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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2019004087 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zula G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004087 Hearing Nos. 461-2018-00010X and 461-2019-00090X Agency Nos. 2003-0502-2017100910 and 2003-0502-2018106027 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency did not issue a final decision within sixty (60) days as directed by an EEOC Administrative Judge’s April 1, 2019 order, regarding a formal complaint alleging unlawful 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 Registered Nurse at the Agency’s Home- Based Primary Care Nursing Service, Community Based Outpatient Clinic in Jennings, Louisiana. On March 12, 2017 and December 3, 2018, Complainant filed two EEO formal complaints consisting of the following matters: 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. 2019004087 2 Complaint 1 (Agency No. 2003-0502-2017100910): Whether Complainant was subjected to a hostile work environment based on race (African-American), disability, and in reprisal for prior protected EEO activity when: 1. on November 3, 2016, after learning Complainant had put away supplies, an Office Clerk (CW1) banged loudly on the copier and confronted Complainant in an aggressive manner; 2. on November 16, 2016, the Home Base Primary Care (HBPC) Acting Coordinator (AC) verbally counseled Complainant, accused her of hiding the van keys and disconnecting the van’s GPS, and sent an e-mail to staff with a photo of the GPS cable, insinuating that Complainant was responsible for disconnecting the GPS; 3. on December 5, 2016, Complainant became aware that the HBPC AC held private meetings only with black female staff, encouraging them to “influence” Complainant to become a team player; 4. on December 5, 2016, the HBPC AC threatened Complainant with removal by “any means necessary;” 5. on December 8, 2016, the HBPC AC reported to staff that he was not aware why Complainant was not at work, and although Complainant had informed him of her scheduled absence, he subsequently made unfair work requests and sent e-mails to create extra work for Complainant; 6. on December 14, 2016, the HBPC AC removed Complainant’s prior reasonable accommodation regarding the use of a van to visit patients; 7. on December 14, 2016, the HBPC AC violated Complainant’s privacy when he informed staff of her disability/accommodation, and made false accusations regarding the length of time the van was in her possession; 8. on January 11, 2017, the HBPC AC intentionally delayed Complainant access to a van and subsequently brought her a “soiled and dangerous” vehicle to use; 9. on January 11, 2017, the HBPC AC confronted Complainant in an aggressive manner regarding her attendance at a staff meeting; and 10. from February 14, 2017 through July 25, 2017, Complainant’s request to telework as a reasonable accommodation was delayed and denied. 2019004087 3 Complaint 2 (Agency No. 2003-0502-2018106027): Whether Complainant was subjected to a hostile work environment based on reprisal for prior protected EEO activity when: 1. on January 24, 2018, July 18, 2018, and August 2, 2018, Complainant’s second level supervisor (S2), Associate Director for Patient Care, and Complainant’s first-level supervisor (S1-B) HBPC Nurse Supervisor, failed to take action when CW1 and HBPC AC submitted Complainant’s patient information and personal information, false reports of medical misconduct, patient abuse, and negligence to an online and local newspaper, and local television station; 2. on May 21, 2018, S1-B treated Complainant in a disparate manner when she assigned Complainant additional work assignments which increased Complainant’s travel time, and allowed a co-worker with a smaller patient workload to work overtime; 3. on August 2, 2018, Complainant was falsely accused of attaching a media device to a government computer, resulting in her being investigated for a security violation; 4. on August 8, 2018, S2 and S1-B failed to act when Complainant reported continued problems with her computer access, staffing levels, and delayed care; 5. on August 8, 2018, S2 made “intimidating” remarks about Complainant filing “further” EEO claims; 6. on August 31, 2018, S1-B assigned Complainant to obtain opioid consents from all her patients on narcotics which was outside her scope of practice; 7. on September 4, 2018, S1-B assigned Complainant clerical duties involving obtaining fax numbers for the clinic; 8. as of September 12, 2018, management officials allowed the Jennings HBPC to be understaffed in professional and administrative positions, which negatively affected Complainant meeting her performance goals and put her at risk for physical harm; 9. from September 13, 2018 through November 4, 2018, S1-B and Human Resources (HR) staff failed to process Complainant’s leave requests which resulted in the loss of thousands of dollars in pay and benefits; 10. on November 15, 2018, Complainant became aware that S1-B failed to record leave requests resulting in her being charged AWOL for 40 hours for the current pay period and 80 hours for the two prior pay periods; 11. as of November 29, 2018, S1-B had not corrected Complainant’s leaving posting errors and failed to ensure her leave requests were correctly entered; 2019004087 4 12. as of November 29, 2018, Complainant continues to be subjected to working with limited or without working equipment (cell phone, laptop, and network drives) which affects her ability to complete work and takes time away from patient assignments; 13. in January 2019, S1-B denied Complainant access to the VA system resulting in an increased workload by preventing equal access to emails, training, and patient document records; 14. in January 2019, S1-B denied and delayed Complainant’s request to reassign her patients; 15. in January 2019, S1-B refused to act concerning Complainant’s computer access; and 16. in January 2019, S1-B refused to notify Complainant of her pending training requirements. The record indicates that Complainant requested a hearing on both complaints before an EEOC Administrative Judge (AJ). On April 1, 2019, AJ1 dismissed the hearing request for Complaint 1 and remanded the complaint to the Agency for issuance of a final decision based on the evidence developed during the investigation. The AJ’s decision provided that Complainant had the right to appeal to the Commission if the Agency did not issue a final decision within sixty (60) days. On June 12, 2019, Complainant, through counsel, filed the instant appeal concerning Complaint 1. On July 15, 2019, AJ2 dismissed Complainant’s hearing request regarding Complaint 2 and remanded the matter to the Agency for a final decision. Shortly thereafter, Complainant amended her appeal before the Commission to include the matters identified in Complaint 2. Subsequently, on December 30, 2019, the Agency issued a consolidated final decision concerning Complaint 1 and Complaint 2, finding no discrimination. Thereafter, on April 9, 2021, the Agency submitted a motion to dismiss finding that the Commission lacked jurisdiction to adjudicate Complainant’s appeal because Complainant had appealed the Agency’s December 30, 2019 final decision to United States District Court Western District of Louisiana (identified as Civil Action No. 2:20-cv-00399-JDC-KK). ANALYSIS AND FINDINGS Our review of Complainant’s March 27, 2020 civil lawsuit, Civil Action No. 2:20-cv-00399- JDC-KK, reveals that it encompasses the same matters in the instant complaints. The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action “shall terminate Commission processing of the appeal.” 2019004087 5 Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (Oct. 25, 1988). Therefore, Complainant’s appeal of the Agency’s final decision in Complaint 1 and 2 is DISMISSED. 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). 2019004087 6 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 (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 June 3, 2021 Date