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

Equal Employment Opportunity Commission

Jan 5, 2021

Appeal No. 2020004815 (E.E.O.C. Jan. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilda M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004815 Agency No. 2003-0674-2018105594 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 29, 2020 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Food Service Worker, WG-3, at the Agency’s VA Medical Center in Waco, Texas. On November 14, 2018, Complainant filed a formal EEO complaint alleging she was subjected to discriminatory harassment based on age (over 40) and reprisal for engaging in protected EEO activity, starting in June 2019 that culminated in her termination from her position on October 4, 2018. After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative 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. 2020004815 2 Judge (AJ). The record indicates that Complainant requested both an administrative hearing and a final decision. On July 29, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant asserts, in pertinent part, that she was subjected to a hostile work environment. ANALYSIS AND FINDINGS The Agency’s July 29, 2020 final decision, which gives appeal rights to the EEOC, only addresses the issue of Complainant’s termination. However, the record indicates that the Agency has ignored other claims in the instant formal complaint that were accepted by the Agency. Specifically, the Agency’s February 15, 2019 Notice of Acceptance indicates that Complainant’s formal complaint alleged that she was subjected to a hostile work environment based on age and in reprisal for protected EEO activity when: 1. on June 8, 2018, the Police Supervisor attempted to coerce Complainant into falsely admitting she keyed the car of a co-worker and stated, “You are at the age that you do not need to be looking for another job;” 2. on June 20, 2018, the Police Supervisor falsely accused Complainant of keying a car on campus and stated, “come in, shut up and don’t cry this time. I tried to get you to tell the truth. I have you on surveillance camera, and what do you think about that?” 3. on June 29, 2018, the Police Supervisor and a Police Officer, under false pretenses and based on an alleged report, searched Complainant’s car for explosives, drugs, and alcohol; 4. on July 30, 2018, another Police Officer falsely accused Complainant of disorderly conduct and defecating in the trash can of room BB122, Building 94, on July 24, 2018, resulting in a citation being issued to her; and 5. by notice dated October 4, 2018, Complainant was removed effective October 18, 2018. The Notice of Acceptance further indicates that claim 5 was accepted as an independently actionable claim (a discrete act) and claims 1 through 5 were accepted and classified as Complainant’s harassment claim. Because all five claims were accepted by the Agency, all five claims were included in the report of investigation. 2020004815 3 It appears that Complainant’s pre-termination harassment claims were ignored by the Agency in its decision without explanation. Therefore, we remand the complaint back to the Agency so that all claims in the complaint may be adjudicated, as well as to clarify whether Complainant seeks a hearing by an EEOC AJ or an immediate final decision in this matter based on the evidence developed during the investigation. The Agency’s decision finding no discrimination regarding Complainant’s removal claim is VACATED. Claims 1 through 5 are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to determine whether or not its prior investigation of this complaint adequately addressed all five accepted claims. If it determines further investigation is need, it should immediately commence a supplemental investigation to be completed in no more than sixty (60) days. If it determines the previous investigation adequately addressed all five claims, it shall reissue the report of investigation to Complainant with a notice, pursuant to 29 C.F.R. § 1614.108(f), of her right to request either a hearing before an EEOC AJ or an immediate final agency decision. If Complainant requests an immediate final agency decision, the Agency shall address all five claims in that decision within sixty (60) days of receipt of Complainant’s request. 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. 2020004815 4 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. 2020004815 5 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 January 5, 2021 Date