Latoyia B.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 21, 2018

0120150957 (E.E.O.C. Feb. 21, 2018)

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

Latoyia B.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150957

Agency No. 200P-04422-013104348

DECISION

On January 10, 2015, 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
December 12, 2014, 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 Supply Technician,
GS-6, in the Sterile Processing Service at the Veterans Affairs Medical Center in Cheyenne,
Wyoming. Complainant’s supervisor (S1) was the Chief of the Sterile Processing Service.

On December 4, 2013, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (Asian), national origin (Korean), and in reprisal
for prior protected EEO activity when:

1. On April 15, 2013, her supervisor, Chief, Sterile Processing Service (SPS),
humiliated her in front of her coworkers and accused her of wasting government
money;

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.
0120150957

2
2. On May 29, 2013, her supervisor denied her request for permission to attend an
Asian History Month event and told her to use annual leave instead;
3. On May 29, 2013, during a staff meeting, her supervisor failed to act after
observing her coworker (Coworker 1) state in an angry manner: “You are a
trouble maker, nobody likes you and you make everyone mad,” and another
supervisor commented: “This is American, not Korea. You have to live the
American way.”;
4. On July 1, 2013, her supervisor issued her a written counseling;
5. On July 3, 2013, her supervisor denied her request for leave to care for her sister
on July 9, 2013;
6. On July 17, 2013, her supervisor failed to act when she reported that her coworker
(Coworker 2) got upset at her for cleaning in the Decontamination (DECON) area
and yelled at her: “Don’t put this shit here,” blaming Complainant for provoking
the altercation and stating: “Everyone complains about you;”
7. On July 22, 2013, her supervisor issued her a proposed admonishment;
8. On August 12, 2013, her supervisor rescinded the proposed admonishment, and
instead, issued her a proposed reprimand;
9. On September 10, 2013, the Associate Director, Patient Care Services, issued her
a Letter of Reprimand;
10. On September 19, 2013, a coworker (Coworker 3) accused Complainant of
assault;
11. On September 19, 2013, her supervisor smiled with joy as Agency police “took
her away;”
12. Effective September 20, 2013, her supervisor placed her in a paid, non-duty status
pending the outcome of an investigation regarding allegations of her assaulting an
employee;
13. On April 8, 2013, her supervisor sent her an email wherein she threatened to
discipline her if she failed to follow directions;
14. On November 1, 2013, her supervisor issued her performance appraisal for the FY
2013 rating period wherein her performance elements for Sterile Processing and
Customer Service were lowered from “Exceptional” to “Fully Successful;”
15. On November 1, 2013, her supervisor proposed to remove her from her Agency
position;
16. Continually, from July 2013, through December 2013, her supervisor instructed
her to return to her desk and “type back to her what she understood” from their
conversations;
17. Continually, from September 2011, through December 2013, her supervisor failed
to act after she reported various coworkers for screaming at her, making
demeaning and derogatory remarks about her accent, and making comments that
she should be fired and/or sent back to Korea; and
18. Continually, from September 2011, through December 2013, her supervisor
joined in the horseplay and laughed at her when various coworkers mocked her.

0120150957

3
In a February 6, 2014 Notice of Partial Acceptance, the Agency dismissed issues (4) and (5) as
independently actionable claims of discrimination and reprisal because they were not raised with
an EEO Counselor within the applicable 45-day time limit. However, the Agency retained issues
(4) and (5) as incidents related to Complainant’s overall harassment claim. The Agency
accepted issues (9) and (14) as timely raised discrete acts that are independently actionable
claims. The Agency noted events (9) and (14) were sufficiently related to the overall pattern of
harassment and will be included for consideration in the analysis of the harassment claim. The
Agency accepted Complainant’s overall harassment claim (issues (1) – (18)).

In a February 13, 2014 letter Complainant, through her attorney, responded to the Agency’s
Notice of Partial Acceptance. Complainant noted a correction to issue (3) by clarifying the
identity of Coworker 1 who made the first statement. Complainant also clarified that the second
statement was made by the Reusable Medical Equipment (RME) Coordinator in the Sterile
Processing Service (SPS) Department (instead of another coworker as previously listed).
Additionally, Complainant stated that there was another incident on November 18, 2013, in
which Coworker 1 hit a man named Person X, as Person X was walking into the breakroom.
Complainant stated that an eyewitness, Person Y, was asked by S1 to write an incident report
about what she observed, but the police were not called and Person X was not removed from his
employment on either administrative leave or otherwise. Complainant claims the manner in
which this incident was handled, when there were witnesses to the incident, further highlights the
discriminatory conduct directed towards Complainant and the hostile work environment to which
she has been subjected under S1. Complainant attached a statement from Person Y and included
a telephone number for Person Y who she stated was available to interview. Complainant also
attached a letter dated January 8, 2014, in which she informed the Medical Director of this
disparate treatment.

The January 16, 2014 statement from Person Y states that on November 18, 2013, Coworker 1
hit Person X on his shoulder when Person X was walking into the breakroom. Person Y states
“When we all wrote the incident report up, nothing was done in regard to a physical encounter.”
Person Y states that Person X fell back, but was able to regain his composure. Person Y stated
that no security was called and he was not removed from the section.

The record contains the January 8, 2014 letter addressed to the VAMC Director in Cheyenne,
Wyoming. The letter states that since Complainant was placed on administrative leave for
assaulting a coworker, she has learned of a similar incident that occurred with a White, male
coworker who was not disciplined and that law enforcement was not called regarding that
incident. Complainant’s attorney states “[t]his incident as well as the numerous other previous
incidents which [Complainant] reported to her supervisor, [S1], on an ongoing basis is indicative
of the pervasive and corrosive atmosphere of discriminatory conduct against [Complainant]
during her employment.” Complainant’s attorney states that S1 engaged in a pattern of conduct
designed to further harass and intimidate Complainant with the intention of terminating her
employment.

0120150957

4
In a March 6, 2014 Notice of Amendment and Correction, the Agency responded to
Complainant’s February 13, 2014 letter. The Agency noted it was modifying its description of
issue (3) to include clarifying information provided by Complainant’s attorney. In addition, the
Agency addressed the incident Complainant identified in her February 13, 2014 letter, as
occurring on November 18, 2013. The Agency characterized this incident as a proposed
amendment to her complaint and found it was not like or related to Complainant’s original
complaint. The Agency stated that Complainant’s original harassment claim is regarding
management’s behavior that she considered belittling, threatening, humiliating, and/or
intimidating to defame her character and undermine her career. The Agency noted the
amendment concerning management’s failure to discipline or call law enforcement on a
coworker for hitting another employee in the workplace. The Agency stated there was no
evidence that Complainant was a party to and/or involved in the incident. In addition, the
Agency dismissed the proposed amendment for failure to state a claim because Complainant
failed to allege any specific injury to her as a result of the incident.

At the conclusion of the investigation on the accepted issues, 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 noted Complainant claimed that on April 15, 2013, S1 humiliated her by
reprimanding her in front of her coworkers for performing an unnecessary process, thereby
“wasting government money.” The Agency noted S1 denied accusing Complainant of wasting
government money and, rather, stated she discussed with Complainant, as she did with all
employees, the most efficient processes to use to make the most of valuable resources.

The Agency noted Complainant stated she made a request to attend an Asian History Month
event at the facility. S1 informed Complainant that she was permitted to take an extended lunch
to attend the event without using leave, as were other employees of the service. S1 stated
Complainant told her that she wanted to attend the event all day and requested Administrative
Absence (AA) to cover her leave. S1 denied the request for AA but informed her that she could
use Annual Leave (AL) if she wanted to attend the event all day.

The Agency noted that Complainant stated that on May 29, 2013, during a meeting, Coworker 1
stated angrily: “You are a trouble maker, nobody likes you, and you make everyone mad.”
Complainant also alleged that S1’s assistant, the RME Coordinator, stated at the meeting: “This
is America, not Korea. You have to live the American way.” Complainant claimed S1 was
present but took no action. The Agency stated that S1, Coworker 1, and the RME Coordinator
all stated that they were present at the meeting and that Coworker 1 did make the statements
alleged by Complainant. The Agency noted that Coworker 1 made the statements at issue in
response to Complainant’s reports to S1 that he does not work hard enough. The Agency noted
0120150957

5
that S1, Coworker 1, and the RME Coordinator denied that the RME Coordinator made the
statements alleged by Complainant regarding Korea or America.

The Agency noted that in June 2013, Complainant was working on a reprocessing project and
during the project she changed the process to what she believed was a better process. S1 stated
that due to the change in the process some equipment was lost and time was lost looking for the
equipment. On July 1, 2013, S1 issued Complainant a written counseling regarding her failure to
follow the original process guidelines.

The Agency noted that on July 3, 3013, S1 denied Complainant’s request for leave to attend a
doctor’s appointment with her sister on July 9, 2013. S1 stated that the date Complainant
requested off was “right in the middle of a joint commission inspection so [she] needed as many
people as [she] could have to make sure everything ran smoothly.”

The Agency noted that on July 17, 2013, Complainant reorganized Coworker 2’s work station.
When Coworker 2 discovered that Complainant reorganized his work station, he was agitated,
and he over-reacted. He yelled at Complainant, stating: “Don’t put this shit here,” and, “This is
why everyone complains about you.” Complainant reported his outburst to S1. S1 counseled
Coworker 2 regarding his temper and his language. Coworker 2 expressed regret and said it
would not happen again.

The Agency noted that on July 22, 2013, S1 issued Complainant a proposed admonishment for
failure to follow instructions based on her unilaterally changing an established process. On July
26, 2013, an incident occurred in which Complainant failed to follow the policy of the service
when she removed inventory items prior to an item count. As a result, S1 rescinded the proposed
admonishment and, on August 12, 2013, issued her a proposed reprimand instead. Complainant
defended herself with a written explanation of why she did not follow the policy, but, on
September 10, 2013, the Associate Director issued Complainant a Letter of Reprimand based on
the sustained charges lodged in the proposed reprimand.

The Agency noted that on September 19, 2013, Coworker 3 reported to S1 that Complainant
punched her in the back in a fit of frustration. Complainant stated that she was frustrated at the
time but that she did not punch Coworker 3. Coworker 3 stated that she was on the telephone
with a coworker when Complainant came in and told Coworker 3 to tell the coworker to clean up
a work station. Coworker 3 told the person on the phone that Complainant told her to relay the
message, and Complainant was upset about the way Coworker 3 relayed her message. Coworker
3 stated that Complainant punched her. Complainant stated she just walked away.

The Agency noted that after S1 was informed about the alleged punch, she called Human
Resources and the facility police in accordance with facility policy. Complainant was placed on
paid leave while the police conducted an investigation. Based on the findings of the
investigation, S1 and the Associate Director decided to propose Complainant’s termination. On
November 1, 2013, Complainant was issued a letter of proposed termination due to making
physical contact with a coworker and answering a question with lack of candor during the police
0120150957

6
investigation. Complainant provided a written response to the proposed termination, and the
facility director mitigated the termination to a directed reassignment to a new service.

The Agency stated that on November 1, 2013, Complainant was also issued her annual
performance appraisal on which she received a “Fully Successful” rating. She stated that she
received the “Fully Successful” as an act of discrimination and reprisal and she should have
received an “Exceptional” rating. She stated that Coworker 3 was treated better than her based
on race when she received an “Exceptional” rating for the same rating period. S1 stated that
Coworker 3 received a “Fully Successful” rating for the rating period.

The Agency noted that Complainant stated that from July 2013 through December 2013, S1
instructed her to return to her desk and “type back to her what she understood” from their
conversation. S1 and the Associate Director stated that Complainant was not present at work
between September 19, 2013 and December 2013. They further stated that Complainant was not
asked to communicate through email with S1 as an act of discrimination or reprisal, but that S1
asked all of her employees to write requests for clarification in email form.

The Agency noted that Complainant alleged that from September 2011 through December 2013,
S1 failed to act after she reported various coworkers for screaming at her, making demeaning and
derogatory remarks about her accent, and making comments that she should be fired and sent
back to Korea. Complainant stated that her coworkers mocked her about her race and national
origin and that S1 joined in and laughed with them. S1 denied knowing about any mocking or
discriminatory comments to or about Complainant. S1 stated that Complainant never reported
discriminatory comments to her. S1 stated that one time Complainant informed her that a prior
supervisor in a different service made discriminatory comments to her, but it was two years after
the alleged comments were made so there was nothing S1 could do about it.

The Agency determined Complainant belonged to protected classes based on her race, national
origin, and prior EEO activity. The Agency found Complainant failed to present evidence to
establish she was subjected to unwelcome personal slurs or other insulting verbal or physical
conduct based on her protected classes.

The Agency noted that Complainant stated that her coworkers made fun of her accent and the
fact that she is Korean and that S1 was present for much of the discriminatory behavior and
laughed along with her coworkers. Complainant stated that her coworkers told her that this is
not Korea and she needed to act like an American. However, the Agency noted that every
witness in the case denied using or hearing the discriminatory comments alleged.

The Agency found that the record established that Complainant had abrasive relationships with
some of her coworkers. The Agency stated that the record established that the source of the
problems between Complainant and her coworkers were likely her perfectionist work ethic and
her insistence that her coworkers live up to her standards, not the standards set by the facility.
Complainant often informed her coworkers that they should work harder when she thought they
were not working hard enough. The Agency stated the evidence establishes it was that behavior
0120150957

7
that led to statements like: “That’s why everyone complains about you,” while no evidence
indicates the statements were made based on race, national origin, or prior EEO activity.

The Agency also states Complainant perceived flaws in the operating processes and made
unilateral changes to the processes despite management’s directives otherwise. The Agency
states the evidence establishes that this was the behavior that led to Complainant’s progressive
discipline for failure to follow instructions. The Agency claims there is no evidence in the
record establishing that her progressive discipline was based on race, national origin, or prior
EEO activity.

Finally, the Agency stated that the incident involving Complainant allegedly assaulting her
coworker, being placed on paid leave while the police conducted an investigation, and being
issued a proposed termination was not based on her race, national origin, and prior EEO activity.
However, the Agency states the evidence in the record shows that the incident occurred because
Complainant made physical contact with her coworker, whether it was harmful or not, and then
was not completely forthright with the police during the investigation. The Agency states there is
no evidence that any of the incidents were based on Complainant’s race, national origin, or prior
EEO activity.

The Agency determined Complainant failed to present evidence substantiating her allegations
that her coworkers and supervisor mocked and teased her based on her race and national origin.
The Agency stated that Complainant also failed to present evidence linking the other alleged
incidents associated with her harassment claim and her protected classes.

Regarding discrete incidents (9) and (14), the Agency found it presented legitimate,
nondiscriminatory reasons. Specifically, S1 and the Associate Director stated that on July 22,
2013, S1 issued Complainant a proposed admonishment for failure to follow instructions, then
on July 26, 2013, Complainant failed to follow the policy of the service again when she removed
inventory items from storage prior to an item count. As a result of this failure, S1 rescinded the
proposed admonishment and on August 12, 2013, issued her a proposed reprimand instead. On
September 10, 2013, the Associate Director issued a Letter of Reprimand based on the sustained
charges lodged in the proposed reprimand, i.e., failure to follow supervisory instructions.

The Agency also stated that S1 and the Associate Director also stated they issued a “Fully
Successful” rating due to Complainant’s failure to follow instructions and the fact that she was
on administrative leave and under investigation for assaulting a coworker. The Agency
determined Complainant did not establish the Agency’s reasons for its actions were a pretext for
discrimination.

On appeal, Complainant states issue (1) occurred on April 5, 2013, and not April 15, 2013.
Complainant states she was told by S1 not to run the only two Stryker Core machines in the
evening anymore since all processes can be run in the morning. Complainant states she agreed
to comply. Complainant states she was then called in to sterilize equipment following an after-
hours surgery where the primary surgical technologist and two registered nurses requested
0120150957

8
Complainant run the Stryker Core machine for two surgical pans being used in an early morning
surgery. Complainant states that she ran the machine. Complainant states in the morning S1
verbally reprimanded her for disregarding instructions.

Regarding issue (2), Complainant states that her request to use an administrative absence to
attend the Asian History Month event was denied by S1, but Complainant was told she could use
annual leave or an extended lunch to attend. Complainant explains she was not just attending the
event but had been an integral part of the planning, preparation, and execution of the event.
Complainant points out that S1 had allowed her to participate in the Asian History Month event
in 2012 all day without using any leave.

Regarding issue (6), Complainant states that S1 failed to act when Coworker 2 yelled at
Complainant for cleaning the DECON Room. Complainant states that while S1 had a meeting
with Complainant and Coworker 2 about the incident, S1 validated Coworker 2’s behavior by
agreeing that she would be upset if a coworker reorganized her desk. Complainant states S1 did
not inquire about the space that was reorganized, which was not Coworker 2’s personal work
station, but a common working space.

Regarding issue (10), Complainant notes that Coworker 3 claimed Complainant assaulted her
when she did not. Complainant claims Coworker 3 lied to get another coworker removed from
the area. Complainant notes that S1 stated the alleged assault was handled by HR policy which
required the removal of Complainant by the facility police and noted Complainant was charged
with assault. Complainant notes that in November 2013, Person Y witnessed Coworker 1 assault
another coworker and Coworker 1 was not removed or charged with assault which she alleges
was disparate treatment.

Complainant states that S1 issued her a lower performance appraisal because of frequent
mistakes and inability to get along with her coworkers which went beyond the Standard
Operating Procedures (SOPs) of their department. Complainant states these mistakes were
brought to S1’s attention by Complainant’s coworkers and not by the personal observation of S1.
Complainant claims that Coworker 3, Coworker 1, Coworker 2, and other coworkers have failed
to follow several procedures or have made similar mistakes, but they did not report these errors
to S1. Complainant states that S1 did not issue other employees reprimands or admonishments
in spite of the fact that errors have caused surgeries to be delayed. Complainant claims that
Coworker 3 received an “Exceptional” rating on her performance evaluation. Complainant notes
the letters that Volunteer A and Person Y wrote in support of Complainant and described her
work ethic to be consistent with enforcing SOPs, not going above them.

Complainant claims that from September 2011 through December 2013, she was subject to
derogatory and demeaning remarks regrading her accent and ethnicity. Complainant notes how
Coworker 2 made comments to her about being sent back to Korea if she did not pass her
certification exams, refused to help her understand terms she did not recognize, and constantly
harassed her for enforcing SOPs. Complainant states that Person Y also wrote a letter describing
hostile behavior Complainant experienced. Complainant notes Coworker 3 also teased her about
0120150957

9
being naïve to the term “quickie” referring to a smoke break and not the sexual innuendo.
Complainant notes that Volunteer A wrote a letter in support of her.

In response, the Agency notes Complainant reiterates her version of events. The Agency states it
already considered Complainant’s version of events in its decision. The Agency states
management articulated a legitimate, nondiscriminatory reason for not allowing Complainant to
take the entire day of authorized absence to attend an Asian History Month. Specifically, the
workload did not permit such an authorized absence. Moreover, the Agency noted management
allowed Complainant to take a long lunch hour or use annual to attend the event. The Agency
notes the only argument made by Complainant on appeal, is that her supervisor allowed her to
take an entire day of authorized absence to attend such an event in 2012. The Agency notes that
attendance of the event in 2012 is not at issue and there is no evidence of the workload at the
time of the event in 2012.

The Agency stated Complainant’s claim that her supervisor took no action when a coworker
shouted and cursed at her after she reorganized his workspace in his absence was false. The
Agency noted the supervisor stated that she counseled the coworker orally, and that he agreed
not to engage in such conduct in the future.

The Agency further noted that Complainant hit a coworker in the back. The Agency notes
Complainant denies this on appeal. However, the Agency notes she provides a copy of the
pertinent police report, in which the Agency police officers noted that she acknowledged having
hit her coworker.

The Agency notes Complainant contends that a similarly situated coworker received a
Performance Appraisal rating that was higher than “fully successful” while Complainant
received a rating of “fully successful.” However, the Agency noted the supervisor stated that the
coworker also received a rating of “fully successful” and there is no evidence to the contrary.

The Agency notes that on appeal Complainant provides three written statements from coworkers
who compliment her on being a “team player,” a “friend to everyone,” and “extremely thorough
with her work.” The Agency notes that two of these statements, i.e., the statements by Volunteer
A and Person Y, were included in the record and were already considered by the Agency. The
Agency states it has no reason to doubt that some of Complainant’s coworkers have a high
opinion of her. However, the Agency states Complainant did not show by a preponderance of
evidence that she was subjected to discrimination or reprisal.

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, 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
0120150957

10
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”).

Initially we note that Complainant has not challenged on appeal the Agency’s dismissal of issues
(4) and (5) as discrete untimely raised issues and therefore we shall not consider them as discrete
issues. The Agency has treated them as part of the harassment complaint and we shall also treat
them as such.

We find that the Agency’s investigation was inadequate and we shall remand the complaint for
further investigation. In particular, the evidence placed in the record regarding the alleged
physical altercation involving Complainant was inadequate as explained herein. Further,
Complainant’s reference to how a comparative employee was treated in November 2013,
regarding a physical altercation was not an amendment to the complaint, but is instead proposed
evidence of discrimination. Thus, as explained herein, we find that the Agency failed to properly
investigate the November 2013 incident.

As part of her harassment claim, Complainant stated that Coworker 3 falsely claimed
Complainant assaulted her when she did not. Complainant alleges Coworker 3 lied to get her
removed from the area. The record reveals that as a result of Coworker 3’s allegation, S1 called
the Agency police to investigate. Complainant notes that S1 stated the alleged assault was
handled by HR policy which required the removal of Complainant by the facility police and
noted Complainant was charged with assault. While Complainant provided part of the police
report concerning the alleged assault, we note the full police report was not in the record.
Additionally, we note that the Union Representative who accompanied Complainant to the police
station provided a statement in the record; however, no affidavit was obtained from the Union
Representative.

Complainant claimed that in November 2013, Person Y witnessed Coworker 1 assault another
coworker and Coworker 1 was not removed or charged with assault which she alleges was
disparate treatment. While we agree with the Agency’s determination that the November 18,
2013 event is not a new claim that needed to be amended to Complainant’s existing complaint,
we find this allegation is relevant to Complainant’s claim that she was treated disparately based
on her race, national origin, and/or in reprisal for prior protected EEO activity. We note that the
record reveals that the Office of Resolution Management (ORM) did contact Person Y for an
affidavit on May 28, 2014. However, that inquiry only listed the issues raised in Complainant’s
complaint, numbered 1 – 18 and asked whether Person Y had any knowledge of these incidents.
The November 18, 2013 incident involving Person X was not mentioned in the inquiry. The
record contains a May 28, 2014 response from Person Y who responded to the 18 issues
identified. There is no indication that there was any additional follow up with Person Y.
Moreover, we note the record contains no statement from S1, Coworker 1, or Person X regarding
the November 18, 2013 incident. The November 18, 2013 incident, if accurately portrayed by
Complainant, would be evidence that would need to be considered in determining whether the
0120150957

11
Agency’s reasons for how it handled Complainant’s alleged physical contact with a coworker
were a pretext for discrimination. Thus, we remand the matter to the Agency for a supplemental
investigation to obtain further information surrounding the November 18, 2013 incident
involving Coworker 1 and Person X (in particular, how the Agency handled the incident).

Also, the statement in the record by the Volunteer A is not in affidavit form. On remand, the
Agency shall ask Volunteer A to supply an affidavit responding to the investigator’s questions.

Based on the nature of Complainant’s harassment claim that the Agency’s actions were taken to
harass and intimidate Complainant with the intention of terminating her employment, we decline
to address the merits of Complainant’s other claims at this time and we remand the entire
complaint.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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:

1. Conduct a supplemental investigation which shall include an investigation of the
November 18, 2013 incident involving an alleged assault by Coworker 1 of Person X.
The investigator shall obtain statements regarding the November 18, 2013 incident
from Coworker 1, Person X, Person Y, and S1 and any other relevant information
relating to this incident.

2. The investigator shall also obtain the full police report regarding Complainant’s
alleged assault of Coworker 3 on September 19, 2013, and a statement from the
Union Representative who accompanied Complainant during the police investigation
on the alleged September 19, 2013 assault.

3. The investigator shall obtain an affidavit from Volunteer A addressing the issues in
the complaint.

The Agency shall provide Complainant 30 days to review the supplemental Report of
Investigation and to provide a rebuttal. The Agency shall issue a new final decision within 120
days of the date this decision is issued.

A copy of the supplemental investigative report and new final decision must be provided to the
Compliance Officer as referenced herein.

0120150957

12
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),
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
0120150957

13
(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. 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

February 21, 2018
Date