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

Equal Employment Opportunity Commission

Jan 13, 2022

Appeal No. 2020003822 (E.E.O.C. Jan. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachel F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021002702 Appeal No. 2020003822 Hearing No. 520-2019-00467X Agency No. 200H-0523-2018105396 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Rachel F. v Dep’t of Veterans Affairs, EEOC Appeal No. 2020003822 (March 2, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant worked as a Clinical Pharmacy Specialist in Oncology at the Agency’s Boston Veterans Affairs Hospital in Jamaica Plain, Massachusetts. 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. 2021002702 2 On September 5, 2018,2 Complainant filed a formal EEO complaint claiming that she was subjected to a hostile work environment (both sexual and non-sexual) based on sex (female and parental status) and in reprisal for prior EEO activity when: 1. on September 24, 2016, Complainant was told by S1, the Chief of pharmacy, that he notified A1 to “stop trying to find a way to get [her] back into the office full-time.” A1 continues to make requests. Complainant feels he is making these requests to discriminate against her for her parental status. 2. on July 14, 2016, A1 sent a direct email to Complainant pertaining to her work. Complainant stated that this was a direct violation of the settlement agreement of her prior EEO complaint. 3. on September 14, 2016, A1 sent a direct email to Complainant pertaining to her work. Complainant maintained that his was a direct violation of the settlement agreement of her previous EEO complaint. 4. on February 13, 2018, C1, a co-worker, indicated that A1 brought up Complainant’s work ethic and schedule, in a meeting. 5. on April 25, 2018, A1 discontinued Complainant’s initiative to reconcile a big mistake regarding a biosimilar drug dispensed by the Agency’s Boston Pharmacy. 6. on May 10, 2018, A1 reversed Complainant’s recommendation. A1 called A2, a Pharmacy Executive, stating that Complainant “stepped on his toes.” Complainant was asked to be involved in the project. Pharmacists in involved, B1, B2, and B3. 7. on June 23, 2018, an instant message received from S2, the new incoming Chief of Pharmacy, stated that Complainant’s name came up in conversation with A3, the Deputy Medical Director, alerting her of a concern A1 brought to her attention regarding Complainant’s work schedule and her involvement in research. After an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, May 18, 2020, the AJ issued a decision by summary judgment finding that Complainant had not been subjected to discrimination as alleged. The Agency issued a final order implementing the AJ’s finding of no discrimination. Complainant appealed. 2 Before the instant complaint, the record supports that Complainant initiated EEO counseling in February 2016 alleging discrimination against her then supervisor, A1, however, this complaint was resolved through a June 2016 settlement agreement which resulted in Complainant being supervised by S1 instead of A1. 2021002702 3 In the prior decision Appeal No. 2020003822, the Commission found that the AJ properly determined that Complainant had not been subjected to discriminatory harassment as alleged.3 Regarding claim 1, the prior decision explained that S1 notifying A1 to cease trying to terminate Complainant’s telework schedule was not an adverse employment action. Rather S1’s actions demonstrated that management supported Complainant’s work schedule. Regarding claims 2 and 3, the prior decision determined that these claims consisted of an allegation of a breach of a settlement agreement between Complainant and the Agency and were already adjudicated by the Commission. See Justine R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170775 (May 10, 2017). However, the prior decision clarified that the emails in question A1 sent to Complainant were routine work-related emails, and after Complainant informed S1 about the emails, all communication from A1 was routed though S1. Consequently, determined that these emails did not constitute hostile or adverse treatment. Regarding claim 4, the prior decision explained that A1’s comments during a staff meeting were not inflammatory. Rather, A1’s comments involved staffing and budgeting concerns. Consequently, A1’s comments, while referencing but not naming Complainant, were not intended to discredit Complainant. Similarly, our prior decision found that claims 5 and 6 did not constitute harassment based on Complainant’s sex or prior protected EEO activity. The prior decision explained that these claims involved A1’s disagreement with Complainant’s recommendation to a colleague, B1, regarding her opinion on whether patients should continue on biosimilars. Finally, regarding claim 7, the prior decision determined that Complainant had failed to prove that the message regarding her work schedule was attributed to A1’s actions. Specifically, the prior decision noted that Complainant raised the issue of her work schedule because an MOU governing her work schedule was due for renewal. In the instant request for reconsideration, Complainant submits, through counsel, a statement expressing disagreement with the appellate decision and reiterating arguments previously made on appeal. However, we emphasize that a request for reconsideration is not a second appeal to the Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. 3 To the extent that Complainant alleges that she was forced to resign because of the Agency's alleged discrimination, the Commission notes that the central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). As stated above, the Commission found that Complainant had not demonstrated that the Agency's actions were motivated by discriminatory or retaliatory animus. Thus, Complainant cannot establish the necessary elements to prove constructive discharge. 2021002702 4 After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020003822 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 January 13, 2022 Date