainant’s November 2, 2021 contact was timely. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s decision. The case 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 complaint (as redefined as a claim of ongoing harassment resulting in her forced departure from her Wilmington position) 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 2022002823 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. 2022002823 5 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 (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. 2022002823 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 September 8, 2022 Date