EEOC Appeal 2020001674

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lashawna C,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001674
Agency No. 2003-0554-2019104587
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (FAD) dated November 21, 2019, 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 a Chief Social Worker,
GS-14, at the Agency’s Eastern Colorado Healthcare, Rocky Mountain Regional Medical Center,
facility in Aurora, Colorado.
On October 17, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the basis of sex (female) when:
1. 	Beginning in October 2018, the Chief of Staff (CS), the VISN 19 Community Care
Manager (CCM), and the VISN 19 Business Implementation Manager (BIM),
assigned complainant the Contract Nursing Home (CNH) program without proper
training and knowledge; and
2. 	On May 29, 2019, CS issued Complainant a notice of poor performance.
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.

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The Agency dismissed the claims for untimely EEO Counselor contact2 and for failure to state a
claim.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.107(a)(4) an agency shall dismiss a complaint where the
Complainant has raised the matter in an appeal to the Merit Systems Protection Board (MSPB)
and where, as here, Section 302 shows Complainant has elected to pursue the non-EEO process.
On September 16, 2019, Complainant filed an appeal with the MSPB challenging her September
13, 2019 removal for poor performance. See Complainant 	v. Dep't of Veterans Affairs, MSPB
No. DE-0714-19-0443-I-1, 2020 WL 290802 (Jan. 17, 2020). On appeal, the Agency argues that
the matter of her notice of poor performance is inextricably intertwined with her removal for poor
performance. We agree that the matter addressed in claim 2 merged with the subject matter of her
MSPB appeal and hence we find that claim 2 must be dismissed.
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). When the complainant does not allege he or she is aggrieved within the meaning
of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to
29 C.F.R. 1).
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.
Thus, not all claims of harassment are actionable. Following a review of the record we find that
being assigned a challenging work program is not an action sufficiently severe enough to state a
claim of harassment.
CONCLUSION
The FAD is AFFIRMED.
2 On appeal, the Agency acknowledges that the dismissal due to untimely EEO Counselor contact
was “procedural error” and that Complainant’s Counselor contact was timely.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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.

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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
June 24, 2020
Date