Vickie P.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2017

0120150493 (E.E.O.C. Dec. 19, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Vickie P.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120150493

Agency No. 200H-0523-2013103571

DECISION

On November 14, 2014, 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
October 17, 2014, final decision concerning her 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. For the following reasons, the Commission
REVERSES the Agency’s final decision, in part.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse Post-Doctoral
Fellow with the Center for Health Care Organization Implementation and Research (CHOIR).2

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 CHOIR is a multi-disciplinary field research center and one of nineteen Centers of Innovation
(COINs) funded by the VA’s Health Services Research and Development Service (HSRD) that
has academic affiliations with Boston area medical schools and institutions. CHOIR’s two
campuses are located at the Boston and Bedford Veterans’ Affairs (VA) Medical Centers
(BOSTON and BEDFORD, respectively). Complainant’s office was located at BEDFORD.
CHOIR falls under the VA’s Office of Research and Development organizational structure.
CHOIR Post-Doctoral fellows participate in CHOIR research projects, as well as develop their
own individual projects.
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On October 7, 2013, Complainant filed her first EEO complaint (Claim A) alleging that the
Agency subjected her to sexual (and sex-based) harassment (female) when: (1) beginning in the
fall 2012 until June 2013, the Executive Director (MENTOR 1) of the Agency’s Massachusetts
Veterans Epidemiology Research and Information Center (MAVERIC) in Boston,
Massachusetts3 referred to her as “girl” in a patronizing and demeaning manner in emails and
conversations; (2) throughout their mentoring relationship, MENTOR 1 would get dressed in
front of her; (3) throughout their mentoring relationship, MENTOR 1 made sexually
inappropriate comments to her; (4) in May 2013, MENTOR 1 asked her to have an affair with
him; (5) in May and June 2013, MENTOR 1 attempted to take credit for her research work and
undermine her research efforts; (6) on June 2, 2013, MENTOR 1 told her that she had to work
with him if she wanted to continue her work, and (7) in June 2013, and the following months,
MENTOR 1 discouraged other employees at BEDFORD from working with her on her research.

On December 20, 2013, Complainant filed a second EEO complaint (Claim B) alleging that she
was discriminated against and subjected to a hostile work environment based on her prior
protected activity (reprisal) when: (1) on July 3, 2013, the Director (DQUERI), eHealth Quality
Enhancement Research Initiative (QUERI)4 discouraged a Research Health Scientist (MENTOR
2) who worked at the VA Central Western Massachusetts Healthcare System (CENTRAL-
WESTERN) from mentoring Complainant; and (2) on September 9, 2013, MENTOR 2
terminated her mentoring relationship with Complainant.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination or retaliation as alleged.

FACTUAL BACKGROUND

During the relevant time-frame, Complainant’s first-line supervisor was a Physician Researcher
with CHOIR whose office was located at BEDFORD (S1). Complainant’s second-line
supervisor was one of two Directors of CHOIR (S2) whose office was located at BEDFORD.
Complainant’s position and salary (as a Post-Doctoral Fellow) were dependent on grant funding.
Complainant’s research at the time involved cancer genomics and informatics, with a focus on
identifying whether veterans are receiving appropriate genetic testing and determining if

3 MAVERIC is one of three epidemiological research centers established by the Department of
VA Research and Development, Cooperative Studies Program (CSP) to conduct observational,
population-based research. Like CHOIR, MAVERIC is another program within the VA’s Office
of Research and Development. Although part of the Department of Veterans Affairs,
MAVERIC is an independent entity from the Boston Veterans Affairs Medical Center although
it utilizes office space in the same physical building that BOSTON occupies.
4 Like CSP, QUERI is an VA organization-wide program that is part of the VA’s Office of
Research and Development.
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disparities in access to genetic testing existed. In May 2012, Complainant sought out MENTOR
1 to be one of her mentors on her grant applications and research. At the time in question,
MENTOR 1 was the only person in the Boston area VA system who oversaw cancer genetics
research. As a mentor, MENTOR 1 gave Complainant feedback on her work and assisted with
her grant applications and research.

Claim A - Sexual and/or Sex-Based Harassment

Complainant asserts that beginning in the fall of 2012, MENTOR 1 started to refer to her as
“girl” in inappropriate and demeaning ways. Specifically, she states that he often said “girl,”
“you da girl” and “my girl” in person or in his emails to her. Complainant further stated that she
dealt with this by “ignoring it.” Complainant also asserts that there were times when she arrived
at MENTOR 1’s office (which was located at BOSTON) for a scheduled meeting to find him
barefoot and without his belt fully buckled as he was in the process of dressing after returning
from running. Complainant testified that MENTOR 1 never took her up on her repeated offers to
wait outside while he finished getting dressed. Complainant also testified that MENTOR 1
spoke to Complainant about his daughters’ sexual activity after they had come to his office for a
visit one time. Complainant also asserts that MENTOR 1 told her that his father molested his
sister. Complainant further asserts that MENTOR 1 said very negative things about his wife and
told her that he wanted to kill his wife.

MENTOR 1 acknowledges that he took a telephone call in his office when Complainant was
present that involved the sexual assault of his sister by his father. MENTOR 1 explains that he
simply told Complainant the subject of the call when he was finished. MENTOR 1 does not
recall saying anything to Complainant about the sexual activities or relationships of his
daughters. He also denies telling Complainant that he wanted to kill his wife.

The undisputed record supports the assertion that in or about January 2013, Complainant
notified S1 about MENTOR 1’s use of the word “girl” and that he “was getting inappropriate.”
According to Complainant, S1 told her that S2 would manage him. S1 testified that
Complainant told her that MENTOR 1 had been “flirty” with her and had told her he wanted to
kill his wife. S1 states she took no action because Complainant said she could handle the
situation.

Complainant testified that in mid to late May 2013, MENTOR 1 asked her if she would ever like
to have an affair, which she understood to mean that he wanted to have an affair with her.5
MENTOR 1 denies this allegation. She states she told him she did not approve of affairs and she
left his office. Complainant asserts that after rejecting MENTOR 1’s sexual advance, he
attempted to undermine her research efforts.

5 While the formal complaint indicates that there were two occasions when MENTOR 1 asked
Complainant to have an affair, Complainant’s oral testimony clarifies that there was only one
occasion when this occurred.
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Specifically, according to Complainant, MENTOR 1 attempted to take credit for her research
during a conference call the two of them had with the VA’s National Director of Pathology
(NDP) and a representative of Quest Diagnostics, Inc. (QUEST), in late May 2013. Complainant
asserts that during the conference call, MENTOR 1 referred to her research as a “Veterans
Integrated Service Network (VISN) 16 Oncology Clinical Trials initiative,” allegedly giving a
false description of the research initiative. Complainant also asserts that MENTOR 1 told NDP
and QUEST that someone from his office (not referring to Complainant) would follow up with
them to get the genetic testing data that they were discussing. According to Complainant,
sometime shortly after this call MENTOR 1 asked her for the QUEST contact information.
Concluding that this was highly inappropriate, Complainant states that she sent S2 an email
which raised her concerns about MENTOR 1 attempting to take credit for her research, but did
not say anything about sexual harassment.

Complainant asserts that the first time she saw MENTOR 1 after the sexual advance was about a
week later at a conference that was out of town. Specifically, the record shows that within a day
or two after the conference call, Complainant (with her husband) and MENTOR 1 (with his wife)
attended the American Society of Clinical Oncology conference (ASCO) that took place in
Chicago, Illinois from May 31, 2013 through June 3, 2013. Complainant testified that they were
supposed to meet with several labs at the conference about gaining access to their genetic testing
data. Complainant asserts that during the conference, MENTOR 1 tried to persuade a
representative from Novartis Pharmaceuticals Corporation to work with him and his research
program at MAVERIC rather than with Complainant (i.e., CHOIR’s) research program.
Complainant further asserts that shortly after returning from the conference, MENTOR 1 told her
(by email) that she could not submit a grant application to create a GDX nurse research initiative
because it would not work. Immediately following this email, Complainant again approached S2
with her concern that MENTOR 1 was trying to steal her research initiative.7 In response to this
allegation, various management officials spoke with both Complainant and MENTOR 1. On
June 5, 2013, S2 wrote an email to MENTOR 1 indicating that he was “increasingly concerned
both with whether [Complainant’s] interests as part of the mentor-mentee relationship and
Bedford VA strategic interests in developing new research, are being adequately protected.”
Consequently, S2 advised MENTOR 1 that he instructed Complainant not to communicate with
MENTOR 1 in any form unless S2 was a part of the interaction.

The testimonial and documentary record supports the conclusion that Complainant raised both
the research integrity issues and her complaint of sexual harassment with S2 on June 5, 2013.8

6 VISN 1, otherwise known as the VA New England Healthcare System, is one of 21 VISNs with
the VA that provide services through primary care that are supported by eight VA medical
centers. The Bedford and Boston VA Medical Centers are part of VISN 1.
7 MENTOR 1 denies Complainant’s assertion that he was attempting to steal or undermine her
research.
8 S2 testified that Complainant raised the sexual harassment issues at the same time she raised
the research integrity issues (if not before).
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The undisputed record shows that MENTOR 1 followed S2’s instructions and did not have
contact with Complainant ever again.9

Claim B - Reprisal

Complainant asserts that despite DQUERI initially encouraging MENTOR 2 to work with
Complainant, he discouraged MENTOR 2 from working with Complainant shortly after
Complainant complained that MENTOR 1 engaged in sexual harassment. Specifically,
Complainant asserts that on May 22, 2013, DQUERI encouraged MENTOR 2 to call into
Complainant’s grant presentation, which she did. Complainant also states that after the
presentation, MENTOR 2 expressed interest in collaborating with her.

The record shows that on May 22, 2013, an Administrative and Research Assistant (AAQUERI)
with QUERI emailed Complainant to introduce her to MENTOR 2, who she copied on the email.
The documentary and testimonial evidence shows that around June 4, 2013, MENTOR 2 noticed
that there was another mentor (R1) noted on the abstract of Complainant’s proposal. MENTOR
2 testified that after discovering that Complainant was working with R1 and his supervisor
(MENTOR 1), she mentioned it to DQUERI who stated he thought that there might be a conflict
between Complainant and MENTOR 1. MENTOR 2 testified that DQUERI proposed that she
talk to Complainant, then speak with MENTOR 1 to resolve any potential conflicts. MENTOR 2
emailed Complainant on June 4, 2013. Complainant responded that it was not appropriate to get
permission from R1 since he was MENTOR 1’s subordinate. She also explained that while she
was working with MENTOR 1, she held multiple roles and titles that MENTOR 1 was not
involved in. She also explained that MENTOR 1 was aware of her work with MENTOR 2.
MENTOR 2 testified that she never contacted MENTOR 1.

On June 13, 2013 (i.e., one day following a rather lengthy email exchange among management
officials regarding Complainant’s sexual harassment complaints), MENTOR 2 sent Complainant
an email indicating that she supported her research, but DQUERI “had a concern.” The concern
was not specified. Despite DQUERI’s “concern,” on June 14, 2013, MENTOR 2 agreed to
mentor Complainant on her submission of her grant application. The record contains an email
dated June 14, 2013 from MENTOR 2 asking Complainant whether she should be a “mentor or a
co-investigator.” Despite the documentary evidence to the contrary, MENTOR 2 testified that
she told Complainant that she could not mentor her but instead permitted one of her students to
work with Complainant. The documentary evidence does not support MENTOR 2’s testimony.
In addition to the June 14, 2013 email asking whether to be a mentor or co-investigator, the
record contains numerous emails that support the conclusion that MENTOR 2 was actively
engaged in mentoring or collaborating with Complainant.

Complainant further asserts, that on July 3, 2013 (i.e., shortly following her initial EEO contact
that took place on June 25, 2013) she bumped into DQUERI in the hallway and mentioned to

9 The only time Complainant and MENTOR 1 were together in person following “the affair”
comment was at the conference but they were never alone together.
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him that things were going very well with MENTOR 2. DQUERI then informed her that he did
not want MENTOR 2 working with Complainant because Complainant “will use [MENTOR 2]
to get funded and steal her ideas like [Complainant] stole [MENTOR 1’s] ideas.” Complainant
states that this upset her greatly and she responded to DQUERI that he had no idea about the
circumstances that took place between her and MENTOR 1. The record shows that shortly after
the encounter with DQUERI, Complainant informed S1 and S2 about the incident. After
learning about the incident between Complainant and DQUERI, S2 told Complainant to keep
working with MENTOR 2 and that he would speak with DQUERI. S1 also spoke to DQUERI.

On July 5, 2013, following these conversations, S1 emailed Complainant confirming
Complainant’s theory that DQUERI was attempting to block MENTOR 2 from working with
Complainant because of his desire to keep MENTOR 1 as an ally. Specifically, the July 5, 2013
email from S1 states the following: “I didn’t realize that [DQUERI] had originally encouraged
[MENTOR 2] to reach out to you. Yes, clearly he’s concerned with keeping [MENTOR 1] as an
ally.”

The record contains an email string dated July 4, 2013 (i.e., the day after the encounter between
DQUERI and Complainant), between MENTOR 2 and DQUERI with the subject line “I am not
collaborating with [Complainant]” in which MENTOR 2 states: “Don’t worry. She is very
aggressive, and opinionated.” However, despite telling DQUERI that she would not be
collaborating with Complainant, the documentary evidence supports Complainant’s assertion
that for the next month, MENTOR 2 continued to actively and enthusiastically work with
Complainant either in a mentoring or collaborative role.10

The record shows that on or about September 1, 2013, Complainant set up a meeting with
MENTOR 2, S2 and herself for September 9, 2013. In an email dated September 1, 2013,
DQUERI “strongly advised” MENTOR 2 not to serve as Complainant’s co-mentor and that he
believed that it will “hurt the division and [MENTOR 2’s] work in Central Western
Massachusetts.” DQUERI attempted to explain this email in his testimony by stating that he did
not want MENTOR 2 to work with Complainant because she already had a lot of other work on
her plate and that Complainant was aggressive and opinionated. DQUERI also testified that he
had concerns about MENTOR 2 being Complainant’s mentor as Complainant would need a lot
of guidance and it would infringe on MENTOR 2’s other activities. DQUERI denies telling
MENTOR 2 that he would fire her if she worked with Complainant. He denies telling
MENTOR 2 that Complainant would steal her ideas. DQUERI did not explain how serving as
Complainant’s mentor would hurt the division and MENTOR 2’s work in Central Western

10 The documentary record shows that Complainant and MENTOR 2 spent this time getting
MENTOR 2 approved on her Independent Review Board (IRB) protocol, filing and getting the
paperwork approved for BEDFORD to be an alternative worksite for MENTOR 2, obtaining a
VINCI space for MENTOR 2, meeting with MENTOR 2’s graduate students to show them how
to use VA Informatics and Computing Infrastructure (VINCI), and for them to show
Complainant how to use Knowtator (a general-purpose text-annotation tool).

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Massachusetts. MENTOR 2 testified that she had no idea how serving as Complainant’s mentor
would hurt the division and her work in Central Western Massachusetts.

On September 9, 2013, the same date of the scheduled EEO mediation pertaining to Claim A,
MENTOR 2 told Complainant and S2 that DQUERI would fire her if she continued to work on
the grant application with Complainant. MENTOR 2 testified that she did not want to
collaborate with Complainant as she thought it would be a bad relationship because DQUERI
did not like it and it wasn’t clear what was going on with Complainant’s relationship with R1.
MENTOR 2 also testified that she told Complainant in the September 2013 meeting that she
would continue to have her student help her and she would look for someone else to collaborate
with Complainant. The undisputed record shows that Complainant replaced MENTOR 2 with a
new mentor (MENTOR 3) in late September 2013. Complainant’s grant application was
submitted in December 2013 without any delay.

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”).

Claim A – Sexual or Sex-Based Harassment

A violation of Title VII may be predicated on either of two types of sexual (or sex-based)
harassment: (a) harassment that results in the employer taking a tangible employment action
against the employee; or (b) harassment that, while not resulting in a tangible employment
action, nevertheless creates a hostile work environment. see Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998).

To establish hostile environment harassment, Complainant must show that: (1) she is a member
of a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on the statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's circumstances. See EEOC Enforcement Guidance on
Harris v. Forklift Systems, Inc. EEO Notice No. 015.002 at 6, 9 (Mar. 8, 1994).
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If an alleged hostile work environment does not involve a tangible employment action, the
agency can avoid liability by establishing an affirmative defense consisting of two necessary
elements: (1) that the agency exercised reasonable care to prevent and correct promptly any
sexually harassing behavior; and (2) that the complainant unreasonably failed to take advantage
of preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
Ellerth, 524 U.S. at 765. “No affirmative defense is available...when the supervisor’s harassment
culminates in a tangible employment action.” Id. “A tangible employment action in most cases
inflicts direct economic harm,” “such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits.”
Ellerth, 524 U.S. at 762.

Upon review of the record, we find Complainant’s testimony to be consistent and generally
corroborated by the testimonial and documentary evidence in the record. However, we find that
Complainant fails to prove that the various incidents that she described affected a term or
condition of her employment and/or had the purpose or effect of unreasonably interfering with
her work environment and/or creating an intimidating, hostile, or offensive work environment.
Specifically, we find no tangible employment action alleged. While Complainant asserts that
MENTOR 1 attempted to undermine her research and/or steal it from her after she rejected his
sexual advance in May 2013, the undisputed record shows that MENTOR 1 was unsuccessful in
his attempts.

We also find that over a period of about nine months: (1) during unspecified times,11 MENTOR
1 stated “you go girl,” or “that’s my girl;” or “you da girl” in an effort to praise Complainant; (2)
at unspecified times throughout the mentoring relationship, Complainant arrived at MENTOR
1’s BOSTON office before he had fully buckled his belt or put his socks and shoes back on after
returning from a run; (3) on one occasion, MENTOR 1 lamented to Complainant about the fact
that his adult daughters’ were sexually active after they had come for a visit; (4) on one occasion,
after taking a phone call in Complainant’s presence on the subject, MENTOR 1 shared with
Complainant that his father molested his sister; (5) during unspecified times, MENTOR 1 said
unspecified negative things about his “wife;”12 (6) during unspecified times, MENTOR 1 told
Complainant that he wanted to kill his “wife;” and (7) on one occasion, MENTOR 1 asked
Complainant if she ever wanted to have an affair.13

While unprofessional and inappropriate, when considering each incident individually and
together as a whole, we do not find that MENTOR 1’s conduct objectively affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the

11 Other than a couple of emails in the record, the times and dates of the “girl” comments are
unspecified.
12 MENTOR 1 was not legally married to his partner, but he and his partner referred to each
other as husband and wife.
13 We find no evidence of other instances of “sexually inappropriate” comments as alleged in
Claim A(3).
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work environment. We find insufficient evidence in the record that the “girl” comments were
intended to be patronizing or demeaning. The emails in the record show that they were intended
to sound hip and be supportive.

We also find that the incidents, as described by Complainant where MENTOR 1 was caught in
his office bare-foot with his belt not fully buckled because he had just returned from a run, were
not objectively offensive or even based upon Complainant’s sex. There is no assertion by
Complainant that these incidents involved conduct that could be interpreted as sexually
motivated, other than the simple fact that he was running late. In addition, the undisputed record
shows that MENTOR 1 had his office door open all the time unless he was in a group meeting.
MENTOR 1’s co-worker (C1) who worked in an office that was across the hall from his testified
that many people at BOSTON would finish dressing in their offices after returning from a
workout. C1 also testified that she never witnessed any inappropriate conduct by MENTOR 1.

Similarly, we do not find the one incident (as described by Complainant) where MENTOR 1
lamented about his daughters’ engaging in sexual activity to be objectively offensive or based
upon Complainant’s sex. In addition, the incident where MENTOR 1 told her about his sister
being molested by his father is also insufficient to establish an offensive or hostile workplace and
on its face, was not based upon Complainant’s sex. We note that Complainant does not assert
that there was any prolonged discussion by MENTOR 1 about the molestation or description of
it, but rather MENTOR 1 simply told Complainant that it happened because she was sitting in his
office when he took a phone call about it. We also find MENTOR 1’s unspecified negative
comments about his wife and unspecified times that he stated that he wanted to kill her,
insufficient to establish a hostile work environment or to be related to Complainant’s sex.

Complainant testified that in middle to late May 2013, MENTOR 1 asked her if she would ever
have an affair, which she understood to mean that he wanted to have an affair with her. She
responded that she did not believe in affairs and left his office. While being asked to have an
affair by your mentor could reasonably create an intimidating, hostile, or offensive work
environment, the record shows that Complainant’s interactions with MENTOR 1 were extremely
limited between the time “the affair” comment was made until June 5, 2013, the day he was
informed and instructed that all contact with Complainant should cease.14 Accordingly, even
assuming that “the affair” comment was sufficient to create an unwelcome hostile environment,
the undisputed record shows that management officials took prompt corrective action to end the
harassment.15 Accordingly, for the reasons set forth herein, we find that Complainant failed to
present sufficient evidence of sexual or sex-based harassment as alleged.

Claim B - Reprisal

14 The record supports the conclusion that Complainant complained to S1 about MENTOR 1 in
January 2013, but Complainant fails to show that the incidents occurring prior to January 2013,
continued after she reported them to S1 in January 2013.
15 We note that it is undisputed that MENTOR 1 did not serve as a supervisor to Complainant.
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In cases involving allegations of reprisal, such as this one, in order to establish a prima facie
case, Complainant must present evidence showing that: (1) she engaged in a protected activity,
(2) management was aware of her participation in the protected activity, (3) management
effected some materially adverse action that adversely impacted complainant following her
participation in the protected activity, and (4) the action occurred within such a period of time
following the protected activity that a retaliatory motive can be inferred. Hochstadt v.
Worchester Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d,
545 F.2d 222 (1st Cir. 1976). See also EEOC Enforcement Guidance on Retaliation and Related
Issues, No. 915.004 (Aug. 25, 2016).

A “materially adverse action” subject to challenge under the anti-retaliation provisions
encompasses a broader range of actions than an “adverse action” subject to challenge under the
non-discrimination provisions. Given the purpose of anti-retaliation protection, it expansively
covers any employer action that “might well deter a reasonable employee from complaining
about discrimination.” An action need not be materially adverse standing alone, if the
employer’s retaliatory conduct would deter protected activity. Although “normally petty slights,
minor annoyances, and simple lack of good manners will not create such deterrence,” the
standard can be satisfied even if the individual was not in fact deterred. See Burlington Northern
& Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Upon review of the record, we disagree with the Agency’s finding with respect to Claim B. The
record shows that Complainant engaged in protected EEO activity on June 5, 2013, by telling S2
that she was sexually harassed by MENTOR 1. She again engaged in protected EEO activity on
June 25, 2013, when she first contacted an EEO counselor regarding the sextual harassment
claim. Also, Complainant participated in scheduled EEO mediation on September 9, 2013,
which is protected EEO activity.

The Agency argues that the record is devoid of evidence to support the conclusion that DQUERI
or MENTOR 2 were aware of Complainant’s protected EEO activity during the summer of 2013.
Both DQUERI and MENTOR 2 testified that they did not become aware of Complainant’s EEO
activity until 2014. In addition, both DQUERI and MENTOR 2 testified that they did not know
MENTOR 1 or his subordinate, R1. The documentary evidence contradicts this testimony. The
record clearly establishes that both DQUERI and MENTOR 2 were aware of the relationship
between Complainant and MENTOR 1 no later than June 4, 2013, when MENTOR 2 discovered
R1’s name on Complainant’s abstract proposal and the two discussed the potential conflict with
MENTOR 1.

The record shows that DQUERI supported the mentor relationship and by his initiative brought
Complainant and MENTOR 2 together in May 2013. While DQUERI testified that he did not
learn about Complainant’s EEO activity until 2014, he did not adequately explain why in mid-
June 2013 (shortly after Complainant’s first protected EEO activity) he changed his view about
MENTOR 2 and Complainant working together. Although, during his testimony, DQUERI
attempts to provide legitimate, non-retaliatory reasons for discouraging the mentor relationship
after Complainant’s protected EEO activity, his articulated reasons are not supported by the
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documentary and testimonial evidence in the record. For example, DQUERI asserts that he did
not want MENTOR 2 working with Complainant because she would take up all of MENTOR 2’s
time to work on other things. However, the record supports the fact that Complainant (and her
work) was highly respected and valued within the research community. In addition, nothing in
the record indicates that Complainant was unreasonably demanding on anyone’s time. Further,
by all written accounts, MENTOR 2 was enthusiastic about working with Complainant. Upon
review of the record, we find insufficient evidence to support any purported legitimate reason for
the complete turnaround in DQUERI’s position in mid-June 2013 which was less than one month
after he brought the two together.16

Upon review of the record, we find that the only possible reason for such an abrupt turn-around
was a desire to support MENTOR 1 by not working with Complainant following her allegations
of sexual harassment against him. Complainant asserts that S2 told her that she would never
work at BOSTON because of “what happened with MENTOR 1.” While S2 testified that he
does not specifically remember ever telling Complainant such a thing, he conceded that it was
possible he said it since he believes that if Complainant wanted to do a research study at
BOSTON “it certainly could become very difficult” because MENTOR 1 is “well known in that
research community.” S2 further testified that any research project at BOSTON would need to
go through numerous committees to get approval and he felt that it was “certainly conceivable
that issues or problems” would come up. We find that S2’s testimony corroborates the assertion
that the management culture within the research community supported retaliatory conduct
because it was conceivable that problems would occur for Complainant if she complained that
MENTOR 1 engaged in sexual harassment.

We also find numerous inconsistencies in both MENTOR 2 and DQUERI’s testimony. The
record contains several emails between DQUERI and MENTOR 2 and between MENTOR 2 and
Complainant during the relevant time-frame. The emails paint a picture that while MENTOR 2
was happy to be working with Complainant, she did not convey that to DQUERI because he did
not support it. It appears that in order to appease DQUERI, MENTOR 2 told him that she was
not going to work with Complainant because she was pushy and aggressive, yet gave
Complainant every indication that she was excited to work with her and took steps which
reasonably support the conclusion that she actually wanted to work with Complainant.17 Finally,

16 Documentary evidence supports the conclusion that on or about June 11, 2013, DQUERI’s
support of the mentor relationship first began to change.
17 DQUERI emailed MENTOR 2 on June 11, 2013 stating that he thought she was not going to
participate in Complainant’s proposal. MENTOR 2 responded to this email stating that she
agreed to meet with Complainant because she was very aggressive, implying that she only
agreed to meet her because she was so pushy. However, the documentary evidence does not
support the conclusion that Complainant was very aggressive in her interactions with MENTOR
2. Contrary to her emails with DQUERI, MENTOR 2’s email exchanges with Complainant are
all very friendly and both individuals seem eager to work together. MENTOR 2 also testified
that she told DQUERI that she did not want to mentor Complainant because he did not want her
to do it, rather than not wanting to do it herself.
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in early September 2013, shortly before the scheduled EEO mediation in Complainant’s first
EEO complaint, DQUERI pushed even harder to get MENTOR 2 to end the mentoring
relationship with Complainant, by telling her that if she continued to work with Complainant it
would harm the division and MENTOR 2’s work. MENTOR 2 finally ended the relationship
with Complainant on September 9, 2013, the same day as Complainant’s EEO mediation.

Based on the timing and the facts above and various inconsistencies in both DQUERI and
MENTOR 2’s testimony, sufficient evidence exists to support Complainant’s claim of
retaliation. The evidence shows that DQUERI suddenly and without justification changed his
position regarding Complainant’s grant proposal shortly after learning about her EEO protected
activity in June 2013. DQUERI put increased pressure on MENTOR 2 to end her working
relationship with Complainant and ultimately had to threaten MENTOR 2’s employment to get
her to terminate her mentor relationship with Complainant.

Lastly, while there is no evidence that Complainant suffered an adverse employment action
because of the termination of mentor/mentee relationship, we find that DQUERI’s efforts to
terminate MENTOR 2’s mentorship was reasonably likely to deter protected EEO activity by
Complainant or another employee.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision as to Claim A,
and REVERSE the Agency’s final decision as to Claim B.

ORDER (D0617)
The Agency is ordered to take the following remedial action:
1. Within ninety (90) days of the date this decision is issued, the Agency shall conduct
and complete a supplemental investigation on the issue of Complainant's entitlement to
compensatory damages, and will afford her an opportunity to establish a causal
relationship between the Agency's retaliation and her pecuniary or non-pecuniary losses,
if any. Complainant will cooperate in the Agency's efforts to compute the amount of
compensatory damages, and will provide all relevant information requested by the
Agency. The Agency will issue a final decision on the issue of compensatory damages.
29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission.
The Agency shall submit a copy of the final decision to the Compliance Officer at the
address set forth herein.
2. Within ninety (90) days from the date this decision is issued, the Agency shall provide
at least eight hours of in-person or interactive EEO training to DQUERI and MENTOR 2
with a special emphasis on the duty of managers to avoid retaliating against employees.
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3. Within sixty (60 days from the date this decision is issued, the Agency shall consider
taking appropriate disciplinary action against DQUERI. The Agency shall report its
decision to the Compliance Officer referenced herein. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.
If the identified management officials have left the Agency's employment, the Agency
shall furnish documentation of the departure date(s).
4. The Agency shall post the notice referenced in the paragraph below entitled, “Posting
Order.”
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." The report shall be
submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further,
the report must include evidence that the corrective action has been implemented.
POSTING ORDER (G0617)

The Agency is ordered to post at its Bedford and Boston facilities copies of the attached notice.
Copies of the notice, after being signed by the Agency's duly authorized representative, shall be
posted both in hard copy and electronic format by the Agency within 30 calendar days of the
date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous
places, including all places where notices to employees are customarily posted. The Agency
shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any
other material. The original signed notice is to be submitted to the Compliance Officer as
directed in the paragraph entitled "Implementation of the Commission's Decision," within 10
calendar days of the expiration of the posting period. The report must be in digital format, and
must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the
processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the
Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30)
calendar days of the date this decision was issued. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0617)
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 ordered corrective
action. The report shall be in the digital format required by the Commission, and submitted via
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the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency’s report
must contain supporting documentation, and the Agency must send a copy of all submissions to
the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration.
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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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

December 19, 2017
Date