Alisia M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Feb 26, 2019

0120182778 (E.E.O.C. Feb. 26, 2019)

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

Alisia M.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120182778

Hearing No. 430-2017-00370X

Agency No. 2004-0558-2016104764

DECISION

On September 12, 2018, Complainant filed a timely appeal with the Equal Employment
Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July
3, 2018, dismissing her complaint of unlawful employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Supervisory Medical Support Assistant (Assistant Chief, Ward Administration), GS-0679-07 at
the Durham Veterans Affairs Medical Center (VAMC) in Durham, North Carolina.

On September 30, 2016, Complainant filed an equal employment opportunity (EEO) complaint,
as amended. The Agency accepted the complaint for investigation in part and dismissed it in part.
The Agency characterized the accepted claims as follows: Complainant was subjected to a hostile
work environment based on her disability and sex (female) as evidenced by the following events:

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.
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1. In May 2015, Complainant’s request for reassignment was denied by the Chief, GS-8,
Ward Administration, her first line supervisor (S1).

2. On August 25, 2015, the Assistant Chief, GS-13, for the Health Administrative Services -
Complainant’s second line supervisor (S2) until she became her third line supervisor in
July 2016, placed her on absent without official leave (AWOL).

3. On August 31, 2015, S2 called Complainant into her office, spoke to her in an
unprofessional manner and accused her of not being at work on August 28, 2015, and of
gossiping, and threatened her with expulsion.

4. From September 2015 to December 2015, Complainant was demoted to the position of
Medical Support Assistant.

5. From September 2015 to September 2016, Complainant was ordered by S1 and S2 to send
a nightly report to show she is at work until the end of her shift.

6. From November 2015 to February 2016, Complainant was not reasonably accommodated
when management failed to submit appropriate paperwork in a timely manner.

7. From February 2016 through May 2016, S1 displayed inappropriate behavior, when he
leaned over Complainant invading her work area, and continued to do so after she
expressed her dissatisfaction.

8. In March 2016, S1 placed his hand on Complainant’s back while riding the elevator and
continued to do so after she told him to stop.

9. From April 2015 through September 2016, S1 invited Complainant to attend burlesque
shows, dinner, and festivals, while telling her he has friends who are strippers and making
inappropriate sexual jokes.

10. In May 2016, Complainant was informed by the Chief, Ward Clerks, that she was to report
to him daily and send him nightly reports by 8:25 PM.

11. On May 3, 2016, Complainant’s workstation was given to another employee and she was
told to find another workstation.

12. In May 2016 through present, Complainant was demoted to the position of Medical
Support Assistant.

13. On July 1, 2016, S2 accused Complainant of being out of the building and off Government
property.

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14. On July 1, 2016, S2 forced Complainant to divulge one of her physical disabilities and
accused her of ignoring her pages during a meeting.

15. On August 4 and 5, 2016, S1 questioned Complainant about personal information on
employees at the Agency.

16. On August 17, 2016, S2 denied Complainant’s request to attend managerial training.

17. On August 18, 2016, Complainant was called to the Administrative Officer on Duty’s
office to complete a task she was not properly trained in.

18. On August 22, 2015, S2 asked Complainant to change her duty hours from the second to
the first shift.

19. From September through January 2016, S1 constantly contacted Complainant while she
was on sick leave.

20. On September 7, 2016, while hugging another co-worker, S1 pulled out his pocket knife
and said “[Complainant] belongs to me, don’t be hugging her.”

21. On September 22, 2016, S2 called Complainant into her office to discuss her EEO
complaint.

22. Effective October 16, 2016, Complainant was informed she was being transferred to
another service.

23. On an unidentified date GO informed Complainant that S2 accused her of viewing
inappropriate material on her computer on several occasions.

24. On March 22, 2017, Complainant received a reprimand for Failure to Follow Instructions.

25. On April 3, 2017, the Chief, Ward Clerks informed Complainant that she was no longer
allowed in the building after her tour ended unless she obtained prior permission from
management to do so.

26. On unspecified date, Complainant learned she was reporting to an identified a lower graded
employee.

27. On April 11, 2017, Complainant’s request for reasonable accommodation was denied.

The Agency accepted events 12, 15, 16, 24 and 27 as independently actionable claims.

The Agency investigated the claims it accepted. In May 2017, Complainant requested a hearing
before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ).
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On May 22, 2017, the AJ issued Order 1 acknowledging receipt of the hearing request and
scheduling the Initial Conference for November 2, 2017, at 3:15 PM. The AJ sent Complainant’s
copy of Order 1 to Address 2, the mailing address on her hearing request. Therein, the AJ ordered
Complainant to notify EEOC’s Charlotte District Office at a specified address as well as Agency
Counsel of the telephone number she can be reached for the Initial Conference and advised the
parties of their ongoing obligation to keep the EEOC’s Charlotte District Office informed of their
current mailing address. She notified the parties that failure to follow this order and other orders
by her may result in sanctions, including the denial of the right to a hearing.

Thereafter, Complainant without notice failed appear at the Initial Conference (via telephone). On
November 2, 2017, the AJ issued a Notice of Intent to Issue Sanction and Order to Show Cause to
Complainant at Address 2. Therein, the AJ recounted the above, and that the copy of Order 1 sent
to Complainant was not returned as undeliverable. The AJ recounted that after Order 1 the Agency
arranged a conference line for the Initial Conference and sent a notice thereof to Complainant, but
the Agency advised it was retuned as undeliverable from her last known address (with no
forwarding address). Documentation shows that in June 2017, a paralegal for the Agency’s counsel
(representative) mailed notice of the call-in information, with a reminder of the date and time, to
Complainant at Address 2, and after it was returned attached it to an email and sent it to the AJ,
with a copy to Complainant’s work email address. In the email the paralegal explained that he
previously mailed the notice to Complainant at Address 2, but it was returned as incorrect and
unable to forward. In the November 2, 2017 order, the AJ directed Complainant to show cause in
writing by November 20, 2017, on her failure to attend the Initial Conference.

Complainant did not respond to the AJ’s November 2, 2017 order. On December 5, 2017, the AJ
issued an order dismissing Complainant’s hearing request for failure to prosecute. Therein, the AJ
referenced the above, observed that mail sent to Complainant by the Agency (above paralegal) was
returned as undeliverable, and even after the Agency (above paralegal) resent the call-in
information to Complainant on June 22, 2017, via email, she did not update her mailing address
and failed to join the initial conference. The AJ emailed the December 5, 2017 order to
Complainant’s work email address.

Thereafter, the Agency dismissed Complainant’s complaint under 29 C.F.R. § 1614.107(a)(6),
which allows an agency to dismiss a complaint when the complainant cannot be located, provided
that reasonable efforts were made to locate the complainant and she has not responded within 15
days to a notice of proposed dismissal sent to her last known address. According to the FAD, by
certified mail on March 14, 2018, the Agency’s Office of Equal Employment Discrimination
Complaint Adjudication (OEDCA) (an EEO complaint processing function) sent a request to
Complainant to update her contact information with OEDCA and confirm her desire to continue
her complaint to Address 4 (a P.O. Box), but the letter was returned unclaimed and unable to be
forwarded. The record does not contain a copy of the March 14, 2018, request. Noting the history
of the AJ and Agency counsel not being able to contact Complainant, which was followed up by
OEDCA’s March 2018 unsuccessful effort, the Agency dismissed Complainant’s complaint. The
instant appeal followed.
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ANALYSIS AND FINDINGS

In April 2018, Complainant wrote the AJ she did not hear from anyone since June 2017, but kept
in touch with her Agency EEO case manager and the contract EEO investigator. The Agency’s
Office of Resolution Management (ORM) (an EEO complaint processing function) identified the
EEO case manager to Complainant for use as her point of contact prior to and during the EEO
investigation. Complainant wrote the AJ that she never received the report of investigation (ROI)
and that she asked her EEO case manager about the hearing date, who responded she did not know
anything about hearings because that was not her department. Complainant wrote that on March
5, 2018, she contacted Agency counsel to ask about status, and he advised she missed her “hearing
date.” She asked the AJ to give her a second chance for a hearing.2

On appeal, Complainant provides documentation showing that by email on March 21, 2017, to the
contract EEO investigator, she updated her address to Address 2. The EEO investigator confirmed
receipt. Previously, when Complainant filed her EEO complaint, she used Address 1. By email on
October 24, 2017, Complainant notified the contract EEO investigator and her EEO case manager
that her address changed to Address 3. Complainant contends that in May 2018, she contacted an
EEO counselor who advised the ROI was mailed to Address 1, and that despite her repeated efforts,
she still does not have the ROI. In May 2018, Complainant wrote a letter expressing dissatisfaction
with the EEO process. ORM responded in August 2018, that the ROI was “provided” to her on
June 6, 2017. There is no documentation in the record of when the ROI was sent to Complainant,
to what address, or that she received it.

We find that the AJ did not abuse her discretion when she dismissed Complainant’s request for a
hearing. Within weeks of Complainant making her hearing request in May 2017, the AJ sent
Complainant an order acknowledging the request, scheduling the Initial Conference, and advising
her of the obligation to keep the EEOC’s Charlotte District Office informed of her current mailing
address, under penalty of sanction. Complainant does not contend she didn’t receive this order,
and the record suggests she did. After Complainant missed the Initial Conference without notice,
on November 2, 2017, the AJ issued her a Notice of Intent to Issue Sanction and Order to Show
Cause, with a deadline of November 20, 2018, to respond. The AJ mailed the Notice to
Complainant at Address 2, her address of record with the EEOC’s Charlotte District Office because
she did not update her address there, as ordered. After Complainant did not respond, the AJ
dismissed her hearing request. Given the above facts, the AJ acted within her discretion in
dismissing Complainant’s hearing request as a sanction.3

2 Complainant does not indicate that she copied this correspondence to Agency counsel as required,
and there is no indication that the AJ responded.
3 We understand that Complainant believes she acted with due diligence by updating the EEO
contract investigator and her ORM EEO case manager on her current address. But the AJ ordered
Complainant to keep the EEOC’s Charlotte District Office up to date on her address, and she did
not do so. The Agency’s EEO processing functions (ORM, OECDA) are handled by different
offices and staff than the staff who represent the Agency in EEO administrative hearings (Office
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We find, however, that the Agency’s dismissal pursuant to 29 C.F.R. § 1614.107(a)(6) is not
supported by the record. By email on October 24, 2017, Complainant notified her ORM EEO case
manager that her address changed to Address 3, her most current address, who confirmed receipt
the next day and wrote that her file would be updated. The Agency’s EEO complaint processing
function was already notified of Complainant’s most current address when OECDA sent the March
2018 letter to her asking that she update her contact information and confirm her desire to continue
with her complaint. In dismissing the complaint, the Agency reasoned that the March 2018 letter
was returned as unclaimed and unable to be forwarded. But as Complainant argues on appeal, in
its FAD the Agency indicated the March 2018 letter was mailed to Address 4 (a P.O. Box) (an
address nowhere in the record) and she argues she never had a P.O. Box. Further, in its FAD the
Agency did not explicitly state the March 2018 letter contained a proposed notice of dismissal,
which is required by 29 C.F.R. § 1614.107(a)(6). Perhaps most significantly, the record does not
include a copy of the March 2018 letter, the evidence the Agency relies on to support its dismissal.

Accordingly, the FAD is REVERSED. The Agency shall comply with the order below.

ORDER
Within 15 calendar days of the date of this decision, the Agency shall provide Complainant an
electronic copy of the ROI, without hearing rights, with a letter advising her that she has an
opportunity to respond to or comment on the ROI to the Agency, and give her contact information
for doing so. The Agency may accomplish this by providing this correspondence to Complainant
at work, or sending it to Address 3, unless she has provided ORM with a subsequent updated
address. If the Agency chooses to send this correspondence to Complainant’s home/private
address, at least one copy thereof must be sent by first class mail without a signature requirement
(the Agency may use a certificate of mailing, like the one enclosed with this decision, if it so
chooses). If Complainant requests, the Agency must also provide a paper copy of the ROI to her,
using the above method. Sixty days after Complainant’s opportunity to comment has elapsed (i.e.,
105 calendar days after the date of this decision), the Agency shall issue a FAD appealable to this
office.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer evidence of compliance with this order.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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

of General Counsel). We note Complainant wrote that the EEO case manager advised her that she
did not know anything about hearings, albeit she did not state when.
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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). 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.
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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. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. 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 filed your appeal with the
Commission. 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. 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.

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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 26, 2019
Date