[Redacted], Devona V., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jul 26, 2022

Appeal No. 2020003169 (E.E.O.C. Jul. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Devona V.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Request No. 2022001811 Appeal No. 2020003169 Hearing No. 480202000023X Agency No. 200P06052017104560 DECISION ON REQUEST FOR RECONSIDERATION Complainant requests that the Equal Employment Opportunity Commission (“EEOC” or “Commission”) reconsider its decision in EEOC Appeal No. 2020003169 (March 29, 2021).2 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 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. 2 The Commission deems Complainant’s February 15, 2022 request timely as there is no evidence to establish that she received the Commission’s decision when it was issued. Complainant attests that she did not receive a copy of the appellate decision until January 20, 2022, when she contacted this office regarding the status of her case. See Prevo v. Federal Deposit Insurance Corp., EEOC Request No. Request No. 05960409 (Jun. 21, 2000) (deeming a request for reconsideration timely filed where the record lacked “a postal return-receipt or any other evidence indicating the date on which complainant received the previous decision”). 2022001811 2 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). During the relevant time, Complainant worked as an Outpatient Clinical Pharmacist, GS-660-12, at the Loma Linda VA Hospital in Loma Linda, California. On November 14, 2017, Complainant filed a formal EEO complaint alleging discrimination and a hostile work environment/harassment on the bases of race (Black/African American), color (Black), disability, and reprisal for prior protected activity when: 1. From February 3, 2017, Complainant was subjected to harassment, including, but not limited to, the following: (a) she was accused of altering service connected status of veterans and moving them out of the system, (b) she was accused of violating the privacy of a patient in violation of HIPPA, which was found to be untrue, (c) she was accused of and investigated for fraudulent billing, (d) her first level supervisor (“S1”), the Acting Associate Chief of Pharmacy, asked her about the possibility of having her stationed at the new Outpatient Pharmacy Building, (e) upon her return from 2 weeks’ vacation she discovered that management had allowed her workload to pile up when they refused and/or failed to assign a backup pharmacist in her absence, and (f) the Associate Chief of Pharmacy demanded that Complainant remove the title, “e-Pharmacy Site Manager,” from her signature block. 2. On January 8, 2018, Complainant discovered that she received a lower performance bonus based upon incorrect performance criteria. 3. On January 18, 2018, the Pharmacy Chief and the HR Specialist denied Complainant’s accommodation request. 4. On January 31, 2018, S1 gave Complainant new assignments which he justified because Tricare was no longer part of her e-pharmacy duties. 5. On March 29, 2018, the Outpatient Pharmacy Supervisor presented Complainant with new performance standards. After an investigation, Complainant requested a hearing. The assigned EEOC Administrative Judge (“AJ”) issued a decision by summary judgment concluding the evidence of record did not establish any discrimination or a hostile work environment. Thereafter, the Agency issued a final order implementing the AJ's finding of no discrimination. Complainant appealed. In EEOC Appeal No. 2020003169, the Commission affirmed the Agency's final order implementing the AJ's finding of no discrimination or a hostile work environment. In her request for reconsideration, Complainant argues that the AJ failed to address her claim of reprisal. 2022001811 3 She contends that AJ was not unaware of her prior protected EEO activity, making passing reference to it in the decision. However, Complainant argues, “the decision of the [AJ] to brush past this issue also does not make it disappear.” The Commission notes that Complainant established a prima facie case of reprisal based on ample record evidence that was not explicitly acknowledged in our prior decision. The prior appellate decision, and the underlying AJ decision, do not reflect the extent to which S1 was aware of Complainant’s prior EEO activity and her disability, nor do they reflect the temporal proximity of her EEO activity. Even though S1 was Complainant’s “new supervisor,” he had been Complainant’s colleague for nearly 20 years, at times holding supervisory positions where he was notified about her disability and her EEO activity. On at least one instance, S1 was called as a witness for Complainant’s prior EEO complaint. The Chief of Pharmacy and the Associate Chief of Pharmacy (also S1’s wife) had been named as responding management officials in Complainant’s past EEO complaints. The AJ referenced Complainant’s EEO activity from 2002 through 2010, and a negotiated settlement agreement executed on November 26, 2013.3 We now clarify that the 2013 agreement, which the parties entered to resolve an EEO complaint pending in civil court, constituted EEO activity in itself, as did efforts to ensure compliance. Although the events in the instant complaint occurred years after the NSA was executed, Complainant regularly reminded Agency management of its obligations under the NSA with respect to her reasonable accommodation, including matters pertaining to job duties. Moreover, Complainant asserted a temporal nexus, reasoning that because the 2013 NSA contained stipulations about her job duties, her prior EEO activity was “fresh on [S1’s] mind” during the relevant time frame for this complaint. Although the AJ did not address this portion of Complainant’s reprisal allegation, the relevant argument was not sufficient to overcome the Agency’s legitimate, non-discriminatory reason for its actions. Ultimately, the shortcomings of the AJ’s prima facie analysis constitute a harmless error because they do not change the outcome of the decision. See, e.g. Smith v. Army & Air Force Exchange Serv., EEOC Appeal No. 05A50207 (Dec. 13, 2004). As the AJ’s decision for the instant complaint aptly noted, “mere knowledge of Complainant's protected classes, without more, is insufficient to establish discrimination.” citing Harris v, Dep 't of Veterans Affairs, EEOC Request No. 05950065 (Apr. 18, 1996), other citations omitted, see also, e.g. Harriet J. v. United States Postal Serv., EEOC Appeal No. 2020001702 (Nov. 3, 2020) (summary judgment was proper where the complainant, despite an opportunity to engage in discovery, offered “nothing more than self-serving averments,” which did not constitute factual evidence of a genuine issue of material fact in dispute, nor overcome the agency’s legitimate nondiscriminatory reason, even where credibility issues remained) other citations omitted. 3 U.S. District Court, Central District of California, Eastern Div., Case Nos. CV1201562VAP(OPx) & CV050983VAP(OPx) (Nov. 26, 2013). 2022001811 4 In order to merit the reconsideration of a prior Commission decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. The Commission's scope of review on a request for reconsideration is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989). A request for reconsideration is not merely a form of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). Instead, it is an opportunity to submit newly discovered evidence, not previously available; to establish substantive error in a previous decision; or to explain why the previous decision will have effects beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769 (September 27, 1990). Here, Complainant simply reiterates contentions and arguments raised, or should have been raised, on appeal After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2020003169 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 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. 2022001811 5 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, 2022 Date