Nancy D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 26, 2019

2019003457 (E.E.O.C. Jul. 26, 2019)

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

Nancy D.,1
Complainant,

v.

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

Appeal No. 2019003457

Hearing No. 530-2018-00089X

Agency No. 2004-0613-2017100589

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency final order, dated April 5,
2019, concerning an equal employment opportunity (EEO) complaint claiming 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. The Commission accepts the appeal in accordance with 29 C.F.R. §
1614.405.

BACKGROUND

In October 2012, Complainant began working as the Chief, Pharmacy Services at the VA
Medical Center in Martinsburg, West Virginia.

During her first three years in the position, Complainant received “Outstanding” ratings in her
performance evaluations, as well as verbal commendations from the Chief of Staff and Medical
Center Director. Nonetheless, Complainant asserts that she “routinely encountered a battery of
discriminatory comments about her race, skin color, religion, sex, and national origin.”
Specifically, Complainant claimed that comments were directed at her accent, first name, and
place of birth.

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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For example, one pharmacist asked her, “how long have you been in this country?” When
Complainant answered she had been in the United States almost thirty years, the pharmacist
responded, “Don’t you think that’s enough time to change your accent?” In another instance, a
staff member told Complainant she looked Iranian. When asked how the individual came to that
conclusion, the staff member explained that she had worked in the Middle East and stated “[m]y
experience with Iranians is not good. They are all evil.” The Pharmacy Department Secretary
suggested that Complainant apply for a job in Washington, D.C. or Baltimore, reasoning that the
facilities are more diverse and would be a better fit for her.

Following Complainant’s attempts to discipline a physician for a discrepancy in drug
administration, a pharmacist filed a complaint with the Agency’s Office of Inspector General
(OIG), in August 2015, alleging that Complainant had restricted pharmacists from purchasing
medications. On September 16, 2015, the Quality Management Officer and Chief of Staff
accused Complainant of talking with the pharmacist about the complaint. Complainant was
moved to a different floor, removed of her title, and given administrative duties she was not
trained to perform. The next day, on September 17, 2015, Complainant was informed that she
was also the subject of an Administrative Investigation Board (AIB) investigation regarding
claims that she had created a hostile work environment. During the next year, Complainant
continued in her reassigned position. On September 26, 2016, she received a Notice of Proposed
Demotion and Suspension.

Believing that the Agency’s actions constituted harassment and created a hostile work
environment, Complainant contacted an EEO Counselor on November 14, 2016. Thereafter, on
December 8, 2016, the Agency issued a decision on the proposed actions which suspended
Complainant for fourteen days and demoted her, from Chief of Pharmacy Services to the
position of Home-Based Primary Care Clinical Pharmacy Specialist. Additionally, she was
instructed to report to Dr. [T], who Complainant described as “the main aggressor in my
complaint”. Dr. [T] had been assigned, in an acting capacity, to Complainant’s previous position
(Acting Chief, Pharmacy Services). Complainant raised these additional events during EEO
counseling (in an amendment to her informal EEO complaint).

On February 27, 2017, Complainant filed a formal EEO complaint alleging a discriminatory
hostile work environment based on race (Asian), national origin (Iranian), religion (Christian),
sex (female), and reprisal for prior protected EEO activity. She set forth the events comprising
her hostile work environment claim in a fourteen-page attachment to her complaint form.

In accepting the formal complaint for investigation, the Agency framed the hostile work
environment claim as evidenced by fourteen enumerated events. After 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 EEOC Administrative Judge (AJ). Complainant timely requested
a hearing.

In early December 2018, the parties attended an Initial Status Conference with the AJ.
Thereafter, on February 15, 2019, the Agency filed a Motion to Dismiss.
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The Agency argued that a portion of the claims, as set forth in Complainant’s Revised Statement
of Issues, that relate to the demotion should be remanded for an Agency decision with appeal
rights to the Merit Systems Protection Board (MSPB). The Agency asserted that another portion
of the complaint, failed to allege a harm and should be dismissed for failure to state a claim.
Finally, the Agency asserted that any events that occurred more than forty-five days before
Complainant’s November 14, 2016 EEO counselor contact should be dismissed as untimely
raised with an EEO Counselor.

On March 27, 2019, the AJ dismissed the entire complaint for untimely EEO Counselor contact.
Specifically, the AJ reasoned that Complainant’s reassignment on September 16, 2015, during
the investigation of her conduct, occurred more than a year before she contacted the EEO
Counselor. In light of the fact that after that date Complainant was instructed not to have contact
with anyone from her team and she primarily teleworked, the AJ reasoned that Complainant’s
claim of a “continuing violation” was “misplaced” because none of the examples of
discriminatory animus occurred after September 16, 2015. Therefore, the AJ concluded that
Complainant’s claim of a hostile work environment was untimely raised.

Regarding Complainant’s assertion that three claims (the September 26, 2016 Notice of
Proposed Demotion and Suspension; the December 8, 2016, Fourteen-Day Suspension; and the
December 8, 2016 assignment to Dr. [T]) were timely, the AJ found the proposed action was
both untimely and failed to state an actionable claim. Further, the AJ found that the September
26 and December 8, 2016 claims, according to the AJ were “one action”. According to the AJ,
“[t]here are no allegations . . . that indicate . . . any connection between these personnel
changes[,] which took place in response to the complaints of a hostile work environment created
by Complainant[,] and Complainant’s [Counselor] contact in November 2016 or the alleged
discriminatory actions which took place prior to September 2015.” Moreover, according to the
AJ, the change in reporting structure occurred at the time of Complainant’s reassignment in
September 2015, and therefore is untimely.

Finally, the AJ noted that since Complainant’s allegations were found to be untimely, she
declined to consider the Agency’s arguments regarding failure to state a claim and appealability
to the MSPB.2

The Agency issued a final order fully implementing the AJ’s decision to dismiss the complaint
for untimely counselor contact. Complainant filed the instant appeal.

2 However, the AJ did note that the demotion claim would be appropriate for processing by the
MSPB, but that Complainant stated in her Opposition that the demotion issue is not part of the
instant EEO complaint.
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ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).

Dismissal for Untimely Counselor Contact

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

In the instant case, many of the events described by Complainant occurred months, or even
years, prior to her November 14, 2016 EEO Counselor contact. However, throughout the EEO
process, Complainant has clearly alleged that she has been subjected to a hostile work
environment.

A hostile work environment claim is comprised of a series of separate acts that collectively
constitute one unlawful employment practice. National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, at 117 (2002). Unlike a claim based on discrete acts of discrimination, a hostile
work environment claim is based upon the cumulative effect of individual acts that may not
themselves be actionable. Id. at 115. Further, the Supreme Court has held that a hostile work
environment complaint will not be time barred if all acts constituting the claim are part of the
same unlawful practice, so long as at least one act falls within the filing period. Id. at 117.
However, a complainant cannot recover for specific discrete acts that are not timely raised. Id.

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Prior to evaluating the separate acts allegedly comprising Complainant’s hostile work
environment claim, we must first examine the problematic framing of the instant complaint. The
Agency, in its Motion to Dismiss, highlights and criticizes the numerous “versions” of the issues
raised by Complainant. The Agency asserts that some events are “completely awash in
vagueness as to time and circumstance,” while others fail to demonstrate a harm suffered.
According to the Agency, Complainant is “attempting to amass random comments by numerous
[individuals] in a concerted, conspiratorial, discriminatorily-motivated effort . . . .”

A review of the record does reflect an improper and ineffectual framing of the complaint, but the
responsibility for this failing does not lie with Complainant. The EEO Counselor’s Report, in a
“Brief Description of Claim” regarding harassment, enumerates nine “incidents of harassment”.
The plain-meaning of many of these “incidents”, however, reflect simply a part of a broader
narrative or background setting forth an atmosphere of discrimination or hostility to some of
Complainant’s protected bases.3 The list also included Complainant’s claim that she was
subjected to an AIB investigation, and proposed demotion and suspension. These actions were
repeated in a “Brief Description of Claim” regarding “Disciplinary Action (Demotion and
Suspension)”. In the letter, dated February 10, 2017, accompanying the Notice of Right to File a
Discrimination Complaint provided to Complainant, the claims were simply listed as categories
(Harassment – proposed suspension and demotion; Disciplinary Action – suspension and
demotion). Therefore, even prior to the filing of the formal complaint, we find that the claims
were unclear.

The formal complaint, as noted above, includes a fourteen-page attachment. The Agency argues,
in its Motion to Dismiss, that the formal complaint attempts to expand her complaint. However,
we note that the Agency did not dismiss any of the events on the grounds that they were not
counseled. We find that, although the formal complaint may provide more details, it does not
reflect an effort to add additional issues.

In accepting the formal complaint and assigning the matter to an EEO Investigator, the complaint
was defined by the Agency as consisting of fourteen events supporting the overall claim of a
hostile work environment. Before the AJ, the Agency also disparaged this framing by its own
EEO office, stating they “inexplicably hand-pick[ed] not the eight claims Complainant included
in her Statement of the Issues . . . nor the 68 paragraphs included thereafter”, but rather fourteen
claims “seemingly of their own drafting.”

The poor framing of the complaint is reflected in July 2017 correspondence between the assigned
EEO Investigator and EEO office. Therein, the investigator questions whether some of the
accepted claims are in fact actionable, discrete acts that should be investigated.

3 For example: “(1) In 2012, Complainant stated in the beginning, everyone in Pharmacy Service
assumed she was a Muslim, because of her country of origin because they told her that she
‘looked Muslim’.”
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Finally, during the December 3, 2018 telephone Initial Status Conference, the AJ ordered
Complainant to narrow the issues. In response, days later, Complainant submitted a “Revised
Statement of the Issues”. In outline form, Complainant alleged she was subjected to a hostile
work environment, comprised of the following matters: numerous incidents of discriminatory
comments; the removal of her job title; her reassignment to a lesser position; the initiation of an
AIB; the proposal and subsequent implementation of a suspension and demotion; and the
assignment to report to the individual Complainant had previously accused of harassing her.

We find that in alleging her hostile work environment claim, Complainant has described
background information within which to provide context for her belief that the Agency’s actions
are due to her protected bases. As we noted above, a hostile work environment claim may be
comprised of lesser incidents that on their own may not be actionable. But, cumulatively, the
events create an environment that is abusive. If Complainant had come to the EEO Counselor
following some of the earlier events she described, the Agency would have argued they failed to
state a claim. Instead, she provides this information to support her belief that the Agency’s
decision to remove her from her position as Chief of Pharmacy Services, place her in an office
on the sixth floor, instruct her not to communicate with anyone from the pharmacy, assign her
administrative tasks, was motivated by discriminatory animus, rather than the proffered reason
the Agency provided (that Complainant had been instructed not to speak with the individual who
filed the OIG complaint). Further, she contends that the Agency’s decision to instigate the AIB
investigation, and the resulting suspension and demotion were also due to her race, national
origin, religion, sex, and prior EEO activity. We find that the discrete events included within the
hostile work environment claim, are timely. Specifically, the 14-day suspension, the demotion4,
and the requirement that Complainant report to her alleged harasser, all occurred within forty-
five days of Complainant’s November 14, 2016 counselor contact. In fact, the suspension and
demotion occurred after Complainant’s initial contact, while she was still in the informal
process.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we REVERSE the
Agency’s final order dismissing the complaint and REMAND the matter to the Agency to
forward to the appropriate hearing unit for further processing in accordance with the ORDER
below.

ORDER
The Agency is directed to submit a request for a hearing, a copy of the complaint file, and a copy
of this decision to the EEOC Hearings Unit of the Philadelphia District Office within fifteen (15)
calendar days of the date this decision is issued.

4 The proposed suspension and demotion, which occurred more than forty-five days earlier, is
considered to have merged with the Agency’s subsequent decision to execute the actions on
December 8, 2016. See Siegel v. Dep’t of Veterans Affairs, EEOC Request No. 05960568 (Oct.
10, 1997); Charles v. Dep’t of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991).
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The Agency shall provide written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall process and issue a decision on the merits of the complaint in
accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance
with 29 C.F.R. § 1614.110.
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). 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.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition.
See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (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
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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

July 26, 2019
Date