Eleni M.,1 Complainant,v.Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

May 25, 2018

0120161635 (E.E.O.C. May. 25, 2018)

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

Eleni M.,1
Complainant,

v.

Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120161635

Agency No. 200P06632015100174

DECISION

On April 13, 2016, 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
March 21, 2016, final decision concerning 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. For the following reasons, the Commission
VACATES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Supervisor, GS-7, for the Diagnostic Imaging Service at the VA Medical Center in Seattle,
Washington. During the relevant time, Complainant’s first line supervisor was the
Administrative Officer (S1) for Diagnostic Imaging. Her second line supervisor was the Chief of
Diagnostic Imaging (S2).

Complainant alleged that the Chief Technologist (Chief Tech) publicly made several derogatory
comments aimed toward a physician at the facility who had recently undergone gender
transformation surgery. Complainant claimed that the Chief Tech would state to a couple of the
guys that worked there, “How about I fix you up with a date with [Doctor A]” and “isn’t she
looking so fine now with her new big boobs.”

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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Complainant noted that the Chief Tech also made comments before staff meetings making fun of
Doctor A. Complainant stated when she heard the comments, she told the Chief Tech that it was
inappropriate and he needed to leave her working area. Complainant stated the Chief Tech did
not like that she said this when he was in front of her staff because it made him look bad.
Complainant stated she also took her concerns to S1 and that S1 told her S1 was not in charge of
the Chief Tech, but that she would speak to his direct supervisor (S2).

The Chief Tech stated that he never made such comments. He said the only comment he ever
made was regarding a letter sent out by Doctor A and he stated that “Wow, that took a lot of
courage to say that.”

Complainant stated that on April 21, 2014, while she was bending down to pick up a pen, the
Chief Tech referred to her buttocks as a “badonkadonk” and commented suggestively “while
you’re down there.” Complainant stated that “badonkadonk” meant a “nice ass.” Complainant
noted this was not the first time the Chief Tech had made comments in reference to her buttocks.
Complainant stated that he made both comments in front of her staff, and that she told him it was
inappropriate and that he had to leave. Complainant stated that Person 1 also told him it was
inappropriate and that he should never talk to anybody like that. Complainant noted that Person
1 and Person 2, her subordinate employees, wrote letters on her behalf regarding the Chief
Tech’s behavior.

The Chief Tech stated he “did say that about the pen” but once he said it, he immediately
apologized. The Chief Tech stated that Complainant told him not to worry about it and that she
knew he “didn’t mean nothing.” He stated the next day he saw Complainant walking by his
office, and he apologized again. He stated that Complainant said it was okay and that “You and I
are okay.” The Chief Tech said he never made the “badonkadonk” remark. The Chief Tech also
said that he mentioned a country song to Complainant called “Honky Tonk Badonkadonk” but
said he never meant anything by it. He said that in hindsight there may have been a
misperception there.

The record contains a letter dated April 22, 2014, from Person 1 stating that he has witnessed the
Chief Tech make comments about Complainant. Person 1 stated that on more than one occasion,
he heard the Chief Tech tell Complainant “she has a nice Badonkadonk butt” which he said
referred to a woman who has a big butt. Person 1 stated that on one occasion as he was talking
to Complainant as she bent down to pick up a pen she dropped, the Chief Tech made the
comment “while you are down there.” Person 1 also noted that on more than one occasion he
has heard the Chief Tech tell the MRI technologists that any problems they are having is because
Complainant is causing the problems. Specifically, he stated this comment was made about the
MRI worksheets filled out by the technologists.

The record contains an email dated April 22, 2014, from Person 2 to Complainant stating that
several times while working in Radiology, he has heard the Chief Tech make sexual comments
towards Complainant when she has repositioned, such as bent over, reached up, or stretched.
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Person 2 stated this has happened on numerous occasions and called the comments “completely
inappropriate.” Person 2 also stated there have been several times in which Complainant’s name
has been thrown around regarding who to blame, most of the time in the MRI suite.

In his affidavit, Person 1 stated he was present when the Chief Tech said that Complainant had a
“nice badonkadonk.” Specifically, he stated that the Chief Tech saw Complainant bend over and
said “wow, that’s a nice badonkadonk.” Person 1 said that meant she had a big butt. Person 1
said this was not the first time that the Chief Tech made sexual comments about Complainant.
He said that Complainant would be walking about and the Chief Tech would be talking about
what a big butt she has and what a nice butt she has. Person 1 said that the Chief Tech would
also make comments about other female coworkers in his unit when they would walk by.

Person 3 stated that she twice saw the Chief Tech say inappropriate things about Doctor A.
Person 3 explained that one incident occurred at the beginning of a staff meeting while there
were eight persons present. She did not remember what exactly was said, but she explained she
felt very uncomfortable with his statement. In addition, she stated that another time she
witnessed him saying something inappropriate about Doctor A’s breast size. When asked
whether other inappropriate comments were made by the Chief Tech about other female
employees, she stated that there have been some inappropriate comments, but she stated she did
not remember anything specific.

Person 4 stated that she has heard the Chief Tech make sexually suggestive comments towards
other women. However, Person 4 stated that she could not give specifics as it has been so long.
She did confirm that the comments were sexual in nature.

Complainant stated that after the incident on April 21, 2014, the Chief Tech’s behavior
continued. She stated that he continued to make comments that “if you were single and I was
single, you know you’d want to date me.”

The record contains a May 9, 2014 email from Complainant to S1 with the subject line
“inappropriate behavior.” Complainant states she is writing S1 regarding rude and sexual
misconduct by the Chief Tech. Complainant notes the Chief Tech has written her rude emails,
has disrespected her in front of the MRI Technologists (which her staff has witnessed), and made
disrespectful comments about her. Complainant notes the Chief Tech: made comments in front
of her staff regarding her butt; made a comment when she had to retrieve something in her desk
draw “while your down there;” numerous times commented to her, “If you only had a red dot,
then maybe [S2] would like you;” and made rude comments about Doctor A who had undergone
gender transformation surgery.

The record contains a Memorandum dated May 9, 2014, from S1 to S2 noting Complainant’s
concerns of inappropriate behavior and language by the Chief Tech. S1 noted that Complainant
also sent verifying documents and statements from Person 1 and Person 2, who witnessed the
alleged behavior.

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On May 13, 2014, S2 issued a Minimal Contact Notice between the Chief Tech and
Complainant, effective immediately. The Notice stated the minimal contact notice was
temporary pending a formal administrative fact-finding inquiry and/or a workplace assessment of
alleged incidents in April 2014. S2 stated he gave the Chief Tech a written counseling for which
he apologized and promised he would not continue to participate in such comments. The record
does not contain a copy of a written counseling issued to the Chief Tech.

Complainant stated in June 2014, she discovered that Person 2 was falsifying his overtime. On
July 9, 2014, Complainant sent an email to all her employees informing them they had to get
overtime pre-approved and that when they arrived to work overtime, they had to email
Complainant and the timekeeper and then email again when the overtime was completed.

On July 16, 2014, Person 2 reported to S1 that Complainant was having an extramarital affair
with Person 1 and providing favoritism to Person 1 because of the affair. On July 16, 2014, S1
interviewed Complainant and Person 1. Complainant claimed that the subordinate employee
falsified the report to S1 to get back at her for an issue regarding overtime requests and that she
never had an affair or provided favoritism to Person 1.

In August 2014, S2 ordered a Climate Assessment and Initial Fact-Finding regarding the recent
allegations of hostile work environment lodged in the Diagnostic Imaging Service. The
investigation was conducted by a neutral third party from a different service line in August 2014.

The record contains a September 18, 2014 Memorandum, from the Administrative Officer (AO),
Mental Health Service Line, to S2 regarding the Work Place Assessment and Preliminary
Administrative Fact Finding Inquiry. The Memorandum indicates the AO was the Fact-Finding
Management Official and that on August 20 – August 22, he interviewed the Chief Tech,
Complainant, Person 1 and Person 2. He stated that he found a “dysfunctional and unsupportive
workgroup” and noted a “lack, or disregard, of performance management standards and
leadership responsibilities which have led to a hostile working environment and a perception of
one instance of a prohibitive hiring practice.” The AO stated that he “concludes that the weight
of evidence from the above written statements and verbal confirmations during the personal
interviews is sufficient to reasonably infer that the inappropriate sexual comments made by [the
Chief Tech] constitute a hostile work environment.” Further the Fact-Finding Management
Official stated that he recommended “Disciplinary actions against [the Chief Tech] for
participating in and allowing a hostile work environment, specifically to the inappropriate and
demeaning sexual comments.” The Memorandum also addressed the allegation that
Complainant engaged in an inappropriate relationship with Person 1 and afforded him
advancement opportunities as a result. The Fact-Finding Management Official recommended
further research on this allegation.

On September 3, 2014, Complainant was subjected to an Administrative Investigation Board
(AIB) interview regarding the allegation that she engaged in a close personal relationship with a
subordinate employee, Person 1, and gave that employee preferential employment opportunities.
The record contains a transcript of the hearing proceeding on September 3, 2014.
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Complainant stated that on September 11, 2014, she was subjected to a second AIB interview
which she characterized as harassing. The record contains a September 11, 2014 email from
Complainant to the “HSS to the Deputy Director, VA Pugent Sound Health Care System” in
which Complainant requested to know who she could complain to regarding the AIB
interviewer. The HSS asked for more detailed information. In a September 15, 2014 response
email, Complainant stated that the interviewer, Board Member X, talked about how “sex crazed”
Complainant’s scheduling area was and he asked about their talk about “lesbian sex, how lesbian
dominate.” Complainant stated in her September 15, 2014 email that she told Board Member X
that she never witnessed this type of talk in her work area. Complainant stated she asked Board
Member X what this had to do with the allegations made by Person 2. Complainant explained
she suggested they stop the interview so she could seek legal counsel.

The record contains a letter from Complainant dated October 3, 2014, in which she states that the
interviewer on the second day of the AIB “twisted her words,” “engaged in a line of questioning
that was absolutely inappropriate,” and “attempt[ed] to punish her for filing sexual harassment
charges against the [Chief Tech].” Complainant stated that due to the punitive nature of the
second interview and the games played by the investigator, she was declining to sign the
interview conducted by the AIB.

In her affidavit, Complainant states that during the second AIB interview, Board Member X
asked about the size of her husband’s penis, talked about Person 2’s claim that staff members
spoke about porn and a “furry convention.” Complainant states that Board Member X asked her
if she knew what a “furry convention” is and she said she thought it was when people got
together in animal costumes. Complainant states that at this time Board Member X was on his
computer and turned his computer around and showed her pornography on what these “furry
conventions” are. Complainant states that when Board Member X brought up her husband’s
penis size, she threw her arms up and said they needed to stop the meeting and she thought she
needed to hire an attorney. Complainant claims she asked Board Member X what this had to do
with the type of harassment alleged. Complainant also states that Board Member X asked about
her birthday party. Complainant states her and a friend shared a hotel room and that Board
Member X asked if they went to the party expecting to have sex with each other and have orgies.

Complainant stated that on October 10, 2014, the Chief Tech stated that she has “always been a
pain in the ass.” Complainant stated that on October 20, 2014, the Chief Tech sent her and other
staff members an email in which he disparaged her communication skills.

Complainant stated that the Chief Tech “showed up” in her work area at the American Lake
campus of the Seattle VAMC on December 5, 2014, even though he was still under the May 31,
2014, Minimum Contact Order. The Chief Tech, S2, and another supervisory official stated that
it is not unusual for the Chief Tech to be in Complainant’s work area in order to perform his own
work duties.

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On January 16, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her. The Agency defined Complainant’s complaint as alleging that she
was subjected to sexual harassment and/or a hostile work environment based on sex (female)
and/or reprisal (prior EEO activity) when:

1. On an unspecified date, the Chief Technologist for Diagnostic Imaging (Chief
Tech) made inappropriate sexual comments whereby Complainant heard about a
coworker (Dr. A) who had a sex change;
2. On April 29, 2014, while bending over to pick up a pen, the Chief Tech referred
to Complainant’s buttocks as “badonkadonk” and commented suggestively,
“While you’re down there …”;2
3. On August 20, 2014, Complainant was subjected to a fact-finding inquiry which
proved that the basis of the inquiry was unfounded;
4. On September 11, 2014, Complainant was subjected to an Administrative
Investigation Board (AIB), even though the subject matter was previously proved
that the basis of the inquiry was unfounded by a fact-finding inquiry;
5. On October 10, 2014, the Chief Tech told Complainant she has always been a
pain in the ass;
6. On October 20, 2014, Complainant became aware that the Chief Tech sent an
email to staff and management accusing her of never communicating with him;
and
7. On December 5, 2014, the Chief Tech showed up unannounced after Complainant
requested a transfer to the American Lake facility, and obtained a Minimum
Contact Order against him.

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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

The Agency found Complainant presented evidence that she was subjected to verbal conduct of a
sexual nature when the Chief Tech stated on April 21, 2014, that she has a “badonkadonk” butt
and when he made the statement, “While you’re down there…” The Agency also found the
jokes the Chief Tech made about the physician’s gender transformation in March and April
2014, were sexual in nature because the evidence established that the Chief made statements
about the physician’s new feminine features. However, the Agency determined the Chief Tech’s
comments did not rise to the level of an objectively hostile work environment.

The Agency noted the tasteless comments made by the Chief Tech about the physician’s gender
transformation were made in front of several employees and were not directed at any of the

2 Although this incident is listed as occurring on April 29, 2014, Complainant stated the date was
listed incorrectly and that the actual date of the incident was April 21, 2014.
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employees present. The Agency found because the comments were not made about
Complainant, to Complainant, or for the purpose of intimidating or disparaging Complainant, or
Complainant’s protected class, and because the comments were few and infrequent as opposed to
many and regular, the comments about the physician were not sufficiently severe or pervasive to
create an objectively hostile work environment for Complainant.

The Agency found the comments made to Complainant by the Chief Tech on April 21, 2014,
were sexual in nature, but did not find the comments were sufficiently severe or pervasive to
create an objectively hostile work environment. The Agency stated the Chief Tech’s April 21,
2014 comments were unrelated to his previous comments about the physician. The Agency
stated the Chief Tech’s comments were isolated to April 21, 2014, and were not repeated
afterward. The Agency argued there was no evidence to establish that the Chief Tech made any
other sexual comments to Complainant or about Complainant. Thus, the Agency found the
statements made by the Chief Tech would not substantially affect the work environment of a
reasonable person from an objective standpoint.

The Agency noted Complainant also claimed sexual harassment when the Chief showed up at
her work station on December 5, 2014, although he was under a Minimum Contact Order. The
Agency found that the Chief Tech was under no obligation to avoid seeing Complainant due to
the Order. The Agency further found that the December 5, 2014 incident did not constitute an
act of sexual harassment or a failure by management to put a stop to the sexual conduct by the
Chief Tech. Rather, the Agency claimed the sexual conduct ended after Complainant’s report to
S1 in May 2014.

Regarding Complainant’s claim of harassment based on sex and/or reprisal, the Agency noted
Complainant belongs to the protected classes based on her sex and her prior EEO activity, which
included reporting her allegations of sexual harassment to S1 at the beginning of May 2014.
However, the Agency found Complainant failed to present evidence that she was subjected to
unwelcome personal slurs or other denigrating or insulting verbal or physical conduct based on
her protected classes.

The Agency noted Complainant claimed she was harassed based on her sex and in reprisal for
her prior EEO activity when she was the subject of a fact-finding inquiry regarding her alleged
affair with a subordinate employee and then subjected to an AIB regarding her alleged affair and
allegations that she provided favoritism due to her alleged affair. The Agency found the
evidence established that Complainant was subjected to the fact-finding and the AIB because one
of her subordinate employees reported that she was engaged in illicit behavior, not due to
management bias against her based on her sex or prior EEO activity.

The Agency noted Complainant claimed she was harassed based on her sex and prior EEO
activity when the Chief Tech told her she has always been a “pain in the ass” and when he wrote
an email disparaging her communication skills. However, the Agency found that she provided
no evidence by which a nexus could be identified between the stated alleged incidents and
Complainant’s sex or prior EEO activity.
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On appeal, Complainant notes the Agency admits the comments occurred, and asserts that the
Chief Tech repeated comments/jokes that were sexual in nature. Complainant argues the Agency
wrongly claims that the offensive comments do not rise to the level of an objectively hostile
work environment. Complainant claims the comments were erroneously described as few and
infrequent. Complainant claims the Agency ignored that demeaning discriminatory references
both in and outside the presence of an employee can be used as support for a finding of
discrimination. Complainant also notes that in the right circumstances even a single instance of
severe verbal abuse of a coworker in front of other employees can be held as sexual harassment.
Complainant claims the record is permeated with evidence of repeated severe sexually harassing
comments/behavior that were humiliating and offensive and that demonstrably interfered with
Complainant’s work performance.

Complainant claims the Agency ignored the fact that coworkers also heard sexual comments
made by the Chief Tech. Complainant cites the statements by Person 1, 2, 3, and 4.
Complainant states the offensive sexual comments by the Chief Tech had been going on for five
to seven years. Complainant notes that Person 1 stated that Complainant put up with sexual
harassment for years.

Complainant states that in addition to the sexual harassment by the Chief Tech she was required
to endure a sexually derogatory interrogative commentary by the AIB on September 16, 2014.3
Complainant states that Board Member X talked to her about “furry conventions” while showing
her pornography and talked about her husband’s penis size. Complainant states that she was
extremely frustrated with the content of the inquiry and advised him that the interview was over
and that she was going to an attorney. Complainant notes that after the repeated sexual
commentary and harassment by the Chief Tech and a pervasive sexually offensive work
environment, and after the sexually derogatory interrogative commentary by Board Member X,
she sought refuge from the repeated sexual harassment by requesting permission and receiving
approval for a detail to American Lake. Complainant states that, instead of it being a refuge, the
Chief Tech came to American Lake to harass her further. Complainant claims that only after she
contacted the Office of Resolution Management to complain informally of sexual harassment on
October 9, 2014, and after enduring additional harassment on October 10, 2014, and October 20,
2014, did the Agency remove the Chief Tech and place him in a geographically different location
from Complainant on December 16, 2014.

Complainant notes that she was interviewed by the AIB a second time in September 2014, and at
that time Board Member X engaged in sexually offensive comments. She states that he asked
Complainant what size her husband’s penis was, showed her pornography on a laptop related to a
“furry convention,” and accused her of wanting to have sex at a birthday party. Complainant
claims these allegations were never investigated or answered by the Agency.

3 On appeal, Complainant lists the second AIB meeting as occurring on September 16, 2014;
however, during the investigation she stated the meeting occurred on September 11, 2014.
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Complainant also notes that the transcript of the second meeting or a recording of the second
meeting was not made part of the record. Complainant contests the AIB investigation combining
the claims of her alleged affair with her sexual harassment claims against the Chief Tech.
Complainant argues that by including these totally independent claims together in the AIB, and
by engaging in offensive sexual questioning, the AIB investigation is shown to have been
engaging in continuing sexual harassment and retaliation. Complainant requests that at a
minimum, the Agency should be required to immediately produce a transcript or recording of the
second AIB meeting. Complainant argues that she has presented an unrebutted claim that the
actions taken by the AIB officials were retaliatory and a continuation of the sexual harassment.

In response to Complainant’s appeal, the Agency states its previous decision thoroughly and
accurately detailed the relevant facts and applied the appropriate legal standards to those facts.
The Agency notes that Complainant in her appeal, claims the Agency wrongly concluded that the
Chief Tech’s repeated comments, witnessed by other employees, did not rise to the level of a
hostile work environment. The Agency recognizes that Complainant further alleges that the
Agency incorrectly decided that steps taken to correct the alleged harassment were adequate.

The Agency states its decision addressed Complainant’s claims regarding sexual comments
made by the Chief Tech on April 21, 2014, statements made in March and April 2014 regarding
the physique of a physician who was undergoing gender transformation, and the Chief Tech’s
presence in Complainant’s work area on December 5, 2014, despite a Minimum Contact Order
being in place. The Agency argues it correctly determined that the Chief Tech’s April 21, 2014
comments were isolated and not repeated thereafter. The Agency also states the comments
regarding the physician were not severe or pervasive, in as much as the comments did not occur
frequently. Moreover, the Agency states the comments were not directed at Complainant and the
Chief Tech did not intend to intimidate or disparage Complainant by making the comments.

The Agency also claims Complainant’s nonsexual harassment claims fail to meet the hostile
work environment standards. The Agency states it initiated a fact-finding investigation because
it was reported that Complainant was engaged in illicit behavior. The Agency argues that the
incidents where the Chief Tech allegedly disparaged Complainant’s communication abilities and
described her as “a pain in the ass,” cannot be linked to Complainant’s protected classes.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, (EEO MD-110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
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EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an
impartial and appropriate factual record upon which to make findings on the claims raised in the
complaint. The Commission's regulations explain that an appropriate factual record is one that
allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.

We note the Agency has an affirmative obligation to ensure that its employees cooperate with the
investigation into the complaint. See EEO MD-110, at Ch. 6, § III.A (“The Director of Equal
Employment Opportunity shall ensure that . . . all employees of the agency cooperate in the
investigation”). EEO MD-110 further provides that “[p]ursuant to 29 C.F.R. § 1614.108(c)(3), a
party to a complaint - the complainant as well as the agency - may be subject to sanction where it
fails without good cause shown to respond fully and in a timely fashion to a request of the
investigator for documents, records, comparative data, statistics, affidavits, or the attendance of
witnesses.” Id. § XI.

Upon review, the Commission finds that the investigation was inadequate and that the record
lacks the thoroughness required for the fact finder to address the ultimate issue of whether
discrimination or harassment occurred. We note that during EEO counseling Complainant
raised, among other claims, that on September 11, 2014, she was called before the AIB board for
questioning about Person 2’s allegations, and that Board Member X questioned her about having
a sexual relationship with Person 1. Complainant stated that Board Member X harassed her
during questioning by making inappropriate sexual comments regarding her husband.
Complainant also stated that she felt the AIB Board was convened in retaliation for having
reported sexual harassment in April 2014. In the January 6, 2015 Notice of Right to File, the
Agency again identified this incident as one of the claims raised by Complainant and noted that
Complainant stated the AIB transcript contained evidence of such harassment by Board Member
X. As an attachment to her January 16, 2015 formal complaint, Complainant’s cover letter noted
that the supplemental AIB “substantially heightened the level of harassment” against her and
“subjected her to questions about her husband’s penis size.” On her complaint form,
Complainant identified September 11, 2014 as the date of the occurrence of the most recent
incident of discrimination. Complainant included a copy of the January 6, 2015 Notice of Right
to File, containing the incident regarding the second AIB investigation.

We note the Agency did not address Complainant’s contention that she was subjected to
continuing harassment as a result of the second AIB investigation in September 2014. A review
of the record reveals that during both EEO counseling and in her formal complaint, Complainant
raised a claim that she was harassed during the second AIB interview conducted by Board
Member X. We note that when the Agency accepted Complainant’s complaint and defined
accepted claim (4) as alleging, “On September 11, 2014, Complainant was subjected to an AIB,
even though the subjected matter was previously found to be unfounded by a fact-finding
inquiry,” it was reasonable for her to believe that the alleged harassment by Board Member X
was part of claim (4). While Complainant describes some information regarding the second AIB
investigation in her affidavit, we note the Agency did not interview Board Member X or provide
a copy of the hearing transcript for the second day of the AIB interview.
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Thus, we find Complainant’s complaint should be remanded for further investigation. The
Agency is reminded to consider the entirety of Complainant’s harassment claim on remand.
Specifically, Complainant alleges that she was subjected to repeated sexual harassment by the
Chief Tech and a hostile work environment, and also claims she was subjected to sexual
harassment by Board Member X. Complainant states that she sought refuge from the repeated
harassment by requesting permission and receiving approval for a detail to American Lake.
However, Complainant states that instead the Chief Tech came to American Lake to retaliate and
harass her further.

Moreover, we note that the record contains a Memorandum to the File dated August 20, 2015,
from the EEO Investigator regarding his attempts to obtain a statement from Person 2. The
investigator stated that Person 2 was scheduled to for a telephonic interview, but failed to keep
his appointment. The investigator noted that subsequent emails and telephone messages to
Person 2 went unanswered to reschedule his interview. The investigator notes that two telephone
calls to the EEO point of contact also went unanswered. No affidavit from Person 2 is in the
record. In the present case, we find the investigative record is not adequately developed to
evaluate Complainant’s EEO complaint. Accordingly, based on the foregoing, we remand this
complaint to the Agency for a supplemental investigation consistent with this decision and the
Order herein.

CONCLUSION

Accordingly, the Agency’s final decision is VACATED and the complaint is REMANDED to
the Agency for further processing in accordance with the Order herein.

ORDER

Within 60 days of the date this decision is issued, the Agency shall take the following actions:

1. The Agency shall provide an affidavit or declaration from Person 2 regarding
Complainant’s allegations.
2. The Agency shall provide an affidavit or declaration from Board Member X
regarding Complainant’s allegation that she was harassed during the second AIB
interview.
3. The Agency shall obtain affidavits or other declarations from any other Agency
personnel who are able to provide relevant information regarding Complainant’s
specific allegation that she was harassed during the second AIB interview.
4. The Agency shall produce a copy of the transcript from the second AIB proceeding.
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5. The Agency shall provide to Complainant a copy of all the materials placed into the
record pursuant to this Order.
6. Complainant shall have the opportunity to submit rebuttal affidavit(s).
7. The Agency shall issue a new final decision on the merits of Complainant’s
complaint.
8. A copy of the additional evidence obtained pursuant to this Order and a copy of the
new final decision shall be sent to the Compliance Officer as referenced herein.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via
the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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),
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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 (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.

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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

May 25, 2018
Date