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

Equal Employment Opportunity Commission

May 3, 2022

Appeal No. 2020005336 (E.E.O.C. May. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005336 Hearing Nos. 531-2016-00299X and 570-2017-00126X Agency Nos. 20DR-01AL-2015105345, 2004-OLC.C-2016102649, and 01AL-2017100406 DECISION On September 21, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.504(b), alleging the Agency was in noncompliance with its November 13, 2019, final order 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. BACKGROUND On October 7, 2015, April 13, 2015, and October 26, 2016, Complainant filed three separate formal complaints alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. In support of her claim, Complainant raised 41 incidents. Following the Agency’s investigations, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On October 23-27, 2017, the AJ held a hearing on the three formal complaints. On September 28, 2018, the AJ issued a decision ruling in favor of Complainant on six claims. 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 2020005336 In light of the findings of discrimination against the Agency, the AJ awarded Complainant pecuniary and non-pecuniary damages. The AJ also found that Complainant was entitled to seek restoration of leave she was forced to take due to emotional distress provided Complainant could show a causal nexus between the discrimination and the leave taken. The precise amount of leave, if any, to which Complainant was entitled was an issue to be decided at the damages phase of the case. However, the AJ did not issue a specific order regarding Complainant’s entitlement to leave restoration and ordered this matter to be determined by the Agency. On February 19, 2019, the AJ held an evidentiary hearing to determine Complainant’s compensatory damages. At the hearing, Complainant testified at length about the harm she suffered as a result of the Agency’s discriminatory actions. She also provided evidence in the form of her medical records and the testimony of a former coworker who corroborated Complainant’s statements about how she was affected by the discrimination. Complainant’s Final Appeal Brief with Attachments (FAB) at 67, 466-518, and 466-67. On September 6, 2019, the AJ issued a decision awarding Complainant compensatory and non- pecuniary damages. The AJ found Complainant’s testimony and supporting evidence credible. Decision on Compensatory Damages (DCP) at 3. In his decision, the AJ also noted that Complainant required “anti-depressant medication daily beginning on April 20, 2016, and ending in November 2018, a period of two years and seven months.” DCP at 6. Furthermore, the AJ found that Complainant’s emotional and psychological symptoms were directly attributable to the Agency’s discriminatory actions and that the symptoms continued to get worse in October of 2016. DCP at 7. The AJ determined that by November 29, 2016, the evidence showed that Complainant’s condition was worse than it had ever been and noted that Complainant’s primary care doctor noted during a visit that Complainant was experiencing “disturbances of emotion” with complaints of “chronic anxiety and sadness” and she began to experience hair loss due to stress. Id. On November 13, 2019, the Agency issued a final order finding that the AJ’s decision on liability and damages was supported by substantial evidence. Final Agency Order (FAO) at 2. In its final order, the Agency awarded Complainant restoration of “all leave annual, (sick, or leave without pay) taken as a result of the unlawful discrimination found in this case.” Complainant was ordered to cooperate with the Agency in identifying the leave taken because of the unlawful discrimination. FAO at 4. In March 2020, the Agency sent Complainant leave reports taken from the Agency’s leave tracking system for the period April 1, 2012 to January 1, 2019, to assist her with identifying when she used leave as a result of the Agency’s discriminatory or retaliatory conduct. FAB at 28 and 539-54. On April 29, 2020, Complainant sent the Agency a spreadsheet in which she identified each date she took leave for reasons related to the discrimination or retaliation; the type of leave she took namely, sick or annual); and the hours of leave taken. FAB at 216-51. Complainant also attached the reports from the Agency’s leave tracking system. 3 2020005336 In total, Complainant requested restoration of 425.95 hours of sick leave and 23.75 hours of annual leave, for a total of 449.70 hours of leave taken from April 24, 2012 to April 26, 2018: • 2012: 25.00 Hours of sick leave • 2013: 56.50 Hours of sick leave • 2014: 78.50 Hours of sick leave • 2015: 81.45 Hours of sick leave • 2016: 120.80 Hours of sick leave • 2017: 58.20 Hours (34.45 hours of sick leave and 23.75 hours of annual leave) • 2018: 25.25 Hours of sick leave. Id. After receiving Complainant’s request to restore 449.70 hours of leave, on May 7, 2020, the Agency responded that it would “forward the attachments to the Veterans Affairs Acquisitions Academy (VAAA) for follow-up.” FAB at 555-56. The Agency did not object to the number of hours requested, did not ask for additional information from Complainant and did not dispute that Complainant was entitled to leave restoration for leave taken in 2014, 2015, 2017 or 2018. Id. By letter dated August 18, 2020, Complainant, through counsel, filed a notice of non-compliance of the Agency’s final order. Specifically, Complainant asserted that the Agency has failed to restore her leave. On August 20, 2020, the Agency responded to Complainant’s notice, stating that it had fully restored Complainant’s leave effective August 1, 2020. The Agency attached a leave balance report which indicated that Complainant had been restored 128.25 hours of leave (sick and annual), which is 321.45 hours less than the 425.95 hours of sick leave and 23.75 hours of annual leave Complainant requested. The Agency did not issue a formal decision explaining how it calculated its leave figure or why it was not restoring the full amount of leave requested by Complainant. On August 31, 2020, Complainant sent the Agency’s EEO Director a second notice of noncompliance with the November 13, 2019, final order for the Agency’s failure to restore the correct amount of leave. Complainant included a sworn affidavit in which she asserted that the sick and annual leave identified by her on April 29, 2020, was used because she was experiencing symptoms of, or seeking treatment for, medical conditions (anxiety, depression, fatigue, hair loss, gastric pain, migraines) which were attributable to the Agency’s discriminatory and retaliatory conduct. The Agency responded on September 8, 2020, that it was only required to restore leave used by Complainant in 2012, 2013, and 2016, because those were the years in which the discriminatory acts occurred. This appeal followed. 4 2020005336 ANALYSIS AND FINDINGS The Commission's regulations provide that a final action that has not been the subject of an appeal or civil action shall be binding on the Agency. 29 C.F.R. § 1614.504(a). If Complainant believes that the Agency has failed to comply with the terms of a decision, she shall notify the EEO Director, in writing, of the alleged noncompliance within 30 days of when Complainant knew or should have known of the alleged noncompliance. The Agency shall resolve the matter and respond to the Complainant, in writing. 29 C.F.R. § 1614.504(b). If Complainant is not satisfied with the Agency's attempt to resolve the matter, the Complainant may appeal to the Commission for a determination as to whether the Agency has complied with its decision. Id. Complainant may file such an appeal 35 days after he or she has served the Agency with the allegations of noncompliance but must file an appeal within 30 days of his or her receipt of an Agency's determination. Id. If the Commission determines that the Agency is not in compliance with its decision, and the noncompliance is not attributable to acts or conduct of Complainant, it may order such compliance with the decision. 29 C.F.R. § 1614.504(c). Here, Complainant filed her appeal within 30 days after receiving the Agency's September 8, 2020, written response and thus this appeal is properly before us for determination. Specifically, Complainant alleges that the Agency has not provided her with “all leave annual, (sick, or leave without pay) taken as a result of the unlawful discrimination found in this case” as ordered by the Agency’s November 13, 2019, final order. Upon review of the record, we find that the Agency has not complied with its final order as it has improperly limited Complainant’s entitlement to leave restoration. The record reflects that from May 5, 2016, to January 23, 2019, Complainant received therapy to treat her worsening depression and anxiety caused by the Agency’s 2012, 2013, and 2016 discriminatory and retaliatory conduct. FAB at 70 and 743-55. The record reflects that over a period of two years and eight months, Complainant completed a total of 55 sessions of therapy. FAB at 557-62. The therapy sessions occurred during the workweek and Complainant usually had to use her leave to attend them. Compare list of therapy session dates with Complainant’s list of dates for which she seeks leave restoration. FAB at 557 and 248-51. The record shows that during the entire period beginning in April 2012 until October 2018, Complainant would frequently use leave to attend doctor’s appointments to treat the physical symptoms caused by her stress and anxiety, i.e. hair loss, gastric pain, fatigue, and migraines. FAB at 563-760 and 252-53. There were also many days that Complainant needed to use leave because the symptoms of depression, anxiety, fatigue, migraines or gastric pains, prevented her from going to work. Id. Because Complainant’s physical and emotional symptoms were not confined to a given year, but rather persisted during the entire period from April 2012 until early 2019, she used sick and annual leave consistently during this same period as a result of the Agency’s discriminatory and retaliatory actions. FAB at 248-53. 5 2020005336 According to Complainant, her worsening symptoms were documented during an annual physical on May 1, 2017, when her doctor noted that risk assessments performed included depression symptoms.” FAB at 71. During the same appointment, Complainant’s doctor noted in her records that severe stress at work for years was now causing severe anxiety requiring medication, psychotherapy and exercise. Id. On January 5, 2018, Complainant was diagnosed with a new condition - fatigue. Id. Complainant also continued taking prescription medications for her migraines and depression until November 2018 and December 2018, respectively. Id. Notably, the AJ, in his decision, credited Complainant’s testimony that even when Complainant’s supervisor stopped supervising her in 2017, she still feared running into him while at work because he sometimes stalked her and she never felt safe from him until she went on detail in June 2018. According to the AJ, while Complainant had non-compensable stress and pre-existing migraines in 2014 and 2015, the Agency’s discrimination caused these symptoms to recur and Supervisor’s discriminatory acts made them significantly worse. The AJ found that Complainant suffered extensive stress and physical symptoms as a direct result of the discrimination found in this case. DCP at 8. Therefore, we find that Complainant has shown a causal nexus between the Agency’s discriminatory and retaliatory actions and her need to take sick and annual leave from April 24, 2012 to April 26, 2018, for a total of 425.95 hours of sick leave and 23.75 hours of annual leave. While the record is replete with documentary evidence in support of Complainant’s position, the Agency presented no argument or evidence to show that the leave used during the period at issue between 2016 and 2018 was not connected to the discriminatory and retaliatory incidents for which the AJ found in favor of Complainant. Moreover, the alleged harasser was still Complainant’s supervisor in 2017. As the Agency has only restored 128.25 of leave to Complainant, we find that the Agency has not complied with the terms of its November 13, 2019, final order as it has not restored Complainant’s leave taken as a result of the Agency’s discriminatory actions. Accordingly, we MODIFY the Agency’s determination that it has complied with its November 13, 2019, final order and REMAND the matter to the Agency for further processing in accordance with the order below. ORDER To the extent the Agency has not done so already, within thirty (30) calendar days of the date that this decision is issued, the Agency shall restore 425.95 hours of sick leave and 23.75 hours of annual leave to Complainant. 6 2020005336 ATTORNEY’S FEES (H0610) 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 this decision becoming final. 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 (K0610) 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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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. 7 2020005336 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). 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. 8 2020005336 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 May 3, 2022 Date