0120161325
04-04-2017
Randolph T.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randolph T.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120161325
Agency No. 2003-0331-2015105280
DECISION
On February 29, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 1, 2016, dismissing his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked part-time as a Program Support Assistant, GS-6 with the Agency's Support Services Division (SSD), St. Louis Regional Office in Missouri. Part or of his job is mail room duties. Related to his military service, Complainant received educational veteran benefits, which included being assigned to vocational rehabilitation counselor (VRC 1) who provided counsel and authorized his school to bill Veterans Affairs for his tuition and books. Like Complainant, VRC 1 was located at the St. Louis Regional Office.
On December 8, 2015, Complainant filed a formal complaint alleging that the Agency harassed him based on his race (Black), sex (male), disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1) On July 16, 2015, he was told by Co-worker 1 of SSD, who paid vocational rehabilitation invoices, that she learned from her supervisor/Assistant Chief (S1 - SSD) that the Regional Office's Chief of Vocational Rehabilitation and Employment (VR&E) (Manager 1) complained to S1 that Co-worker 1 and Complainant had a sexual relationship;
2) On July 16, 2015, VRC 1 removed herself from being his VR&E counselor and his veterans benefits case was transferred to Wichita, Kansas, and
a) He was not contacted by his new vocational rehabilitation counselor out of Wichita, Kansas until March 3, 2015, and when she did so she told him his file did not have any pertinent dates needed for his benefits;2
b) Because of the above delay, he did not have everything he needed when he was attending classes so he eventually withdrew from them to allow a fresh start;
3) On several occasions from July 16, 2015 to August 3, 2015, he was followed into the VR&E office by a certain security guard when he picked up and delivered mail there; 3
Complainant wrote in his complaint that he gave testimony for Co-worker 1's EEO complaint about being accused of having a sexual relationship with him.
In a fact-finding investigation, VRC 1 stated that she was assigned Complainant's case in April 2015, because he already had every vocational rehabilitation counselor in the Regional Office. She said Complainant did not keep his appointments and instead followed her to her car or showed up without appointments.
On July 16, 2015, Complainant saw VRC 1 about his laptop not working, which he contends he needed to effectively attend his classes that started in July 2015. VRC 1 advised Complainant that because his laptop was not three years old, he did not qualify for another laptop - it was still under warranty. She stated he angrily responded "this is some bullshit." Complainant stated that VRC 1 told him that he had to get the laptop repaired on his own and she would look at VR&E reimbursing him, and when he said he did not have the funds VRC 1 replied this was all she could do. Complainant contends that he then asked VRC 1 about other VR&E benefits and she was not helpful.
On July 16, 2015, Complainant visited Co-worker 1 and complained about the service he got from VRC 1. VRC 1 stated she overheard Complainant saying her name to Co-worker 1 and Co-worker 1 saying "Aw, hell no she ain't going to do that." VRC 1 stated that right after this she told Manager 1, her superior, that she no longer wanted Complainant's case. She explained that she did so because he visited her without appointments, followed her to her car, and Co-worker 1 and Complainant's relationship, and she gave Manager 1 some or all these reasons.4 VRC 1 wrote that Co-worker 1 has followed and taken pictures or filmed her inside the building.
Manager 1 stated that after overhearing the above conversation VRC 1 told her she did not think it was right for Co-worker 1 to coach veterans, she was seeing Complainant, and because of his interactions with VRC 1 and there being no other local vocational rehabilitation counselors to take Complainant's case, it was transferred to Wichita. Manager 1 stated that after speaking to other employees Complainant demanded benefits and got abusive with VRC 1. S1 wrote that Manager 1 complained to him that she had a problem with Co-worker 1 coaching an employee who was her boyfriend on what he should claim for his vocational rehabilitation education benefits.5 VRC 1 stated that she did not know anything about an alleged sexual relationship.
Co-worker 1 stated that on July 16, 2015, S1 relayed Manger 1's complaint to him, including the alleged sexual relationship. On July 23, 2015, after Complainant's VR&E veterans benefits case was transferred to Wichita but before they contacted him, VRC 1 emailed Complainant that the authorization was already sent to his school so he should be able to attend his classes and get his books with no problems.
The Agency dismissed the complaint for failure to state a claim. The Agency reasoned that issue 2 related to the administration of veterans benefits for the vocational rehabilitation program, not to an employment policy or practice. On issues 1 and 3, the Agency reasoned that these matters do not rise to the level of actionable harassment.
On appeal, complainant writes, by and through his representative, that his reprisal claim is that he was retaliated against for giving testimony for Co-worker 1's EEO complaint filed on or about July 2015.
Complainant contends that the St. Louis vocational rehabilitation counselors provided him academic and career guidance to meet criteria to receive assistance to attend college in St. Louis, that due to his learning disability he needs this service to be local and hands on, and the counselors in Wichita are not familiar with St. Louis, resulting in him losing opportunities to attend college or have career enhancements there. He writes that the Director of the St. Louis Regional Office transferred all in-house employee VR&E casefiles to Wichita.
Complainant argues that issues 1 and 3 rise to the level of actionable harassment. In the fact- finding investigation, Complainant stated that on July 16, 2015, when he spoke to local VRC 2 about his case being moved to Wichita she said this was because he was accused of having a "relationship" with Co-worker 1 who they felt would lean on them. VRC 2 stated Co-worker 1 told her of the accusation. Complainant wrote in the fact-finding investigation that his reputation was tarnished by Manager 1 accusing him of sleeping with Co-worker 1, and in his complaint expressed fear that his advancing in the workplace could be impacted from the accusation made by VR&E employees.6
In opposition to the appeal, the Agency requests that the FAD be affirmed. The record does not reflect who was the Complainant's supervisor.
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department 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. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004, at 31 - 33 (Aug. 25, 2016). This includes retaliatory action that has no tangible effect on employment, or even that takes place exclusively outside of work, such as disparaging the person to others in the media. Id., at 35.
Applying the above law, we find that issue 2 fails to state a claim. As found by the Agency, issue 2 does not regard a term, condition, or privilege of employment. We understand, regarding Complainant's reprisal claim, that covered retaliatory acts include any action that might well deter reasonable individuals from engaging in protected EEO activity - including interfering with his receipt of his service veterans' educational benefits. But here, Complainant is not contending that reprisal occurred in the context of the Agency as employer. Rather, he is contending that in the role of being a provider of his veteran educational benefits VR&E officials spread rumors of his having a sexual relationship with Co-worker 1, and then after he testified about this for her EEO claim, VR&E in its above role retaliated against him by moving his VR&E veterans benefits case to Wichita resulting in a decline in the quality of service he received. He does not contend that the Agency, in its role of his employer, leaned on VR&E to transfer his benefits case to Wichita. Given these unique circumstances, we find that issue 2 fails to state a claim.
Issues 1 and 3 do not rise to the level of actionable harassment. Being surreptitiously followed a few times when picking up and delivering mail to VR&E by a guard who pretended to use a photocopier therein until Complainant left VR&E does not rise above the level of a minor annoyance and would not reasonably likely deter EEO activity. Complainant expressed fear that the rumor of his having a sexual relationship with Co-worker 1 could hinder his career enhancement. Certainly, if Complainant filed a complaint alleging that the Agency discriminatorily denied him a promotion or a significant career enhancing detail, this would state a claim. But the rumor of his having a sexual relationship, standing alone or with the guard manner, does not state a claim of harassment. Complainant recounted two incidents of his hearing the rumor - once directly from Co-worker 1, and once when VRC 2 said she heard he had a "relationship." He did not allege facts suggesting that his exposure to the rumor was sufficiently severe or pervasive to alter the conditions of his employment.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
April 4, 2017
__________________
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 Complainant contended that in early 2014, after he started working at the St. Louis Regional Office as a "work study," a previous vocational rehabilitation counselor wrongly dropped him from his benefits program or his educational benefits, explaining he was employed by the Agency in an entry level position (mail room). Complainant referred to this in his complaint, and wrote the matter was addressed in detail in an attached letter. On appeal, by and through his union representative, Complainant only discusses incidents which occurred from issue 1 forward (starting July 16, 2015). We find that Complainant's reference in his complaint to the early 2014 matter was background information, and we will not address it further here.
3 While Complainant wrote that the above events of July 16, 2015 occurred on July 15, 2015, the record strongly suggests the correct date was July 16, 2015. In a fact-finding investigation, Complainant stated that until he left the VR&E office the guard stood by the copier as if he was making copies.
4 While VRC 1 gave these reasons in the fact-finding investigation, she advised Complainant that his case was transferred to Wichita because he was an employee of the St. Louis Regional Office. Complainant stated that he did not believe this since other local employees had local vocational rehabilitation counselors.
5 Manager 1 wrote that he told Co-worker 1 that the purpose of his discussion with her was to get her side of the story, it was not a counseling session, and he agreed with her position that there was nothing wrong with assisting a fellow employee which is what they teach in "VA 101" - to help veterans who have questions or concerns.
6 On appeal, Complainant raises new allegations that due to the sexual relationship accusation, co-workers treated him in a standoffish manner and he was not assigned special projects nor temporarily promoted for career enhancement positions. He does not identify the co-workers, special projects, or denials of temporary promotion. Since these allegations were raised for the first time on appeal, we will not address them here.
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