Bess S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019003355 (E.E.O.C. Sep. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bess S.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019003355

Hearing Nos. 510-2016-00331X & 510-2019-00151X

Agency No. 200I-0546-2015105642

DECISION

On April 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
April 4, 2019, final order dismissing her equal employment opportunity (EEO) complaint
alleging 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. 2 For the following reasons, the
Commission VACATES the Agency’s final order dated April 4, 2019, and REMANDS the
complaint to the Agency for issuance of a final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Consult Manager,
GS-11, at the Agency’s Miami VA Health Care System (also known as Miami VAMC) facility
in Miami, Florida.

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 filed two appeals to this Commission on April 26, 2019. The other appeal,
docketed as EEOC Appeal No. 2019003399, was a duplicate of this appeal regarding Agency
No. 200I-0546-2015105642 and was administratively closed on July 30, 2019.
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On October 25, 2015, Complainant filed an EEO complaint alleging that the Agency subjected
her to harassment and discriminated against her on the bases of race (Caucasian), age (53), and
reprisal when:3

1. In October 2012, the Medical Administrative Officer (MAO) "manipulated and
bullied" Complainant into leaving the West Palm Beach VAMC, made
"derogatory remarks" about her, and told her people didn't like her because it is
perceived that she thinks she is better than them.
2. In October 2012, MAO denied giving Complainant a second interview for the
VISN 8 internship program and the opportunity to train within the VA.
3. In November 2012, MAO selected another individual for the internship program,
one who had worked in the VA for only a year and had no prior experience in
healthcare.
4. In February 2013, MAO selected yet another individual for the internship
program.
5. During a meeting in April 2014, MAO told Complainant and a coworker she
"wasn't there to hold (their) hands" and let them know they "are on (their) own."
6. In June 2014, MAO placed two interns from the West Palm Beach VAMC into
supervisory positions without offering the positions to Complainant or her
coworker.
7. In June 2014, MAO temporarily assigned Complainant to a position outside of the
Miami VAMC for a period of three months.
8. In June 2014, MAO replaced the Assistant Ambulatory Care Chief with one of the
interns rather than offering the opportunity to Complainant.
9. After drafting the Medical Administration Service (MAS) organizational chart in
August 2014, MAO did not share the chart with Complainant for approximately
five to six months.
10. MAO kept Complainant out of all MAS meetings and off all MAS
correspondence between August - December 2014.
11. Between August - December 2014, MAO made the following derogatory and
downgrading comments to Complainant: "You don't know what the hell you are
doing. I have no idea where to place you because you don't know anything. You
think you're better than everyone here. Who the hell do you think you are? No one
here likes you. You need to leave!"

3 In the Notice of Partial Acceptance of EEO Complaint, Agency Case No. 2001-0546-
2015105642, the Agency informed Complainant that incidents 2, 3, 4, 6, 7, 8, 12, 13, 14, and 16
constituted discrete acts that were not raised with an EEO Counselor within 45 days of
occurrence. As a result, these incidents were dismissed as independently actionable claims
pursuant to 29 C.F.R. §1614.107(a)(2) for failing to comply with the 45-day time limit. These
alleged incidents, however, were determined by the Agency to be sufficiently related to the
overall pattern of harassment and will be included for consideration in the analysis of
Complainant’s overall harassment claim.
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12. On January 5, 2015, MAO began assigning Complainant special projects with
lower grade responsibilities.
13. In February 2015, MAO assigned the Chief of Health Information Management
Service (HIMS) to oversee Ward Administration without announcing the
availability of the position.
14. In April 2015, MAO assigned an employee to the MAS training position without
announcing the availability of the position.
15. Since May 22, 2015, when she received the results of a Whistleblower fact-
finding investigation, MAO has not spoken to Complainant.
16. In June 2015, MAO assigned Coworker One as Acting Chief of HIMS without
offering Complainant an opportunity to fill the position.
17. In August 2015, MAO assigned another employee as Acting Chief of Ambulatory
Care without announcing the opportunity for training.
18. On September 16, 2015, MAO changed Complainant's position description (PD)
without her knowledge or consent.
19. On September 25, 2015, after declining a directed reassignment (effective
October 4, 2015), Complainant was threatened with administrative action and
informed that she might be removed.
20. On October 26, 2015, MAO and the Chief of HIMS attempted to force
Complainant to sign an agreement for a Consult Management position.
21. On November 17, 2015, MAO informed Complainant that she would be moved to
the MAS Suite, effective December 1, 2015.
22. On December 4, 2015, Coworker One repeatedly stopped by Complainant's
cubicle, asked where she was, and repeatedly called her on the phone to force her
to attend a meeting.
23. On December 13, 2015, Complainant received another harassing email from
Coworker One, in which she again requested that she move into the MAS Suite
near MAO.
24. On December 14, 2015, Coworker One issued Complainant a counseling
statement for refusing to move into the MAS Suite near MAO.
25. On December 22, 2015, Complainant received a reprimand for being
insubordinate.
26. On December 30, 2015, Complainant received another harassing email directing
her to move into the MAS Suite by January 5, 2016.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but
subsequently signed a Joint Voluntary Dismissal Without Prejudice, which the AJ issued on
February 1, 2017. As provided in the motion put forth by the Agency and Complainant, the AJ’s
dismissal order stated Complainant had additional EEO complaints (Agency No. 200I-0546-
2016105251 and 200I-0548-2017100657) that are like and related to Agency No. 200I-0546-
2015105642 and are at varying stages of processing by the Agency.
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The order also reiterated the joint motion that Complainant had a pending personnel action that
could result in a decision that is appealable to the Merit Systems Protection Board (MSPB), and
if so, Complainant may choose to assert her claims of discrimination before that forum. The
order stated the statute of limitations on Complainant’s current complaint before the AJ would be
tolled until the additional EEO complaints are ripe for litigation and all claims could be brought
together. Based on this stipulation, the AJ dismissed Complainant’s complaint, Agency No.
200I-0546-2015105642, from the hearings process without prejudice to refile.

Thereafter, Complainant filed multiple motions to reopen her complaint before another AJ
assigned to her other two complaints that were pending in the hearing process.4 In issuing an
order on the motions, the AJ noted all motions were virtually identical and repeated the same
requests.5 The AJ found Complainant failed to identify good cause for her extensive delay in
requesting to reopen this complaint and Complainant failed to comply with the instructions
provided in the previous AJ’s order dated February 1, 2017. The AJ denied Complainant’s
request to reopen this complaint and dismissed it from the hearings process on March 29, 2019.
Thereafter, the Agency issued a final order, dated April 4, 2019, adopting the AJ’s dismissal.

Complainant filed the instant appeal and argues this Commission should reverse the AJ’s
dismissal and reopen her complaint for hearing and consolidation with her other two
complaints.6

ANALYSIS AND FINDINGS

In this case, we agree the AJ exercised proper discretion to dismiss Complainant’s complaint
from the hearing process. In the AJ’s order dismissing the complaint from the hearing process, it
is noted, while the Order on Joint Motion for Dismissal Without Prejudice did not state a specific
timeframe for Complainant to refile, by any logical reading of that sentence and by any
definition of the word "ripe," the time had long since passed. Complainant filed requests for
hearing on her other two complaints in July 2017. However, she did not file a motion to reopen
the complaint at issue until December 2018, at the earliest.

4 Complainant filed motions seeking to reopen Agency No. 200I-0546-2015105642 and
consolidate that complaint with her other two complaints pending before an AJ at that time.
Complainant’s motions were dated December 10, 2018, February 20, 2019, February 28, 2019,
and March 15, 2019.
5The new AJ assigned to Complainant’s two other pending complaints issued two orders on
Complainant’s motions to reopen in order to address all motions filed by Complainant. This
Commission will reference the latter order, dated March 29, 2019, as the AJ incorporated the
March 27, 2019 order by reference therein.
6 This Commission notes that after Complainant filed the instant appeal, on June 21, 2019, the
AJ assigned to her other two complaints issued orders adjudicating both complaints. See EEOC
Hearing No. 510-2017-00427X and 510-2017-00428X. There is no indication any Agency
decisions have been issued concerning these two complaints and Complainant has not filed an
appeal regarding the AJ or Agency decisions for these two complaints.
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The AJ noted Complainant provided no explanation for why she did not make the motion to
reopen the complaint contemporaneously with her hearing requests on the other two complaints
which were the subject of the joint dismissal in February 2017. We agree with the AJ that
Complainant failed to identify good cause for this extensive delay, and for her failure to comply
with the instructions provided by the previous AJ in his Order on Joint Motion for Dismissal
Without Prejudice did not warrant reopening her hearing request.

However, after the complaint was dismissed from the hearing process, the Agency failed to
address the complaint and merely adopted the AJ’s dismissal of the complaint from the hearings
process. While the complaint was dismissed from the hearings process, the complaint itself was
not dismissed. The Agency failed to issue a final decision either dismissing the complaint
pursuant to some appropriate grounds under 29 C.F.R. § 1614.107 or addressing the merits of the
claims in the complaint. We shall remand the complaint so the Agency may issue a new decision

CONCLUSION

Accordingly, this Commission VACATES the Agency’s final order dated April 4, 2019, and
REMANDS the matter to the Agency for a final decision pursuant to 29 C.F.R. § 1614.110 et
seq. and the Order set forth herein.

ORDER

Within 60 days of the date this decision is issued, the Agency shall issue a new decision on
Agency No. 200I-0546-2015105642 pursuant to the findings in this decision in accordance with
29 C.F.R. § 1614.110 et seq. A copy of the new Agency decision shall be sent to the
Compliance Officer as referenced herein.

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).
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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 CFR § 1614.503(f) for enforcement by that agency.
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).
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 11, 2019
Date