[Redacted], Joel M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2020003249 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joel M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003249 Agency Nos. 200J-0655-2019102417 200J-0655-2018101101 DECISION On April 27, 2020, 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 April 14, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the matter for further processing. ISSUE PRESENTED The issue presented on appeal concerns whether the record has been adequately developed to determine whether the Agency subjected Complainant to a hostile work environment based on sex, disability, age, and reprisal. 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. 2020003249 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Compliance and Business Integrity (CBI) Auditor, GS-301-11, at the Aleda E. Lutz VA Medical Center in Saginaw, Michigan. On January 16, 2018, Complainant filed an EEO complaint, namely Agency No. 200J-0655- 2018101101, alleging that the Agency discriminated against him in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) of 1967, and Section 501 of the Rehabilitation Act of 1973. Following Complainant’s request to amend his complaint, the Agency accepted the following claims for investigation: 1. Whether Complainant was subjected to a hostile work environment based on sex (male), disability (physical), age (over 40), and reprisal for prior protected EEO activity when: a. Beginning on July 6, 2017, and continuing through the present, his first level supervisor (S1) has not given him credit for the work that he performs; b. S1 is unwilling to provide assistance to him with administrative work and leave issues; c. S1 attempted to revoke his telework agreement, which had been provided to him as a reasonable accommodation; d. On July 6, 2017, while on leave under the Family and Medical Leave Act (FMLA), he had to return to work and spend three hours working with human resources and payroll to enter his leave into the Agency’s Time and Attendance System (VATAS); e. On July 11, 2017, while on FMLA, he had to spend six hours in the office making corrections to his telework documentation; f. On July 12, 2017, while on FMLA, he was required to return to work to complete paperwork and correct logistical issues involving the telework process; g. On July 13, 2017, while on FMLA, he was required to return to work in order to pick up computer equipment; h. On a daily basis, S1 talks down and is rude to him, which gives him the impression that she does not want him working with her; and i. On March 13, 2018, he was issued a proposed removal. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI1) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 2020003249 3 While Complainant’s hearing request was pending with the Commission, Complainant filed a second formal EEO complaint with the Agency, namely Agency No. 200J-0655-2019102417, on March 18, 2019, alleging discrimination based on disability when: 2. On February 6, 2019, his privacy was violated when the Reasonable Accommodation Coordinator sent his medical records and reports to S1. Following the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI2) and notice of his right to request a hearing. Complainant did not request a hearing into the merits of claim 2 and elected to have the Agency issue a final decision. He subsequently withdrew his pending hearing request regarding claim 1. In accordance with Complainant’s request, the AJ dismissed Complainant’s hearing request and remanded the matter to the Agency to issue a final decision on the merits of claim 1. On remand of claim 1, the Agency consolidated claims 1 and 2 and issued a final decision on April 14, 2020, pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision determined that it did not subject Complainant to discrimination as alleged in claims 1 and 2. The Agency found that there was no improper disclosure as raised in claim 2. As for Complainant’s allegations of harassment in claim 1, the Agency found that the underlying allegations were insufficiently severe or pervasive to constitute harassment, as they pertained to Complainant’s disagreement with management’s decisions or attempts to correct his behavior and conduct. For these reasons, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Neither party submitted contentions on appeal. 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 Chapter 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”). 2020003249 4 ANALYSIS AND FINDINGS After a thorough review of the record, we find the evidence before us to be insufficient to determine whether the Agency subjected Complainant to retaliatory harassment when S1 issued Complainant a Notice of Proposed Removal on March 13, 2018. In this regard, while S1 averred during the EEO investigation that she issued Complainant the proposal “based upon the facts surrounding the complainant’s performance,”2 we note that the Agency did not include a copy of the proposal in the ROI. Under our regulations and EEO MD-110, agencies are required to develop a complete and impartial factual record. See 29 C.F.R. § 1614.108(b); and EEO MD-110 at Chap. 6. Given that the notice contains S1’s reasoning for proposing Complainant’s removal, it is crucial for us to examine the notice in order to assess the legitimacy of the Agency’s action. Furthermore, we note that Complainant alleged during the EEO investigation that his first and second level (S2) supervisors met on November 17, 2017, to begin the process of removing him from federal service.3 However, neither S1 nor S2 addressed that contention or his other statements regarding the proposed removal action.4 As the Agency has failed to develop a complete and impartial factual record, we conclude that further development of the record is warranted.5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision and REMAND the entire complaint to the Agency for further development. 2 See ROI1 at 91-92. 3 See ROI1 at 50-52. 4 As discussed above, S1 stated that she issued the proposal “based upon the facts surrounding the complainant’s performance.” S2 stated that she was “unfamiliar [with] the proposed removal allegations” because she left the facility in February 2018. ROI1 at 104. Notably, however, S2 did not address Complainant’s allegation that S1 and S2 began the removal process on November 17, 2017. 5 To avoid piecemeal litigation and fragmentation of the EEO complaint, we decline to adjudicate the remaining claims and shall remand the entire complaint to the Agency. See EEO MD-110 at Chap. 5, § III. 2020003249 5 ORDER The Agency shall take the following actions: 1. Within ninety (90) calendar days of the date this decision is issued, the Agency shall complete a supplemental investigation into claim 1(i) concerning the proposal to remove Complainant from federal service. The supplemental investigation shall include the following: a. a copy of the March 13, 2018, proposal to remove Complainant from federal service; b. documentation as to whether the removal action was effectuated, and if so, the Agency should include a copy of the removal decision letter;6 c. detailed supplemental affidavits from S1 and S2 concerning the extent of their involvement in proposing Complainant’s removal and their reasoning for issuing the proposal; d. if additional people other than S1 and S2 were involved in planning, formulating, advising, issuing, or concurring with the proposal to remove Complainant, the Agency shall also obtain affidavits from these individuals concerning the extent of their involvement;7 and e. in conducting the supplemental investigation, the Agency shall afford Complainant a reasonable period to respond to the supplemental affidavits, if he so chooses. 2. Within one hundred twenty (120) calendar days of the date this decision is issued, the Agency shall issue a new final agency decision on the merits of the entire complaint. 3. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission’s Decision.” 6 We note that no decision had been reached on the proposal at the time of the EEO investigation, as the facility had “been told to stand down” until the Agency’s Office of Accountability and Whistleblower Protection completed an investigation into Complainant’s separate whistleblower complaint. ROI1 at 170. Both ROI1 and ROI2 are devoid of this information. 7 For example, S2 stated that she left the facility in February 2018. If another person served as the concurring official in the March 2018, proposal to remove Complainant, the Agency should obtain an affidavit from that individual. 2020003249 6 The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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. 2020003249 7 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. 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. 2020003249 8 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 September 2, 2021 Date Copy with citationCopy as parenthetical citation