[Redacted], Bart L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020004091 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004091 Agency No. 2003-0598-2019101783 DECISION On May 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the decision. ISSUE PRESENTED The issue presented is whether the Agency’s investigation of Complainant’s complaint was sufficient pursuant to the requirements of 29 C.F.R. 1613.216(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Vocational Rehabilitation Counselor for Transitional Work, Grade Service 11, in the Compensated Work Therapy Department at the Agency’s Central Arkansas Veterans Healthcare System in North Little Rock, Arkansas. 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. 2020004091 2 On March 13, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her based on her disability (physical and mental) when: 1. on January 23, 2019, the Vocational Rehabilitation Supervisor (Supervisor), failed to train Complainant on how to prepare files for an audit in the newly assigned work area; 2. on January 25, 2019, Complainant submitted her resignation (constructive discharge) from the position of Vocational Counselor, after the Supervisor created an intolerable work environment after Complainant spoke out against the unfair treatment of a veteran, and coworker (Coworker 1), effective February 8, 2019; 3. on January 25, 2019, Complainant became aware that the Supervisor and her coworker (Coworker 2) had spread her personal information that she had resigned by stating, "That girl [Complainant] done quit today."; 4. on February 1, 2019, the Supervisor issued Complainant a Probationary Warning letter of Unacceptable Performance; 5. on February 5, 2019, Complainant believe the Supervisor used passive aggressive tactic when she reassigned the duty of collecting birthdates of co-workers and assigned Complainant several tasks with short deadlines; 6. on February 6, 2019, Complainant became aware that the Supervisor was standing outside her door listening to her conversation with the Disability Advocate; 7. on February 11, 2019, Complainant became aware that the Supervisor, Coworker 2, and another coworker (Coworker 3) were spreading false statements regarding her complaining about having a meeting to discuss timesheets and saying it was not her duty; 8. on February 13, 2019, Complainant became aware that the Supervisor had submitted her letter of resignation to administration; 9. on February 20, 2019, Complainant became aware that the Supervisor caused her to be blocked from having computer access. On May 8, 2019, the Agency accepted the complaint for investigation. In its acceptance, the Agency only found claim 4 to constitute an independently discrete and actionable claim. The Agency accepted the remaining claims as part of Complainant’s hostile work environment claim. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant stated that the Supervisor was the only responsible management official. Report of Investigation (ROI) at 60. Complainant stated that when she began her employment in July 2018, her relationship with the Supervisor was very cordial and professional. ROI at 62. 2020004091 3 Complainant asserted that much of the harassment started after she started to defend Coworker 1 as being treated unfairly. ROI at 14; 62. Complainant asserts in her appellate statement that the harassment was linked to her participation in Coworker 1’s EEO complaint. Complainant noted that shortly after she spoke up for Coworker 1, she received a warning letter. Id. Complainant also asserted that she began to be “outcasted by several coworkers because they did not want to (sic) be victims of retaliation by [the Supervisor].” Id. Complainant asserted that one of the six coworkers (Coworker 4) was eventually detailed to a different department and was also excluded in many things because she built a relationship with Coworker 1. Complainant also alleged that Coworker 4 was warned not to build such relationship with Coworker 1. Id. Complainant listed six coworkers that could attest to the situation and retaliation by the Supervisor, these coworkers include Coworker 2, Coworker 3, Coworker 4, Coworker 5, Coworker 6, and Coworker 7. Id. Complainant also alleged that the Supervisor was using her disability and passive aggressive tactics in a manner that exacerbated her condition. ROI at 63. For example, Complainant asserted that the Supervisor required her to physically go to hospital sites to collect timesheets even though the Supervisor had previously informed Site Supervisors at the hospitals that timesheets could be submitted through email, fax, hand delivery, or Agency mail. Complainant noted that she had a known disability and that the Supervisor was purposely engaging in harmful tactics. Id. On February 6, 2019, Complainant put in a request for reasonable accommodations but asserted that the Supervisor refused to fill her portion. ROI at 68-69. On March 18, 2019, Complainant cancelled her reasonable accommodation request during her last week of employment with the Agency. ROI at 69; 326. The EEO Investigator did not question Complainant on claims 1-3, 5-9, instead only asking her to verify the claims were correct. ROI at 70-72. Regarding claim 4, Complainant stated that she was informed by the Supervisor that she was not performing the duties of her position. ROI at 72. Complainant noted that she was given the letter of warning just one day after the Supervisor spoke to her regarding Coworker 1. ROI at 73. Complainant did not detail what the conversation was about. Id. Complainant noted that while she had previously received praise for her work by the Supervisor, the tone and environment changed once she “spoke up against inappropriate measures [the Supervisor] was utilizing against Veterans2 and the coworker, [Coworker 1]. ROI at 73-74. Complainant concluded her affidavit by asserting that that the Supervisor used her disabilities to harass, retaliate, reprimand, and discriminate against her. ROI at 79. 2 Complainant’s affidavit also discusses her concerns with how the Supervisor generally treated veterans that utilized the Agency’s services. ROI at 80. To the extent that Complainant is asserting reprisal based on her interactions with the Supervisor in discussing veterans that utilized the Agency’s services, as stated in part of claim 3, or her own status as a veteran, the Commission does not have jurisdiction over the veterans' preference statutes or veterans' affirmative action programs. Therefore, any claims associated with veterans or veteran’s status is not included in the Commission’s purview. Alegre v. Dep’t of the Navy, EEOC Appeal No. 0120101640 (July 27, 2010). 2020004091 4 While Complainant was only asked to verify the accuracy of the claims she submitted, the EEO Investigator asked the Supervisor to respond to each of the nine claims. ROI at 146-162. The record also contains a statement from the Acting Associate Chief of Staff (Associate Chief). The Associate Chief was Complainant’s fourth line supervisor but stated that he did not have a working relationship with her and only briefly interacted with her. ROI at 295. Aside from being aware of the probationary letter sent in claim 4, he was unaware of the details in the other claims. ROI at 299. The Chief Psychologist (Chief), Complainant’s third line supervisor was also interviewed. The Chief also noted that he did not have a working relationship with Complainant and did not recall ever speaking with her or having any real knowledge of the claims. ROI at 309-312. The Human Resources Specialist for Employee and Labor Relations (HR Specialist) assisted Complainant in her reasonable accommodation request. ROI at 316. The HR Specialist noted that Complainant had emailed the office and asserted that she was withdrawing her reasonable accommodation request as of March 18, 2019, as she was leaving the facility and transferring to another facility that week. ROI at 317; 326. The Investigation does not contain any affidavits from any of the individuals that Complainant listed as potential witnesses, nor does the Investigator provide any indication as to why those individuals were not contacted. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final Agency decision (FAD), accordingly, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that the Agency subjected her to discrimination or retaliation as alleged. CONTENTIONS ON APPEAL On appeal,3 Complainant states that she is disappointed with the lack of investigation by the Agency’s Office of Employment Discrimination Complaint Adjudication (OEDCA). Complainant asserts that no one called or questioned her former colleagues who witnessed the bullying and harassment, particularly Coworker 1. Complainant provides that the retaliatory harassment really intensified when she became vocal about the harassment that Coworker 1 was being subjected to, and for becoming involved in Coworker 1’s EEO complaint. The Agency requests that the Commission strike Complainant’s appeal statement as untimely and uphold the FAD. 3 Although we find that Complainant's appeal statement was untimely, we exercise our discretion to review her statement. 2020004091 5 The Agency notes that Complainant’s original deadline to submit an appeal statement was on July 17, 2020, but two days prior she requested an extension to submit a statement. The Commission granted the extension and the new deadline was August 16, 2020. Complainant did not submit her appeal statement until September 2, 2020. STANDARD OF REVIEW 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 Chap. 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”). ANALYSIS AND FINDING We note that Complainant raised concerns with the processing of her complaint on appeal. Specifically, Complainant asserts that the FAD was inadequate because there was a lack of an investigation and that certain employees were not contacted for a statement. Upon review of the entire record, the Commission is persuaded that the investigation into Complainant's complaint was incomplete. Upon a review of the investigative record, we find that the evidence is inadequate to allow the Commission to adjudicate Complainant's appeal. The investigation failed to meet the thoroughness requirement of 29 C.F.R. 1613.216(a). See also EEO MD-110, Chap. 5-4; EEOC Regulation 29 C.F.R. §1614.108(b) (the agency shall develop a complete and impartial factual record upon which to make findings on the matters raised by the written complaint). The investigation should have included a thorough review of the circumstances under which the alleged discrimination occurred, and the treatment of Complainant. Based on the record, the investigation is insufficient in several regards: not all witnesses were contacted; not all claims were investigated, despite being accepted for investigation; and while reprisal was clearly a concern, this was not included in the investigation. An adequate investigation includes interviewing relevant witnesses. Here, the EEO Investigator failed to interview several witnesses, such as Coworker 1, Coworker 2, Coworker 3, Coworker 4, Coworker 5, Coworker 6, and Coworker 7. All these individuals were listed as potential witnesses by Complainant, who asserted that each had information relevant to the claims alleged. We also find it particularly troubling that none of the witnesses that Complainant specifically listed in her claims, Coworker 1, Coworker 2, and Coworker 3, were contacted for an interview. There were no apparent efforts made to reach any of these individuals, nor is there any indication in the record that these individuals were unavailable to provide a statement for the record. 2020004091 6 An adequate record would have included affidavits from these individuals, and at the very least indication that efforts were made to secure such interviews. The record also does not contain a thorough investigation into all of the accepted claims. For example, the Investigator asked the Supervisor to respond in detail to the allegations but did not extend the same line of questioning to Complainant. Instead, the Investigator only requested that Complainant merely verify that the claims were correct as stated but not to expand on them. Additionally, several claims that the Agency and the Investigator found to only be part of the overall hostile work environment claim, were discrete actions on their own which should have been investigated. For example, claim 1 involved an inadequate training; claim 8 involved an allegation that the Supervisor submitted a rescinded letter of resignation by Complainant; and claim 9 involved the Supervisor intentionally blocking Complainant’s access to the computers and thereby hindering her work. These discrete acts were swept under the umbrella of a hostile work environment claim. The Investigator failed to ask Complainant to provide evidence or an affidavit surrounding these discrete events. Furthermore, the Investigator did not inquire about these events from the Supervisor. Therefore, without the information in the record, we are unable to determine if the events occurred as alleged or if Complainant was subjected to harassment and/or discrimination. Furthermore, we note that while Complainant did not list reprisal as a basis in her informal or formal complaint, it is clear from the language she used in claim 3 that she was raising this basis. Further, during the investigation, she averred that she felt retaliated against by the Supervisor. Specifically, that she was targeted by the Supervisor after becoming involved in Coworker 1’s EEO complaint. Upon remanding this matter to the Agency for further processing, should Complainant wish, she must inform the Agency of her desire to add reprisal as a basis to her complaint. The evidence must allow us to determine whether Complainant's disability and prior EEO activity were factors in the Agency’s various actions, and it currently fails to do so. Logan v. U.S. Postal Serv., EEOC Appeal No. 01880172 (Mar. 25, 1988). Lastly, we note that while the informal and formal complaint did not explicitly discuss a reasonable accommodation claim, the Investigator touched upon the topic when interviewing Complainant in connection to claim 6. In her affidavit, Complainant discussed how the Supervisor delayed her ability to obtain a reasonable accommodation by not timely filling out the related paperwork. Similarly, as above, if Complainant wishes to amend her complaint to include a claim of denial of reasonable accommodation based on her disability, she must inform the Agency to do so. If Complainant choses to include this claim of denial of reasonable accommodation, the Investigator should further investigate as part of the supplemental investigation. 2020004091 7 CONCLUSION Based on the record, we find that the Agency’s finding of no discrimination was not appropriate given the shortcomings in the investigation of Complainant’s claims. Accordingly, the decision of the Equal Employment Opportunity Commission is to VACATE the Agency’s decision, and to REMAND the case for further processing in accordance with this decision and the ORDER below. ORDER The Agency shall complete the supplemental investigation within sixty (60) calendar days of the date of this decision is issued. It shall provide Complainant with a copy of the supplemental investigation and notify her that she has fifteen (15) calendar days to provide a response to the information contained in its supplemental investigation. Having previously withdrawn her right to a hearing, complainant is not entitled to one before an EEOC Administrative Judge. The Agency shall then issue a new final decision, with the appropriate appeal rights, within ninety (90) calendar days of the date that this decision is issued. A copy of the supplemental investigation, the notice to complainant of her right to respond to the supplemental investigation, and the new final decision must be sent to the Compliance Officer as referenced below. 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. 2020004091 8 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 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2020004091 9 Any supporting documentation must be submitted together with the 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 December 7, 2021 Date