[Redacted], Nicki M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2019003882 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 2019003882 Hearing No. 560-2016-00315X Agency No. 200J-0334-2016100311 DECISION On June 10, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning an equal employment opportunity (EEO) complaint claiming the Agency had subjected her to 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Field Examiner, GS-11, managed by the Agency’s Fiduciary Hub in Lincoln, Nebraska. On October 28, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American, Black), mental disability (PTSD, Military Sexual Trauma and Major Depressive Disorder) and in reprisal for prior protected EEO activity when: 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 2019003882 1. On March 25, 2015, an employee was transferred to the Lufkin, Texas, facility without the position being announced although Complainant sought interest for the transfer; 2. On April 20, 2015, Complainant was threatened with a Japanese sword by a veteran; 3. On May 21, 2015, Fiduciary Hub Coach (Coach), issued Complainant a pre-performance improvement plan (pre-PIP), which was later rescinded on June 24, 2015; 4. On August 3, 2015, Fiduciary Hub Manager (Manager), rescinded Complainant's transfer offer to the Lufkin Veterans Benefits Administration (VBA) area; 5. On September 15, 2015, Manager restructured Complainant's territory (which included Harrison County, Texas and five other counties) in order to circumvent Complainant obtaining a transfer to the Lufkin facility; 6. On September 16, 2015, Complainant's request for a reasonable accommodation was denied; 7. Beginning August 2015 and ongoing, Agency management intentionally delayed the processing of Complainant's completed work/production in order to set her up for failure; 8. Beginning December 15, 2015 and ongoing, Complainant was assigned more complex cases (such as hostile veterans who posed a threat); and 9. On January 21, 2016, Complainant's Supervisor made inconsistent statements to her about her within grade increase. After an investigation, the Agency provided Complainant a copy of its report of investigation; the Agency notified Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing before an AJ. On August 29, the AJ assigned to the case issued a discovery order. Between September 2017 and February 2108, the parties conducted discovery in accordance with the AJ’s order. On March 22, 2018, the Agency filed a motion for a decision without a hearing. The AJ had scheduled the hearing for April 23, 2019. However, on March 29, 2019, Complainant, through her representative, withdrew the request for a hearing before an AJ. On April 1, 2019, the AJ therefore cancelled the hearing and ordered the matter remanded to the Agency for issuance of a final agency decision in accordance with EEOC regulations. Also on April 1, 2019, the Agency’s legal representative emailed the AJ’s remand order to the Agency’s Office of Employment Discrimination Complaint Adjudication (OEDCA) and to the Agency’s Office of Resolution Management (ORM). The Agency’s legal representative indicated the email was of high-level importance. 3 2019003882 However, in the absence of a final Agency decision following remand, Complainant filed the instant appeal with the Commission in June 2019. On July 7, 2019, Complainant emailed the Commission and requested additional time to submit a brief in support of her appeal. On July 9, 2019, the Commission granted Complainant an extension through August 23, 2019. On July 24, 2019, Complainant submitted a timely appellate brief. On appeal, Complainant contended that the Agency’s legal representative and the AJ attempted to coerce her into settling the matter. Complainant stated that the Agency’s investigation was biased against her and improperly favored Agency management. On August 22, 2019, Agency’s legal representative sent a follow-up email to ORM and OEDCA asking whether the Agency had issued a final decision on Complainant’s case. On August 23, 2019, Agency’s legal representative received a response: “a FAD [final agency decision] has not been issued in this case as yet . . . OEDCA is backlogged.” In responding to Complainant’s appellate brief, Agency’s legal representative argued that Complainant’s appeal was premature and that EEOC should dismiss the appeal. We concur with the Agency, in that Complainant’s appeal is premature because the Agency has not yet issued a final decision on this complaint. Bethel v. U.S. Postal Svc., EEOC Appeal No. 01A30842, (Apr. 26, 2004). We also concur with Complainant that the Agency failed to comply with the AJ’s order to issue a timely issue a final decision in accordance with 29 C.F.R. § 1614.110(b). The Agency is therefore ordered to issue its final decision within the timeframe indicated below. Finally, we caution that further delay in issuance of the final decision may warrant that this Commission imposing sanctions against the Agency for noncompliance. Jordon S. v. Dep’t of Justice, EEOC Appeal No. 0120171870 (Mar 20, 2019). CONCLUSION Accordingly, we REMAND Complainant's complaint to the Agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to issue a final decision, unless the matter is otherwise resolved prior to that time. A copy of the final decision must be sent to the Compliance Officer as referenced below. 4 2019003882 IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all orders corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission. P.O. Box 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's ORDER, Complainant may petition the Commission for enforcement of the ORDER. 29 C.F.R. § 1614.503(a). 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, 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 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 5 2019003882 Alternatively, Complainant can submit 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, 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 or statement or brief in opposition must include proof of service on the other party, unless Complainant files her request via EEOC Public Portal, in which case, proof of service is mnort 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 (S0610) 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. If you file a request to reconsider and also file a civil action, 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. 6 2019003882 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 August 4, 2021 Date