U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zonia C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120161120 Agency No. 200406522015104621 DECISION Complainant timely appealed to this Commission from the Agency's December 17, 2015 dismissal of 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Support Assistant within the Education Service Line at the Hunter Holmes McGuire VA Medical Center in Richmond, Virginia. On October 26, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (biracial, Native American), sex (female), age (over 40), and reprisal for prior protected EEO activity (EEOC Case No. 430-2013-00372X (Sept. 4, 2015)) when: 1. On July 20, 2015, Complainant's supervisor ("S1") yelled at her, pushed her hand off of her computer mouse to gain access to work data, and denied her request for 5 minutes to "gather herself." 2. On July 24, 2015, S1 gave Complainant a Letter of Coaching for showing up to a staff meeting late. Complainant's prior complaint, EEOC Case No. 430-2013-00372X, was pending before an Administrative Judge when the alleged discrimination in the instant complaint occurred. Complainant's prior complaint named S1 in a number of alleged discriminatory acts from 2010 through 2013. On July 2, 2015, S1 was called to testify on Complainant's claims, three weeks before the alleged discriminatory acts in the instant complaint. Complainant alleges that after the hearing, S1 acted angrily toward her. In September 2015 an Administrative Judge issued a finding of discrimination and hostile work environment and awarded damages to Complainant. Complainant believes the two claims at issue resulted from S1's alleged anger toward her after the July 2, 2015 testimony. Specifically, on July 20, 2015, Complainant alleges that S1 stood over her, yelled at her and accused her of not working on a spreadsheet; then pushed Complainant's hand off of her computer mouse and copied data onto the spread sheet Complainant had been working on. Complainant's heart was racing due to S1's alleged yelling and she requested a few minutes to gather herself, but S1 refused. Then, S1 issued Complainant a letter of coaching on July 24, 2015, when Complainant arrived late to a meeting because she had been helping a customer. Complainant states that S1 told her that she should have taken the customer's number and called back after the meeting, however, Complainant still felt the letter of coaching was unwarranted, since she helped a customer. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. ANALYSIS AND FINDINGS EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994) 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 (April 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 Taylor v. United States Postal Serv., EEOC Appeal No. 0120060151 (June 6, 2007) The alleged discriminatory acts took place while Complainant's prior complaint was under review by an EEOC Administrative Judge. Further, S1 was named and involved as Complainant's alleged harasser for a three year period. In this context, we find that S1's behavior toward Complainant, in Claim 1, specifically, making physical contact and intimidating her to the extent that her heart was racing, is reasonably likely to deter Complainant or other employees from engaging in the EEO Process. Likewise, S1's decision to issue Complainant a letter of coaching could have long term implications for Complainant's personnel record and if issued as retaliation, could deter employees and Complainant from engaging in the EEO Process. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is ordered to process the remanded claims in accordance with 29 CF.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 becoraes final. The Agency shall issue to Compiainanl 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 requesis a final decision withoui a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy oflhe Agency's letter of acknowledgment to Complainant and a copy of the nofice 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 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 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 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. "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 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 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 0120161120 5 0120161120