Jeremy S.v.Dep't of Veterans Affairs

Equal Employment Opportunity Commission

Feb 9, 2017

EEOC Appeal No. 0120142917 (E.E.O.C. Feb. 9, 2017)

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

Jeremy S.,1
Complainant,

v.

Robert D. Snyder,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120142917

Agency No. 200H-0541-2013100315

DECISION

Pursuant to 29 C.F.R. § 1614.403(a), the Commission accepts Complainant’s Estate’s (the
Estate) appeal from the June 16, 2014, final Agency decision (FAD) concerning Complainant’s
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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission’s review is de novo. For the following
reasons, the Commission REVERSES the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Team
Leader/Assistant Nurse Manager at the Agency’s VA Medical Center in Cleveland, Ohio. On
January 29, 2013, Complainant filed a formal complaint alleging that the Agency discriminated
against him and subjected him to a hostile work environment on the bases of race (African-
American), sex (male), and disability when:

1. On or about January 20, 2012, Complainant’s supervisor (S1) deliberately
misplaced his application for Family Medical Leave Act (FMLA);

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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2. On October 24, 2012, S1 questioned Complainant’s co-workers about his patient
appointments scheduled for October 23, 2012;

3. On October 25, 2012, S1 denied Complainant’s request for 30 minutes of
compensatory time for working past his tour of duty to care for a patient on October
23, 2012;

4. Beginning in March 2011, S1 has been “singling Complainant out” by closely
monitoring his activities and overly scrutinizing his work;

5. From May 8, 2012 to February 13, 2013, S1 gave Complainant several Reports of
Contact; and

6. On April 8, 2013, Complainant was escorted by the VA Police and referred for
psychiatric evaluation.2

On July 10, 2013, the Agency notified Complainant that the 180-day period to complete its
investigation would expire on July 28, 2013. The Agency informed Complainant of his right
to request to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ) after 180 days had passed from the filing of his formal complaint,
or that he could consent to an extension to complete the investigation. The notice further
informed Complainant that his complaint was “pending investigation,” but that the Agency
expected to complete the investigation by October 26, 2013. The record indicates that
Complainant signed the form on July 17, 2013, agreeing to extend the timeframe for
completion of the investigation.3

On August 19, 2013, the Agency assigned the complaint to an EEO Investigator. Prior to the
commencement of the investigation, Complainant passed away. On December 17, 2013,
Complainant’s mother signed a second form agreeing to extend the investigation another 30
days and stating her intentions to participate in the investigation. That same day, the EEO
Investigator initiated the investigation – 322 days after Complainant filed his formal complaint.

On January 7, 2014, the EEO Investigator completed the investigation. The Agency provided
Complainant’s mother with a copy of the report of investigation (ROI) and notice of her right
to request a hearing before a Commission AJ on behalf of Complainant. On February 3, 2014,

2 The Agency dismissed claim (1) as a discrete act for untimely EEO counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted, however, that it would be
considered as part of Complainant’s overall hostile work environment claim. Additionally, the
Agency accepted claim (6) as additional evidence supporting Complainant’s hostile work
environment claim, following a request from Complainant’s mother.

3 The signed portion of the notice did not indicate whether the investigation would be extended
30, 60, or 90 days. Report of Investigation (ROI), at 613.
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Complainant’s mother requested a FAD. In accordance with her request, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was
no evidence that the alleged incidents were based on discriminatory animus. Additionally, the
Agency concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, the Estate, through its attorney, argues that the Agency should be sanctioned for its
failure to timely initiate or complete its investigation into Complainant’s EEO complaint within
the regulatory timeframe. The Estate contends that Complainant’s case is an illustration of the
necessity for agencies to adhere to the regulatory time periods prescribed for conducting and
completing investigations. The Estate notes that Complainant was alive at the end of the 180-
day period following the filing of his formal complaint, but the Agency had not even assigned
the case to an investigator at that time. As a result of the Agency’s “egregious disregard” for
the Commission’s regulations, the Estate argues that Complainant lost any real opportunity to
participate in the investigation of his claims, which would have included an opportunity to
provide affidavits and identify witnesses and documents in support of his claims. The Estate
contends that this case is a graphic illustration of the prejudice caused when the Agency fails to
act in a timely manner on an EEO complaint. The Estate states that Complainant’s mother was
left with a record devoid of any testimony from her son, which placed her in a difficult
situation where she could not reasonably be expected to prevail on the claims, or at least would
have had a difficult time doing so. Accordingly, the Estate requests that the Commission
reverse the FAD and impose the appropriate sanction of default judgment against the Agency.

In response, the Agency argues that a default judgment sanction is unwarranted and
inappropriate as there is no evidence that it engaged in misconduct or acted in bad faith.
Further, the Agency contends that the delay in commencing the investigation did not result in
any harm to Complainant or the administrative process. The Agency claims that Complainant
suffered no prejudice by its delay in completing the investigation and Complainant’s next-of-
kin was contacted to inform her of the process. Additionally, the Agency argues that
Complainant’s Estate has presented no factual evidence supporting a claim of discrimination or
hostile work environment. Accordingly, the Agency requests that the Commission affirm its
FAD.

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ANALYSIS AND FINDINGS

Violation of EEOC Part 1614 Regulation

EEOC Regulation 29 C.F.R. § 1614.108(e) requires agencies to complete an investigation of a
formal EEO complaint within 180 days of the filing of the complaint unless the parties agree in
writing to extend the period for not more than an additional 90 days. In the instant case, the
record indicates that Complainant filed the formal EEO complaint on January 29, 2013. On
July 10, 2013, the Agency sent Complainant a notice informing him of the expiration of the
180-day timeframe for completion of the investigation and of his right to request a hearing.
Additionally, the Agency stated in the notice that his complaint was “pending investigation,”
but it expected to receive the completed investigation by October 26, 2013. Complainant was
given the option to extend the investigative period for 90 days. Complainant’s signature
appears on the form, voluntarily requesting an extension; however, the Estate questions its
authenticity. Nonetheless, the investigation was not completed until January 7, 2014, well
beyond the extension period and the October 26, 2013, expected completion date. The Agency
has provided no explanation for its extraordinary delay in initiating and completing the
investigation. Thus, the Commission finds that the Agency did not comply with its obligation
to timely initiate and complete an investigation in accordance with the timeframes set forth at
29 C.F.R. § 1614.108(e).

Complainant’s Estate’s Request for Sanctions

On appeal, the Estate urges the Commission to reverse the FAD and impose sanctions against
the Agency for its flagrant failure to conduct a timely investigation. The Commission has
exercised its inherent authority to enforce its 29 C.F.R. Part 1614 regulations by ordering
sanctions in response to similar types of violations. See Complainant v. Dep't of the Air
Force, EEOC Appeal No. 0120132260 (July 15, 2015) (sanction where agency took 308 days
to complete investigation, instead of 180 days mandated by EEO regulations); Royal v. Dep't
of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) (agency’s delay in
completing investigation within 180 days was “no small non-compliance matter” and warranted
a sanction). Based on the conduct of the Agency in this case and its failure to show good cause
for why sanctions should not be imposed, the Commission finds that the imposition of
sanctions is warranted.

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of
the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal
Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective
and provide equitable remedies to the opposing party. Given these dual purposes, sanctions
must be tailored to each situation by applying the least severe sanction necessary to respond to
a party's failure to show good cause for its actions and to equitably remedy the opposing party.
Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052. Several factors are
considered in tailoring a sanction and determining if a particular sanction is warranted: (1) the
extent and nature of the non-compliance, and the justification presented by the non-complying
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party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the
consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO
process. Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007).

The Commission notes that our regulations require agency action in a timely manner at many
points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June
6, 2014). Compliance with these timeframes is not optional. As the Commission stated in
Royal, “the Commission has the inherent power to protect its administrative process from
abuse by either party and must insure that agencies, as well as complainants, abide by its
regulations.” Because of the length of time it can take to process a federal sector EEO
complaint, any delays in complying with the timeframes in the regulations can impact the
outcome of the complainant's claims. Id. In this case, the Agency's extraordinary tardiness
undermined the integrity and effectiveness of the EEO process and, sadly, deprived
Complainant of the opportunity to participate in the investigation of his claims. Therefore,
based on the circumstances present, the Commission finds that the Agency’s delay warrants the
severe sanction of granting default judgment in favor of Complainant. Moreover, default
judgment should impress upon the Agency its need to henceforth initiate and complete
investigations in a timely manner.

Indeed, we find that the Agency is in need of a reminder of its obligation to comply with the
requirement to commence and complete the EEO investigation within 180 days of the date of
the filing of the formal complaint. Although the Agency had the temerity to argue in its
opposition brief that the sanction of a default judgment was unwarranted and inappropriate
because it did not engage in misconduct and did not act in bad faith, and that the delay in
commencing the investigation did not result in any harm to Complainant or the administrative
process, we disagree. Our prior cases on default judgment find that the standard is not one of
bad faith or misconduct. Additionally, we note that the Agency has been subject to default
judgment no less than three prior times for the same infraction of failing to initiate the
investigation within 180 days. See Royal v. Dep't of Veterans Affairs, EEOC Request No.
0520080052 (Sept. 25, 2009); Reading v. Dep't of Veterans Affairs, EEOC Appeal No.
07A40125 (Oct. 12, 2006); Lomax v. Dep't of Veterans Affairs, EEOC Appeal No.
0720070039 (Oct. 2, 2007), req. for recon. den., EEOC Request No. 0520080115 (Dec. 26,
2007).

Remedy Following Default Judgment

After deciding to issue a default judgment for a complainant, the Commission must determine
if there is evidence that establishes the complainant's right to relief. One way to show a right
to relief is to establish the elements of a prima facie case. See Royal, EEOC Request No.
0520080052; see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21,
2005).

Complainant's complaint can be analyzed under both a disparate treatment and hostile work
environment analysis. In order to prevail on a disparate treatment claim, Complainant must
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satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima
facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the
facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13.

The record reveals that the Agency determined that Complainant established a prima facie case
of discrimination based on disability as to claim (3). The Agency determined that Complainant
was a qualified individual with a disability, S1 was aware of his disability, and Complainant
suffered an adverse action on October 25, 2012, when S1 denied his request for compensatory
time. Accordingly, the Commission agrees with the Agency that Complainant established a
prima facie case of disability discrimination as to claim (3). In addition, the Commission finds
that evidence from the EEO Counselor’s Report and Complainant’s formal complaint supports
a finding that Complainant established a prima facie case of race and sex discrimination as to
claim (3). ROI, at 66.

Finally, to establish a claim of hostile work environment Complainant must show that: (1) he
belongs to a statutorily protected class; (2) he 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 his statutorily protected classes; (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). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Here, the Commission finds that a reasonable fact-finder would conclude that the alleged
incidents were insufficiently severe or pervasive to establish a discriminatory hostile work
environment. The record reflects that the alleged incidents were more likely the result of
routine supervision, managerial discipline, personality conflicts, and general workplace
disputes and tribulations. Consequently, the Commission finds that Complainant’s hostile
work environment claim must fail. As such the Commission finds that there is sufficient
evidence to support a conclusion, by default judgment, that Complainant is entitled to relief
only for claim (3).

CONCLUSION

Accordingly, the Commission REVERSES the Agency’s final decision and REMANDS the
matter for further action in accordance with this decision and the ORDER below.

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ORDER

The Agency is hereby ORDERED to take the following actions:

1. Within one hundred and twenty (120) days of the date of this decision, the Agency
shall conduct a supplemental investigation on the issue of Complainant’s entitlement
to compensatory damages with respect to this complaint. Complainant’s Estate will
cooperate in the Agency's efforts to compute the amount of compensatory damages,
if any, and will provide all relevant information requested by the Agency. The
Agency shall issue a final decision on the issue of compensatory damages with
appeal rights to the Commission. A copy of the final decision must be submitted to
the Compliance Officer as referenced below.

2. The Agency shall provide a minimum of eight (8) hours of in-person training to its
EEO managers and staff regarding their responsibilities concerning case processing
and insuring that investigations are completed timely.

3. Consider taking appropriate disciplinary action against the responsible EEO officials
still employed by the Agency. The Commission does not consider training to be
disciplinary action. The Agency shall report its decision to the Compliance Officer.
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 any of the responsible management
officials have left the Agency's employ, the Agency shall furnish documentation of
their departure date(s).

4. Post a notice in accordance with the paragraph below.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission's Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G1016)

The Agency is ordered to post at its VA Medical Center in Cleveland, Ohio 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 at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within 10 calendar days of the expiration of
the posting period.
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ATTORNEY'S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R.
§ 1614.501(e)(1)(iii)), he 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 (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 (M0416)

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.

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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. 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. Such requests do not alter the
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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 9, 2017
Date