0520180153
04-05-2018
Leonarda S,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leonarda S,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520180153
Appeal No. 0120152303
Agency No. 200P06482013103952
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120152303 (November 17, 2015). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant worked as a GS-6 Pharmacy Technician at the Agency's facility in Portland, Oregon. Complainant filed an EEO complaint in which she alleged the Agency discriminated against her on the bases of national origin (Russian), sex (female), religion ("Jewish Christian"), disability, and reprisal, raising 11 claims. Claims 1-10 dealt with actions by S1, the Pharmacy Inpatient Supervisor and involved, but were not limited to, inappropriate comments such as referring her as "KGB", ignoring her work restrictions, showing up in her hospital room when she was hospitalized, assignments, a letter of reprimand, and denying her vacation requests. Claim 11 alleged that on February 11, 2014, in retaliation for filing an EEO complaint, Complainant was informed by the Assistant Chief of Pharmacy Services (S2) that she was reassigned to Operative Care because she had filed an EEO complaint.
In accordance with Complainant's request, the Agency issued a final Agency decision wherein the Agency found that some claims were untimely raised with an EEO counselor. The Agency found that Complainant was not subjected to harassment or a hostile work environment.
Our previous decision viewed all of the claims as part of a single hostile work environment claim. The decision noted that S1 and S2 knew about the comments because S1 admitted to S2 that he had referred to Complainant as "KGB". The decision found that Complainant did not prove that the Agency's nondiscriminatory explanations for its actions were pretext for unlawful discrimination. Additionally, although the decision noted that the comments made about Complainant were inappropriate, the decision did not find that the alleged actions were severe or pervasive enough to constitute a hostile work environment. However, the decision found that with respect to claim 11, S2 "clearly acknowledged that he reassigned Complainant because she filed an EEO complaint... ." As such, the decision found that S2 retaliated against Complainant.
The previous decision ordered appropriate relief. It also ordered the Agency to provide "eight hours of in-person EEO training to all its management officials and supervisors" at the facility.
In its request for reconsideration, the Agency does not dispute the findings. Rather, it objects to only to the portion of the Order that required it to provide training to all supervisors and managers at the facility, arguing that only two management officials were involved with the incidents in question - S1 and S2. After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request. The Order in 0120152303 is modified as set forth herein. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER
The Agency is ordered to undertake the following remedial actions, to the extent it has not already done so:
1. Within 120 calendar days after this decision is issued, the Agency shall offer to reinstate/reassign Complainant to her previous position and assignment in Outpatient Care. Complainant, within fifteen (15) calendar days of receiving the offer, shall either accept or decline said offer in writing.
2. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to S1 and S2 with an emphasis on the Agency's obligation to prevent reprisal and to properly respond to harassment allegations.
3. Within 120 calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between her reassignment (claim 11) and pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. � 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein.
4. The Agency shall consider taking disciplinary action against the responsible management official, S2, regarding Complainant's reassignment (claim 11). The Agency shall report its decision to the Commission. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
5. Within 120 calendar days from the date this decision becomes final, the Agency shall determine Complainant's entitlement to attorney's fees and costs as indicated below. Along with its determination on compensatory damages, the Agency will issue a final decision on the issue of attorney's fees. The final decision shall contain appeal rights to the Commission.
POSTING ORDER (G0617)
The Agency is ordered to post at its Portland, Oregon facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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