U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassey B.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120160920 Agency No. 200I05732015104807 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated December 11, 2015, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant, GS 6, at the Agency's Medical Center in Gainesville, Florida. On August 10, 2015, Complainant initiated EEO Counselor contact. During the informal counseling stage, Complainant raised a claim of harassment and hostile work environment, consisting of nine (9) specific events, but provided no explicit basis of discrimination. Informal efforts to resolve her concerns were unsuccessful. On November 9, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination when: 1. on April 25, 2014, during a meeting, a coworker (hereinafter referred to as CW) yelled at Complainant and used the "F" word; 2. on June 24, 2015, CW accused Complainant of taking her employee identification card; 3. on June 26, 2015, CW failed to inform Complainant when a patient had checked in; 4. on July 1, 2015, CW followed Complainant very close and fast in her car when they left work; 5. on July 2, 2015, CW stopped what she was doing to listen to Complainant every time Complainant began to speak; 6. on July 8, 2015, Supervisory Program Specialist (SPS) accused Complainant of wearing too much perfume; 7. on July 17, 2015, SPS told the staff members they were only allowed to take 30 minute lunches and two 15 minute breaks; although past practice had been 1 hour lunches; 8. on July 24, 2015, the Timekeeper, told Complainant in a rude voice, "I am doing time cards now, so you have 2 minutes to get it in (leave)"; and, 9. on August 3, 2015, SPS issued Complainant a Written Counseling. On December 11, 2015, the Agency issued its final decision. The Agency stated that it had counseled Complainant on numerous instances that her formal complaint would be dismissed if no covered basis was identified. The Agency determined that Complainant had not alleged a basis for her claims. Therein, the Agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(1), for failure to state a claim, finding that Complainant had failed to allege a basis of discrimination (i.e. race, sex, age, national origin, color, religion, and reprisal for prior EEO activity) that would fall within the purview of EEO law and regulations. The instant appeal followed. On appeal, Complainant contends that she provided the Agency with all the relevant information, but that half of the information provided had not even been addressed in the final decision. Complainant contends that she sent the Agency information about alleged sexual harassment, and hostile work environment that she endured, and yet none of it was discussed in the final decision. Complainant provided documentation to support her contention that she had previously raised her claims of sexual harassment. The Agency contends that Complainant's claims of sexual harassment are being claimed for the first time on appeal. The Agency contends that it properly dismissed the formal complaint for failure to state a claim because she had previously failed to provide a basis for her allegedly discriminatory treatment. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). A fair reading of the subject claims reflects that Complainant has alleged a justiciable harassment claim on a covered basis. We acknowledge that the Agency has argued that Complainant had not provided a basis in her formal complaint. We acknowledge further that the record reflects that Complainant did not check off the appropriate box on the formal complaint form. However, she did inform the Agency of sexual harassment. We note for example, that the record contains a statement from Complainant that appears to be from Complainant's October 2015 mediation. There is no specific mention of sexual harassment. However, a portion of the document discusses an incident that Complainant had with a doctor (hereinafter referred to as D1) at the Medical Center. Complainant stated that the D1 asked a patient whether the patient and Complainant had a "flirtatious relationship." Complainant states that she informed another doctor (hereinafter referred to as D2) about what D1 had asked of the patient. Complainant states that she then had a meeting with D2, a union representative, and an Office of Resource Management employee (hereinafter referred to as ORM-E2) on October 21, 2015, regarding this incident. Complainant states that during this meeting, D2 also asked whether Complainant and a certain individual2 were more than friends. Complainant states that others in the Center attempt to make her friendship with the individual seem inappropriate, but that the relationship was nothing more than a friendship. Part of this document also contains a request from Complainant that read: The record contains correspondence sent from Complainant to two individuals in the Office of Resource Management (hereinafter referred to as ORM-E1 and ORM-E2), dated November 25, 2015, that states: The record as identified in detail above, reflects that even though Complainant did not check the appropriate box, she has indicated to individuals in management that she has been dealing with sexual harassment in the workplace. Moreover, upon review of the nine subject claims, we determine that Complainant as alleged a pattern of harassment, and has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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, Director Office of Federal Operations April 14, 2016 __________________ Date 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. 2 It is not clear from the record whether this individual is an employee or a patient at the Medical Center. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160920 2 0120160920