Regena L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120181648 (E.E.O.C. Sep. 11, 2019)

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

Regena L.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181648

Hearing No. 450-2016-00015X

Agency No. 2003-0549-2015100414

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated February 16, 2018, dismissing her complaint of
unlawful 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. For the following reasons, the Commission
REVERSES the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as Licensed Professional
Counselor (LPC) at a Medical Center Domiciliary in Bonham, Texas.

On December 16, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to hostile work environment on the bases of race
(African-American) and reprisal for prior protected EEO activity (complaint to management,
union, and Office of Special Counsel about Agency's failure to place her in position for which
she was hired) when:

1. On or about October 3, 2014, management would not place Complainant in an

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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LPC position in the Post-Traumatic Stress Disorder (PTSD) program, which is
where she was hired to work;
2. On October 15, 2014, the Domiciliary Chief told Complainant, "I could pull the
announcement for your current position and then you would have to compete for
it;"
3. On October 17, 2014, the Social Work Supervisor issued Complainant an
unsatisfactory placement follow-up; and
4. On October 22, 2014, the Domiciliary Chief put her finger in Complainant's face
and yelled, "I should not have hired you ... You are not qualified!"

The Agency accepted (1) as an independently actionable claim of disparate treatment, and (1)
through (4) as incidents supporting the harassment claim.

Following the EEO investigation, in a letter dated July 10, 2015, the Agency provided
Complainant with a copy of the report of investigation and notice of her right to request a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an
immediate final agency decision. The Agency stated that Complainant did not respond to the
notice. On October 25, 2015, the Agency issued a final decision pursuant to 29 C. F. R.
§1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

Complainant appealed the final decision to the Commission and challenged that she had timely
requested a hearing before an AJ. Complainant provided a copy of a hearing request form dated
July 29, 2015. The Commission found the Agency erred in issuing a final decision. See EEOC
Appeal No. 0120160641 (February 15, 2018). The decision noted the Commission's record
system for the Hearing Unit found evidence that, on August 21, 2015, EEOC's Dallas District
Office docketed a hearing request for the instant complaint (identified as EEOC Hearings No.
450-2016-00015X). Id. The Commission found Complainant requested a hearing before an AJ
in a timely manner and, as such, the Agency erred in issuing a final decision on Complainant’s
complaint. Id. The Commission vacated the final decision and ordered the Agency to submit a
copy of this decision along with the complaint file to the Hearings Unit. Id. The order instructed
the AJ to conduct appropriate proceedings and issue a decision on the complaint in accordance
with 29 C.P.R. § 1614.109, and ordered the Agency to issue a final action in accordance with 29
C.P.R. § 1614.110 thereafter. Id.

On February 6, 2018, an AJ issued an Order Entering Dismissal of Complainant’s complaint,
pursuant to 29 C.F.R. §1614.107(a)(1). The AJ stated she was dismissing the complaint because
the Agency issued a final decision on October 25, 2015. Thereafter, the Agency issued a final
order dated February 16, 2018, adopting the AJ’s dismissal.

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ANALYSIS AND FINDINGS

In the Commission’s previous decision, EEOC Appeal No. 0120160641. we found the evidence
presented by Complainant and the record system for the Hearings Unit supported Complainant’s
claim she submitted a timely request for hearing. In the interest of preserving access to the EEO
process, we remanded the matter to the Hearings Unit to conduct appropriate proceedings.
Instead, the AJ improperly dismissed the complaint by relying on the Agency’s final decision
dated October 25, 2015, which this Commission vacated. We find the dismissal of
Complainant’s complaint was an error. As we previously ordered, this matter should be
remanded so an AJ can conduct appropriate proceedings and issue a decision on the complaint in
accordance with 29 C.P.R. § 1614.109.

CONCLUSION

Accordingly, we REVERSE the Agency’s final order and REMAND the complaint to the
Agency for further processing consistent with this decision and the Order herein.

ORDER
The Agency shall submit a copy of this decision and the complaint file to the Hearings Unit of
the EEOC Dallas District Office within 30 days of the date this decision is issued. Thereafter, the
Administrative Judge shall conduct appropriate proceedings and issue a decision on the
complaint in accordance with 29 C.P.R. § 1614.109, and the Agency shall issue a final action in
accordance with 29 C.P.R. § 1614.110.

Within 60 days of the date this decision is issued, the Agency shall submit a report of compliance
showing that a copy of this decision and the compliant file has been transmitted to the Hearings
Unit in digital format as provided in the statement entitled "Implementation of the Commission's
Decision."
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
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 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).
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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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.
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. 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

September 11, 2019
Date