[Redacted], Shena O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2021000241 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shena O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021002892 Appeal No. 2021000241 Agency No. 2004-VI06-2020103928 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. 2021000241 (April 8, 2021). 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). The Agency’s request for reconsideration is DENIED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Physician at the Agency’s Hunter Holmes McGuire Medical Center in Richmond, Virginia. On June 8, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability and in reprisal for prior protected EEO activity, when it knowingly sent a false report to the National Practitioner Data Bank (NPDB) and/or the Ohio 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. 2021002892 2 State Medical Board, resulting in substantial harm to her. On September 11, 2020, the Agency dismissed this claim, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, as a collateral attack on the NPDB and Ohio State Medical Board proceedings. On September 16, 2020, an EEOC Administrative Judge (AJ) issued a decision for a separate EEO complaint. Following a hearing, the AJ found that the Agency discriminated against Complainant based on her disability when the Agency wrongfully denied her a reasonable accommodation, suspended her clinical privileges, and removed her from the Agency. The Agency adopted the AJ’s findings, including the awarded damages.2 Complainant appealed the Agency’s dismissal of her claim alleging disability discrimination and retaliation for knowingly sending a false report to the NPDB and/or the Ohio State Medical Board. The Agency opposed Complainant’s appeal and argued that the claim was an identical issue in the prior complaint decided by the Commission. The Agency added that the matter was moot because Complainant received all of the relief that she is seeking in the current complaint in the prior complaint. Our previous decision, in Shena O. v. Dep’t of Veterans Affs., EEOC Appeal No. 2021000241 (Apr. 8, 2021), reversed the Agency’s dismissal and remanded the complaint for processing. The appellate decision determined that the matter alleged was not a collateral attack on other adjudicatory processes, but rather an allegation of discrimination and/or retaliation on the part of Agency personnel in its report to those professional boards, which states a justiciable claim. Further, the appellate decision found that Complainant’s retaliation claim sufficiently alleges that: 1) she was subjected to an action which a reasonable employee would have found materially adverse; and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. The Agency requested a reconsideration of the appellate decision for containing clear factual errors. The Agency argues that the appellate decision does not address the fact that Complainant raised an identical claim in this complaint that was in her prior complaint. In addition, the Agency asserts that the appellate decision did not address that Complainant sought, and received, the identical relief requested in this complaint that was included in her prior complaint, rendering this complaint moot. The Agency concludes that these omissions are clearly erroneous interpretations of material fact that require reversal of the appellate decision. ANALYSIS AND FINDINGS 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. In its request, the Agency argues that the claim has already been decided in her prior EEO complaint. 2 Complainant appealed the award for pecuniary damages and attorneys’ fees, which will be addressed separately in EEOC Appeal Number 2021000890. 2021002892 3 However, we find that this claim was not included, nor adjudicated, in the prior complaint. Specifically, Complainant’s prior complaint included the following claims: 1. Whether the Agency subjected Complainant to discrimination based on her disability when: a. since 2014, the Agency failed to provide Complainant with the equipment necessary to reasonably accommodate her disability, which affected Complainant’s ability to do her job; and/or b. on or about October 7, 2015, Complainant received a rating of unsatisfactory on her Focused Professional Practice Evaluation, which resulted in the suspension of her clinical privileges on or about November 18, or 19, 2015. 2. Whether the Agency subjected Complainant to discrimination based on her disability and/or retaliation for her EEO activity when on or about December 3, 2017, she was removed from her employment with the Agency. The AJ found that the Agency did not retaliate against Complainant, but that it discriminated against Complainant based on her disability when the Agency wrongfully denied her a reasonable accommodation; suspended her clinical privileges; and removed her from the Agency. AJ Decision at 29. We find that this claim was not previously adjudicated in a prior complaint and it was not previously raised. The Agency also argues that the claim is moot because Complainant received all of the relief that she is seeking in the instant complaint, but we find that the Agency is incorrect. In its earlier appeal brief, the Agency argued that Complainant’s requested remedies to rescind the false report were “verbatim - even down to the punctuation and spacing” to the requested remedies in her pre-hearing statement for her other EEO complaint. Agency Appeal Brief at 7-8. However, a review of Complainant’s formal EEO complaint shows that she requested additional remedies for this claim, such as compensatory damages. Complainant Addendum to VA Form 4939. While the AJ ordered the Agency to “void the report concerning Complainant that it sent to the National Practitioner Data Bank on or about December 13, 2018,” the AJ only awarded compensatory damages for the Agency’s wrongful denial of reasonable accommodation; suspension of Complainant’s clinical privileges; and removal from employment. AJ Decision at 33-4. The AJ did not award Complainant any compensatory damages for the Agency’s submission of the false report to the NPDB and/or the Ohio State Medical Board. Accordingly, we find that the Agency has not shown that the claim is moot. We find that the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law and DENY the Agency’s request for reconsideration. 2021002892 4 The decision in EEOC Appeal No. 2021000241 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. 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). 2021002892 5 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. 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 March 8, 2022 Date