[Redacted], Yessenia H., 1 Complainant,v.Dat P. Tran, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2020002117 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yessenia H.,1 Complainant, v. Dat P. Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002117 Agency No. 200H-0529-2018102015 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), alleging noncompliance with the Agency’s May 16, 2019 final decision concerning a formal 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Certified Nurse Practitioner (CNP) in Butler, Pennsylvania. On March 29, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African-American) and in reprisal for prior protected EEO activity. By letter dated May 8, 2018, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: A. Whether Complainant was subjected to a discriminatory hostile work environment based on race (African American), and/or reprisal for prior protected 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. 2020002117 2 from July 2017 through the present, she: was subjected to inappropriate comments and remarks, was asked to provide cultural awareness training for nurses and staff at the facility; had her reports of inappropriate conduct and behavior not properly addressed, did not receive new employee orientation training, was subjected to breaches of confidentiality, was scrutinized more than other employees; and was placed under investigation and detailed to a new service. B. Whether Complainant was subjected to race discrimination and/or reprisal for prior EEO activity when, on March Care to 14, 2018, she was placed under investigation for alleged medication errors, and detailed from Home Based Primary Care to Education Service for 90 days, where she was instructed to refrain from providing patient care. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its final decision of May 16, 2019, the Agency concluded that Complainant proved that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Complainant was subjected to a hostile work environment based on race. In addition, the Agency found that Complainant was retaliated against for engaging in protected activity when her patient care privileges were removed and she was detailed to Education Services on March 14, 2018. Finally, the Agency found that Complainant was subjected to discrimination when she was issued an Unsatisfactory Proficiency Report on March 28, 2018. The final decision ordered the following corrective action be taken: 1. To make Complainant whole, the Agency must restore her “to a position where she would have been were it not for the unlawful discrimination.” Therefore, pursuant to 29 C.F.R. § 1614.501(c)(5), the Agency shall, if it has not done so already, immediately offer to place Complainant back in her patient care position in Home Based Primary Care at VAMC in Butler, Pennsylvania (or a comparable position at a comparable location as agreed upon between Complainant and the Agency). The Agency must also provide any and all training necessary for the position. 2. Complainant, if appropriate, must also be provided with back pay (less interim earnings), and interest, in any and all benefits or training that she would otherwise have earned or received but for the prohibited discrimination. Where applicable, back pay specifically includes retroactive tax-deferred contributions to Complainant’s TSP account and any earnings that would have accrued during the relevant period. Complainant shall be required to assist management in this regard by providing any information reasonably requested by management, including evidence of interim earnings, as necessary to implement the relief ordered herein. 2020002117 3 3. Management shall also restore any leave (annual, sick, or leave without pay) used as a result of the discrimination. 4. Management shall expunge from all official agency records any reference to the March 14, 2018 removal of Complainant’s patient care privileges, and Complainant’s March 14, 2018 detail to Education Services, and Complainant’s March 28, 2018 unsatisfactory proficiency report. 5. Pursuant to 29 C.F.R. 1614.501(a)(5), the Agency will commit to Complainant, in writing, that it will cease from engaging in the unlawful employment practice found in this case, namely race discrimination, and reprisal, that it will not engage in similar unlawful employment practices. 6. The Agency will conduct a supplemental investigation regarding Complainant’s entitlement to compensatory damages. 7. The Agency shall pay Complainant reasonable attorney’s fees and costs. 8. Pursuant to 29 C.F.R. § 1614.501(a)(2), the Agency will take whatever corrective, curative, and preventative actions and will adopt whatever measures are necessary to ensure that violations of federal EEO law similar to those found in this case do not recur. 9. The Agency will provide 4 hours of EEO training on race discrimination to named Agency officials and employees. 10. The Agency will consider taking disciplinary action against the responsible management official. 11. The Agency will a post notice regarding the discrimination at the VAMC in Butler, Pennsylvania.2 On October 15, 2019, the Agency issued a final decision on the issue of compensatory damages. Therein, the Agency awarded $75,000.00 in non-pecuniary compensatory damages and $150.00 in pecuniary damages. Complainant filed the instant appeal alleging noncompliance with certain portions of the Agency’s May 16, 2019 final decision and appealing the Agency’s October 15, 2019 final decision on compensatory damages. Specifically, Complainant alleges that the position she was placed in was not similar to her initial position. Complainant asserts that she was told to “take it or leave it.” Complainant further asserts that she was required to pay for her traveling expenses for her training, an expense she asserts she would not have, but for the discrimination. 2 These provisions are re-numbered herein for ease of reference. 2020002117 4 Complainant also asserts that her trainers were aware of her prior EEO complaint. Complainant states that the Agency has not shown her that it has expunged references to her removal of patient care privileges, her detail to Education Services, and her March 2018 unsatisfactory proficiency report. Complainant further asserts that the Agency did not provide communication her to that it will cease from discriminating against her in the future. Finally, Complainant asserts that the Agency’s compensatory damages award did not consider the duration and extent of the harm she experienced. On January 13, 2020, Complainant filed an appeal with the Commission alleging noncompliance with specific provisions of the Agency’s May 16, 2019 final decision. The Agency asserts that it is in compliance with the final decision and that Complainant’s appeal alleging noncompliance is untimely. Regarding Complainant’s assertion that the position she was placed in by the Agency was not substantially similar to her initial position, the Agency asserts that it attempted to return her to her CNP position in Home Based primary care. However, the position was encumbered. The Agency asserts that on June 3, 2019, it offered Complainant a substantially similar position as a CNP in the Compensation and Pension division at the Agency’s Butler facility. According to the Agency, Complainant accepted this position on July 11, 2019, and she began working in the position effective September 29, 2019. The Agency asserts that this matter is untimely because she waited over three months to express her displeasure. The Agency also asserts that Complainant’s appeal of the October 15, 2019 final agency decision on compensatory damages is untimely. ANALYSIS AND FINDINGS 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, 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”). Complainant’s New Position We find that Complainant’s allegation of noncompliance regarding her placement in her new position is untimely. Commission regulations provide, in pertinent part, that: Final action that as not been the subject of an appeal…shall be binding on the Agency. If complainant believes the agency has failed to comply with…the decision, complainant shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known 2020002117 5 of the alleged noncompliance….The Agency shall resolve the matter and respond to Complainant in writing. If the agency has not responded to complainant, in writing, or if complainant is not satisfied with the agency’s attempt to resolve the matter, complainant may appeal to the Commission for a determination…the complainant may file such an appeal 35 days after he or she has served the agency with allegations of noncompliance but must file an appeal within 30 days of his or her receipt of an agency’s determination. 29 C.F.R. §§ 1614.504(a)-1614.504(b). The record reflects that Complainant started in the new position effective September 29, 2019. Shortly thereafter, Complainant informed an official in the Agency’s Office of Resolution Management (ORM) that she did not find the new position comparable to her former position. The record contains an email from an ORM official dated October 3, 2019. Therein, the ORM official stated that she received Complainant’s voicemail and that “[i]f [Complainant] believe[s] that the facility is not abiding by the ordered remedy, or [she] believe[s] that the offered position does not equate to what was ordered, [she] may petition the EEOC’s Office of Federal Operations as is outlined under “right of appeal” on pages 19/20 of the decision.” Thus, while Complainant appeared to have concerns shortly after starting her new position, she did not appeal with OFO until four months after starting the position and over three months after informing ORM, she did not find the new position comparable. Thus, we find that Complainant’s January 2020 appeal on this matter to be untimely. Training Regarding the New Position We find that the Agency is in compliance with its final decision regarding training. The record contains a record of numerous trainings that Complainant has attended since starting in her new position. In addition, while Complainant has alleged that she had to pay travel expenses regarding trainings relating to her new position, the record is devoid of evidence reflecting this. Rather, the record reflects that the Agency paid travel expenses for Complainant related to her trainings after she submitted vouchers. Finally, to the extent, Complainant alleges that she was subjected to discrimination and/or retaliation at these trainings, she should contact an EEO Counselor, if she wishes to pursue these matters through the EEO process. Expungement from Agency Records We find that the Agency is in compliance with the provision in its final decision ordering it to expunge from Agency records any reference to Complainant’s March 14, 2018 removal of patient care privileges, her March 14, 2018 detail to Education Services, and her March 28, 2018 unsatisfactory proficient report. The record contains a memorandum from the Acting EEO Program Manager (EM1) dated August 16, 2019. Therein, EM1 certifies that the Agency has expunged from its records any reference to Complainant’s removal of patient care privileges, detail to Education Services, and her March 28 ,2018 unsatisfactory performance rating. 2020002117 6 Agency’s Written Commitment to Cease from Engaging in Unlawful Employment Practices We find that the Agency is in compliance with this provision. The record contains a memorandum from the Interim Director, Butler VA Health Care System to Complainant dated August 16, 2019. Therein, the Interim Director stated, in pertinent part: [p]lease allow this letter to affirm management at the Butler VA Health Care System is committed to preventing all form of discrimination based on race. Management will take all necessary steps to prevent and stop the unlawful employment practices you were subjected to. Management will not engage in similar unlawful employment practices, and no reprisal will be taken against you for filing and pursuing this or any other complaint under Federal EEO law. Based on the foregoing, we find the Agency is in compliance with this portion of the Order in its Agency’s May 19, 2019 final decision. Appeal of Final Agency’s Decision on Compensatory Damages We find that Complainant’s appeal of the Agency’s decision on compensatory damages is untimely. Complainant asserts, on appeal, that she received the Agency’s decision on compensatory damages on October 16, 2019. The October 15, 2019 final decision properly informed Complainant that she had thirty days from receipt of the final decision to file an appeal with OFO. However, Complainant did not file an appeal until January 13, 2020, outside of the applicable time period. While Complainant asserts that she was engaging in mediation with the Agency3 and that it took a while for her to find legal counsel, we find that these justifications are not sufficient for extending the applicable time limit. Accordingly, Complainant either untimely raised her concerns or the record does not support a finding that the Agency has failed to comply with its May 19, 2019 final decision.4 In addition, Complainant’s appeal of the Agency’s October 19, 2019 final decision regarding compensatory damages is untimely and is hereby DISMISSED. 3 The Agency asserts that the mediation was not for the current complaint at issue but for a subsequent complaint. 4 We only address in this decision provisions of the Agency’s May 19, 2019 final decision that Complainant specifically alleged that the Agency failed to comply with. 2020002117 7 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. 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). 2020002117 8 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. 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 February 2, 2021 Date Copy with citationCopy as parenthetical citation