0120082585
11-05-2008
Nancy B. Marshall, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Nancy B. Marshall,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082585
Hearing No. 420-2007-00139-X
Agency No. 200I-0521-2006102200
DECISION
On May 16, 2008, complainant filed an appeal from the agency's April 17,
2008 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. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a part-time Speech Pathologist at the agency's Community Based
Outpatient Clinic in Jasper, Alabama.
On July 21, 2006, complainant filed an EEO complaint. Therein, complainant
alleged that she was subjected to unlawful discrimination in reprisal
for prior protected EEO activity.
By letter dated August 18, 2006, the agency accepted complainant's
complaint for investigation and determined that it was comprised of the
following claims:
(A) Whether on the basis of reprisal for prior EEO activity the
complainant was subjected to disparate treatment in matters concerning
time and attendance when on May 11, 2007, she was required to use her
annual leave to attend work related activities at the VA Medical Center
in Birmingham, Alabama.
(B) Whether on the basis of reprisal for prior EEO activity the
complainant was subjected to harassment when:
(1) In May 2006, the complainant became aware that her performance
measures were changed.
(2) [Complainant's second-level supervisor, (S2)] failed to respond to the
complainant's request of May 11, 2006, to meet with him to discuss the
means for developing a caseload for the VA Outpatient Clinic in Jasper,
Alabama.
(3) On April 29, 2006, complainant was subjected to public defamation
of character when the national coordinator said to the complainant that
her supervisor had some trust issues with the complainant after the
complainant's supervisor (S1) called training personnel to ensure that
the complainant was in attendance.
(4) On April 29, 2006, March 1, 2006, and February 26, 2006, S1 failed
to review caseload documentation, failed to provide copies of the "white
paper" from which the complainant's performance measures were developed
and refused to change her performance measures.
(5) On April 29, 2006, the complainant was denied legal representation.
(6) On April 26, 2006, the complainant was falsely accused of a fraudulent
act and threatened with a police investigation.
(7) On April 26, 2006, the complainant was initially told that she
could not go to training, could not use a government vehicle, and that
authorized absence (AA) would not be approved for her to attend training
and later told that she could use a government vehicle to attend training
and that AA would be granted.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. Complainant filed a Motion to Amend with the AJ
dated July 26, 2007. Therein, complainant requested that the instant
complaint be amended to include the following incidents:
(B)(8) In April 2006, S1 required the complainant to obtain permission
to serve on professional committees, even though the complainant was
seeking to do so on her own personal time and did not require any leave
from the agency to do so.
(9) In February 2007, the complainant requested and ordered equipment
which was approved by management and necessary for the complainant
to perform her speech pathology duties at the VA outpatient clinic in
Jasper, Alabama. However, when the equipment arrived in approximately
May 2007, it was diverted to the VA's Medical Center in Birmingham,
Alabama, at the direction of S1.
(10) In April 2007, S1 failed to provide the complainant certain
necessary information and criteria that was provided to other
speech pathologists in order for the complainant's position to be
reclassified from a GS-12 to a GS-13. S1 also held the complainant's
reclassification package and recommended that the complainant's position
not be reclassified while recommending that other similarly situated
speech pathologists be reclassified.
(11) S1 in approximately June 2007, removed the complainant from the
traumatic brain injury team and replaced the complainant with a less
qualified speech pathologist.
(12) S1 reprimanded the complainant in July 2007. In order to attempt
to rectify the severe lack of a patient case load for the complainant
at the agency's Jasper outpatient clinic, S1 directed the complainant
to begin providing treatment to patients assessed by other speech
pathologists, as well as to treat speech pathology patients over the
telephone. Complainant asserts that this is a breach of the standard of
care, as well as a breach of joint accreditation rules and regulations,
and if practiced by complainant, would jeopardize her medical license.
When complainant brought this to the attention of S1, she issued a
reprimand to the complainant.
By Order Concerning Motion to Amend dated August 31, 2007, the AJ granted
the complainant's motion to amend as long as the incidents raised in the
amendment have not been part of a prior EEO complaint. On March 12,
2008, complainant's attorney requested a final agency decision in the
instant matter. On March 17, 2008, the AJ remanded the matter to the
agency for a final decision. Consequently, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b).
The decision concluded that complainant failed to prove that she
was subjected to discrimination as alleged. The agency found that
complainant established a prima facie case of reprisal. The agency
further found, however, that it articulated legitimate, nondiscriminatory
reasons for its actions. In addition, the agency found that complainant
failed to establish that the agency's articulated reasons for its
actions were pretext for discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant submits a document entitled "Complainant's Motion
to Amend Final Agency Decision." Therein, complainant asserts that the
agency failed to address in its final decision the alleged incidents that
the AJ accepted for amendment. Complainant requests that the Commission
order the agency to amend its final decision to include these alleged
incidents.
ANALYSIS AND FINDINGS
Upon review of the record, the Commission finds that the record is
insufficient to allow a determination on the merits of complainant's
complaint. Our regulations and EEOC Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110) (November 9, 1999), require agencies to
develop a complete and factual record. See 29 C.F.R. � 1614.108(b);
EEO-MD-110, Chapter 6. In the instant matter, the agency addressed
incidents (A) and (B)(1)-(B)(7) in its final decision. However, the
agency failed to address the alleged incidents that the AJ accepted
for amendment, (B)(8)-(B)(12). In addition, we find that the record
is insufficiently developed to allow a determination on the merits,
particularly with respect to the alleged incidents that the AJ accepted
for amendment. A review of the record reflects that all the factual
allegations comprising complainant's complaint, including the amendments,
form a single claim of ongoing harassment based on reprisal for her
prior protected activity. The agency should not fragment, or break up,
a complainant's legal claim during EEO complaint processing, as fragmented
processing compromises a complainant's ability to present an integrated
and coherent claim of unlawful employment discrimination.
Based on the foregoing and after careful review of the record, we VACATE
the agency's final decision finding no discrimination and we REMAND
this matter to the agency to conduct a supplemental investigation in
accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
1. The agency shall complete a supplemental investigation within
sixty (60) calendar days from the date this decision becomes final.
The supplemental investigation will focus on the alleged incidents that
the AJ accepted for amendment, (B)(8)-(B)(12). Thereafter, the agency
shall provide complainant, within thirty (30) calendar days from the
date the agency completes the supplemental investigation, an opportunity
to respond to the investigative report. The agency shall issue a new
final agency decision on complainant's entire complaint, defined herein
as an ongoing harassment claim, within thirty (30) calendar days of
complainant's response or, if complainant fails to respond, within thirty
(30) calendar days following the last day complainant would have been
permitted to respond.
2. Copies of the completed supplemental investigation and the new
final agency decision must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (M0408)
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 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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 5, 2008
Date
2
0120082585
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
7
0120082585