[Redacted], Geraldine G. 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 9, 2020

Appeal No. 2020003244 (E.E.O.C. Dec. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Geraldine G.1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Request No. 2020005240 Appeal No. 2020003244 Agency No. 200J-0578-2020100825 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. 2020003244 (July 23, 2020). 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). During the period at issue, Complainant worked for the Agency as a Nurse in Hines, Illinois. On January 24, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex and age. Complainant listed several incidents to support her complaint. On March 16, 2020, the Agency issued its Final Agency Decision (FAD). The Agency found that the formal complaint was comprised of twenty-two claims that consisted of allegations of harassment involving the issuance of disciplinary actions; union representation; time and attendance matters; reassignments; tour of duty changes and, other work place matters. 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. 2020005240 2 In its FAD, the Agency dismissed nine claims for failure to state a claim, determining that those claims involved an internal Agency investigation and its outcome over which the Commission lacked jurisdiction. The FAD also dismissed two claims involving matters of union representation for failure to state a claim, citing to a lack of jurisdiction over union issues. The Agency dismissed seven claims on the grounds that those matters had been rendered moot. For the remaining claims, the Agency determined that Complainant had failed to demonstrate that she was subjected to a hostile work environment. Complainant appealed the decision to this Commission. In Geraldine G. v. Dep’t of Veteran Affairs, EEOC Appeal No. 2020003244 (July 23, 2020), the Commission determined that the Agency had improperly fragmented Complainant’s claims. Regarding the seven claims that were dismissed for mootness, the Commission determined that the matters were improperly dismissed. The Commission determined that Complainant was alleging that she was being subjected to ongoing harassment based on numerous incidents. Therefore, the Commission noted that it could not be said that there was no reasonable expectation that the alleged violations would not recur. Additionally, Complainant requested compensatory damages, but the Agency failed to address this issue, further rendering the dismissal based on mootness improper. Regarding the nine claims that were dismissed for failure to state a claim, the Commission determined that even if the Agency’s internal investigation did not result in an employment action, it may still be considered part of Complainant’s overall harassment claim. Complainant alleged that was subjected to a variety of incidents met to harass her and make her work difficult. The example she provided included, but not limited to, receiving numerous Letter of Inquiries (LOI); having her tour of duty changed; being placed in involuntarily details; and having her access to systems suspended. All of these were alleged to have been part of her overall harassment claim and it was improper for the Agency to fragment them. Regarding the two claims associated with denial of union representation, the Commission agreed that the Agency had properly dismissed such claims for lack of jurisdiction. Concerning the remaining claims, the Commission stated that the claims were not properly reviewed as the Agency had inappropriately fragmented Complainant’s hostile work environment claim. Accordingly, the Commission affirmed the dismissal of the two claims regarding union representation. However, the Commission reversed the Agency’s dismissal of the remainder of Complainant’s complaint and re-defined the complaint as a hostile work environment claim. The re-defined complaint was remanded to the Agency for further processing. On August 21, 2020, the Agency submitted its Request For Reconsideration (RFR). The Agency requested that the Commission reconsider the July 23, 2020 decision, claiming that the decision involved a clearly erroneous interpretation of material facts and law; and if the decision was allowed to stand, it would have a substantial impact on the policies, practices or operations of the Agency. 2020005240 3 In support of its RFR, the Agency argued that it had appropriately addressed all matters in its original FAD. The Agency argued that the Commission is essentially over-reaching and lacks jurisdiction to review matters such as an internal fact-finding investigation. The Agency asserted that Complainant’s nine claims constituted a collateral attack on the Agency’s internal investigative process, and that if Complainant had concerns with the internal investigative process, she should have resorted to the Agency’s internal measures instead of lodging an EEO complaint. The Agency did not address rest of the Commission’s July 23, 2020 decision in its RFR. On September 10, 2020, Complainant responded to the Agency’s RFR. Complainant argued that, regarding the dismissed nine claims, she was not lodging a collateral attack on the Agency’s internal investigative process. Instead, Complainant asserted that the claims were demonstrative of the hostility she was subject to and that these claims were part of her hostile work environment claim. On September 30, 2020, the Agency responded to Complainant’s response. The Agency reiterated arguments previously raised and addressed the seven claims it had previously dismissed as moot. The Agency again requested, without providing any new arguments, that the Commission overturn our decision in Geraldine G. v. Dep’t of Veteran Affairs, EEOC Appeal No. 2020003244 (July 23, 2020). We determine that the matters addressed by the Agency in the instant request were raised or could have been raised below. For example, the Agency provided two responses in its RFR, but neither of these responses provided new arguments, or are persuasive in overturning our prior decision. We considered the arguments that were provided and emphasize that a request for reconsideration is not a second appeal to the Commission. In this matter, the Agency did not provide persuasive arguments in its RFR to demonstrate that Complainant’s claims were unactionable. See EEO MD-110, Ch. 9, § VII.A. We remind the Agency that a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Based on the Agency’s RFR brief, we find that it has not done so here. 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. 2020003244 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency will comply with the Order as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 2020005240 4 The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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 C.F.R. § 1614.503(f) for enforcement by that agency. 2020005240 5 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 December 9, 2020 Date