U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leonarda S.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120152303 Agency No. 200P-0648-2013-103952 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's May 28, 2015, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision. ISSUE PRESENTED The issue presented is whether the Agency properly found that Complainant did not prove that he was subjected to disparate treatment and harassment based on sex, national origin, religion, disability, and in reprisal for previous EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-6 Pharmacy Technician at the VA Medical Center facility in Portland, Oregon. Complainant was hired in this position in 2003. On September 18, 2013, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of national origin (Russian), sex (female), religion ("Jewish Christian"), disability, and in reprisal for prior protected EEO activity when: 1. In spring and August 2011, the Pharmacy Service Inpatient Supervisor (S1) repeatedly called Complainant "KGB" because she is Russian. S1 and staff were present and laughed at Complainant, and S1 became hostile after Complainant reported the incident to the Pharmacy Chief; 2. In July 2011, S1 became angry at Complainant for having work restrictions because her hand was numb and hurting and told Complainant to get her job description; 3. In August 2011, S1 spoke to Complainant in a hostile and threatening manner, stating, "Did you enter a sick leave request for next week?;" 4. In September 2011, S1 ignored Complainant's work restrictions and scheduled her to train a new employee in the chemotherapy room; 5. On November 9, 2011, the Lead Pharmacy Technician and S1 yelled at Complainant that she would work with a new employee and not to leave him alone; 6. On November 15, 2011, while hospitalized for a mild heart attack caused by S1, S1 showed up uninvited at Complainant's hospital room; 7. In January 2012, after Complainant told S1 she could not work in the chemotherapy room because of her hand injury, S1 told her, "Then you will not work the pharmacy if you do not work in the chemotherapy room;" 8. In August 2012, S1 made Complainant sign a written agreement to work in the chemotherapy room as a condition of continued employment, although no one else was made to sign a similar agreement; 9. On April 25, 2013, after Complainant reported safety issues in the chemotherapy room which were confirmed by the Federal Labor Relations Board (FLRB), S1 gave Complainant a letter of reprimand in retaliation, which was based on false allegations;2 10. As of July 25, 2013, S1 retaliated against Complainant by intimidating her physically, denying her vacation requests, and by being extraordinarily rude to her; and 11. On February 11, 2014, in retaliation for filing an EEO complaint, Complainant was informed by the Assistant Chief of Pharmacy Services (S2) that she was reassigned to Operative Care because she had filed an EEO complaint. In an investigative statement, Complainant stated that she has a record of having a disability because she had Carpal Tunnel Syndrome, which was "repaired" through surgery. She further stated that she cannot lift more than 10 or 15 pounds, and she has been able to work full duty except she cannot use 60 cc syringes or lift more than 10 pounds. Regarding claim 1, Complainant stated S1 called her "KGB" in front of other employees, and she is afraid others will think she is a spy because of his comments. Complainant stated that after S1 made the comment, she turned around to walk away, but employees were laughing. Complainant stated that S1 called her "KGB" a few times, but everybody else continued saying it. Regarding claim 2, Complainant stated that S1 told her that she had to submit restrictions from the doctor, which she did, but they did not satisfy S1. She stated that she had to go back to the doctor so that the doctor could write exactly which syringes she could not use at work. Complainant stated that S1 still sent her to work in the chemotherapy section, and she had to use smaller syringes which make it hard for her condition because of the high volume, which caused more pain in her arm. She also stated that Complainant asked her to get her job description so that he would know what she could and could not perform. Regarding claim 3, Complainant stated that S1 made a schedule months ahead. Complainant further stated that when she entered her requests for time off, S1 came to her and said that she needed to give more notice of when she needed leave. Complainant stated that she told S1 that her doctor wanted to see her every two weeks, and she never knew when it would occur. Complainant stated that two weeks later, she asked for another day off, and S1 "smacked" the door in the IV room and said, "How many times do I have to tell you, you have to plan your sick leave with your doctor? This is the last time I will tell you." Complainant stated that she did not look at S1, and he started screaming, "Look at me! Look at me!" Complainant further stated that the union subsequently met with S1, and S1 finally agreed to give her leave for doctor's appointments as needed. Regarding claim 4, Complainant stated that S1 ignored her work restrictions and scheduled her to train a new employee in the chemotherapy room. She stated that she had no idea why S1 did this, but she thought he wanted to show how much he hated her. Complainant stated that training new employees was part of her position description, but she was unable to train the new employee because her wrists hurt and her hand does not work correctly. Regarding claim 5, Complainant stated that she was working in Unit Dose3 and went outside to do something when S1 started to yell at her in "a slightly elevated voice" that she should not leave a student alone in front of the entire pharmacy. Complainant stated that she went to the union, and the student said he had already been working by himself for six months. Complainant stated that she had not left the new employee alone, just stepped outside to prepack. Complainant stated that students should not be left alone in the pharmacy, but she did not know what "left alone" means. Regarding claim 6, Complainant stated that on November 15, 2011, she was hospitalized because S1 had caused her to experience extreme stress by yelling at her and making her afraid. She stated that S1 showed up at the hospital to see her and asked what happened and how she was doing. Complainant stated that she then pushed the nurse's button, and after a while, S1 left. Complainant stated that other employees also showed up at her hospital room uninvited. Regarding claim 7, Complainant stated that S1 told her that he would transfer her to the Outpatient Pharmacy, which Complainant rejected. She stated that she was not transferred to the Outpatient Pharmacy, but she thought S1 said it because he hates her and thought she was useless and "not functional." Complainant stated that when she worked in the chemotherapy room, management did not tell her to work outside her restrictions, but using the smaller syringes nevertheless aggravated her condition. Regarding claim 8, Complainant stated that S1 made her sign paperwork that would allow her to come back to the pharmacy, and S2 told her to sign it. Complainant stated that she said "fine" because she wanted to return to the pharmacy because she liked that job. Regarding claim 9, Complainant stated that after she reported safety issues in the chemotherapy room to the FLRB, S1 issued her a letter of reprimand for being late 15 minutes from coming back from lunch or break. Complainant stated that she had to deliver floor stock by moving bags of fluid, and she was slow because of her injury. Regarding claim 10, Complainant stated when she resubmitted her vacation request in the system to remind S1 in July 2013, S1 yelled and threw paper at her. Complainant stated that she told S1 that she had previously submitted the vacation request in January 2013 and was simply reminding him of her upcoming vacation, but S1 did not say anything, left, and came back and said he found the previous request. Complainant also stated that S1 slammed the door, stormed in, and stormed out. Complainant stated that she took vacation as scheduled. Regarding claim 11, Complainant stated that on February 11, 2013, she went to S2 to ask him why she was not on the schedule. Complainant stated that S2 asked her if she had filed an EEO complaint, and when she responded that she had, he stated that she could not work in the pharmacy because she had filed an EEO complaint. Complainant stated that S1 then escorted her to the Operative Care department, where she had worked before with health technicians. Complainant stated that in Operative Care, she worked with Health Technicians washing patients before surgery, delivering oxygen to operating rooms, filling Post-Anesthesia Care Unit (PACU) carts, stocking, and cleaning. Complainant further stated that at the time of her investigative statement, she worked in the Outpatient Pharmacy because she refused to wash patients because the nurse told her she did not properly wash patients because she had not been trained, and patients could die from bacteria. The Assistant Chief (S2) (Caucasian male, Roman Catholic, German English) stated that during the relevant time period, he was aware of Complainant's national origin and sex but was not aware of her religion. He further stated that he knew that she had surgery and was restricted from using certain types of syringes because of Carpal Tunnel Syndrome. Regarding claim 1, S2 stated that he was aware that S1 called Complainant "KGB" and counseled S1 regarding the matter, but he understood that S1 did not call Complainant "KGB" after he was counseled. S2 further stated that he counseled S1 the same day or the day after the matter was reported to him, and he felt that the "KGB" reference would be offensive if he were Russian. Regarding claims 2 and 8, S2 stated that management received advice from Human Resources (HR) to rotate everyone through the chemotherapy area. He stated that Complainant had been involved in chemotherapy preparation up to this time, but Complainant did not feel comfortable working under those conditions and had restrictions on what she could do with syringes working under the hood. S2 stated that Complainant had difficulty working with 60 cubic centimeters (cc) syringes, and therefore, management had her to used smaller 30 cc syringes. S2 also stated that HR had everyone to sign their job description during this time period, although he was against this requirement S2 stated that Complainant was not treated any differently than other employees who also had to sign their job descriptions. S2 also stated that he did not recall that there was a written agreement to work in the chemotherapy room, but the position description had a signature line for employees to sign. Regarding claim 3, S2 stated that Complainant reported to him that S1 was acting inappropriately and making demands on her, but S1 denied it when S2 talked to him on a daily basis. S2 stated that he did not recall the specific of Complainant's sick leave request, but it was very common for supervisors to remind employees to put in their sick leave requests. Regarding claim 4, S2 stated that Complainant was asked to train a new employee, but he did know she had any restrictions that would prevent her from doing so. He stated that Complainant had not been working in the chemotherapy area, and she only wanted to work in the IV room. S2 stated that training employees is a normal duty for all employees in Complainant's position. Regarding claim 5, S2 stated that he received a complaint alleging that S1 told Complainant that she should not leave the new employee alone, and he addressed it with S1 because he had counseled Complainant in front of other employees, including the new employee. S2 stated that S1 acknowledged that he should not have done this, and as far as S2 knew, it was never repeated. Regarding claim 7, S2 stated that HR instructed management that all Pharmacy Technicians had to perform all duties, and if they could not perform any duty, they must be placed on a Performance Improvement Plan (PIP). S2 stated that the Agency adjusted the size of syringes so that Complainant could use them without violating her restrictions. Regarding claim 9, S2 stated that he did not recall a letter of reprimand being issued because of the FLRB matter, although he recalled Complainant being reprimanded for using the cell phone in the pharmacy. He stated that employees in conjunction with the union lodged an FLRB complaint regarding safety issues in the oncology area that resulted in two trainings on the matter. Regarding claim 10, S2 stated that he was not aware of any vacation requests by Complainant that were denied. He stated that he sensed that Complainant and S1 did not work together, but he thought much of what she described was probably "overblown." He stated that other employees complained about S1, but he did not think S1 was intimidating or retaliating against Complainant. Regarding claim 11, S2 stated that in December 2013, Complainant complained to HR about S1's denial of her request for sick leave, and HR sent her to employee health because she was distraught and seemed to be in danger of having a heart attack. S2 stated that he told Complainant that her sick leave would be approved, but she was very hysterical. S2 also stated that an acting supervisor assigned Complainant to Operative Care while S2 was on leave, but when S2 returned to work in January 2014, he brought Complainant back to the Pharmacy in Inpatient Care. S2 further stated that in February 2014, he received notice that Complainant had filed an addendum to her EEO complaint that she filed in September 2013, and he was advised by HR that, based on her emotional outburst in December 2013, and the fact it was a hostile work environment complaint, he should move her out of Inpatient Care and into another part of the Pharmacy. "My concern was that if I moved her into another part of Pharmacy, she maybe wouldn't want to go, and she would claim hostile work environment based on that, so I asked the union to get involved," S2 stated. Report of Investigation (ROI), p. 218. S2 further stated that he met with Complainant and a union official to explain that management would move her out of the Inpatient Pharmacy until they could resolve the hostile work environment allegation. S2 stated that when Complainant "in kind of jest" stated that she was going to be fired for filing an EEO addendum, he responded that she would not be fired but he had concerns about her being in Inpatient and would like to move her out of the Pharmacy to the Outpatient section. He stated that he asked Complainant what she felt about his proposal, and Complainant responded that she would like to return to Operative Care, and he stated that this was an idea he had not thought about, and he would contact the Manager of Operative Care (OC Manager). S2 further stated that the OC Manager agreed to have Complainant reassigned to her section, and the OC Manager reported that things were going well with Complainant's reassignment. S2 further stated that, later in February 2014, he heard from HR that there were problems in Operative Care, and when he contacted the OC Manager, she reported that things were not working out well and there was tension between Complainant and staff. S2 stated that he then asked Complainant how she felt about being reassigned to the Outpatient Pharmacy, and Complainant said it would be "fine." S2 stated that shortly thereafter, Complainant came to him and reported that her lawyer said that she should not have been moved out of the Inpatient Pharmacy, and she needed to be returned to it, but S2 responded that he could not do so because HR advised him that she needed to stay in Outpatient until an investigation was conducted because Complainant claimed that Inpatient was a "hostile work area." S2 also stated that he had begun the investigation by interviewing 16 people, but had approximately 40 more people to interview. S1 (Indian male, Muslim) stated that he assumed Complainant is Russian based on her accent and was aware she is female. He further stated that he did not know Complainant's religion and knew she had a workers' compensation claim for a wrist injury and Carpal Tunnel Syndrome symptoms. Regarding claim 1, S1 stated that he did not repeatedly call Complainant "KFB" but vaguely remembered a conversation wherein "a remark along the lines of KGB was used," although he did not personally refer to Complainant as "KGB." When asked if the comment was directed at Complainant, S1 stated that he could not remember the specifics, and it was one incident. However, S1 stated that S2 talked to him about the comment, and he told him that he used the term "KGB" in some reference, but not to refer to Complainant. Regarding claim 2, S1 stated that he recalled that HR and the workers' compensation team determined what Complainant could and could not do and he made sure his Lead Technician followed Complainant's doctor's orders, but he was not angry at her for getting hurt. He stated that he did not recall asking Complainant to sign her job description. He stated that when Complainant submitted her restrictions, he sent them to the lady in the workers' compensation area in HR, and they worked on a letter to provide Complainant based on the restrictions. Regarding claim 3, S1 stated that he did not recall being angry with Complainant, but he recalled he told staff that they needed to schedule routine or monthly appointments with doctors in advance so that it allowed time for him to make sure there was adequate coverage. S1 further stated that he recalled that Complainant sometimes asked for leave at the last minute, but he never disapproved her leave although he asked her to request leave as far in advance as possible. Regarding claim 4, S1 stated that in the chemotherapy area, technicians are trained for approximately four weeks, and the first weeks involve observing the technician that is training them and then gradually helping them. He stated that in the third week, trainees essentially work while trainers observe, and in the fourth week, trainees essentially make all preparations while the trainer observes. S1 stated that he told Complainant that there was a staff shortage, and she agreed to observe the trainee while following her doctor's restrictions. S1 stated that Complainant felt that she should have been exempt from working in the chemotherapy area, but she was able to work in the IV room and the manipulations in chemotherapy were similar to those required in IV. S1 stated that he did not want Complainant to do anything outside her restrictions, and this was clearly communicated to her and to the Lead Technician. Regarding claim 5, S1 stated that he received feedback from someone that, on at least one occasion, Complainant had left a student in the unit dose area and walked away. He stated that he called telling Complainant and the Lead Technician that when she was in the unit dose area, she should not leave the student by himself. However, S1 stated that he did not yell at Complainant. S1 further stated that he also told the Technician group that students should not be left alone. S1 stated that the student was there to supplement and learn, not to take over the duties of the Technicians. Regarding claim 6, S1 stated that he recalled that Complainant was taken to the hospital adjacent to the office, which can be accessed via a skyway bridge. S1 stated that he recalled a technician was going over to visit Complainant who asked him if he wanted to go see her, and S1 felt as a new supervisor that it would be good to see how she was doing, especially because her condition occurred at work. He stated that he visited Complainant in the hospital, and as far as he knew, the visit went "okay." Regarding claim 7, S1 stated that he might have told Complainant "something to the effect" that as an Inpatient Pharmacy Technician, her qualification standards require her to work in the chemotherapy area. He stated that HR said that if it was part of the job description, employees had to perform it. S1 stated that in January 2012, Complainant had no restrictions beyond decreasing her gripping and squeezing, and he did not expect her to work outside these restrictions. Regarding claim 8, S1 stated that he did not think that Complainant had to sign a written agreement to work in the chemotherapy room, but employees signed their functional statement. Regarding claim 9, S1 stated that he proposed reprimanding Complainant because technicians told him that Complainant was not working with staff, and she was on her cell phone often. He further stated that Complainant was Absent without Leave (AWOL) for being away from the pharmacy without authorization on four occasions from December 2012 until March 2013 and not carrying the Agency's cell telephone with her or refusing to answer it on two occasions in March 2013. He stated that when he presented Complainant with the technicians' story, she did not address the allegations, but accused the technicians of lying and S1 of being a bad person. Regarding claim 10, S1 stated that he did not deny Complainant any leave, nor was he physically intimidating or rude toward her. The Lead Technician (European-American female, Catholic) stated that she was aware Complainant was born in Kirgizstan with a Russian background, is female, but was not aware of her religion or disability. However, she stated that she was aware Complainant had surgery on her hands. Regarding claim 4, the Lead Technician stated that the office was short of chemotherapy technicians and needed to train new ones, and Complainant was good at training. She stated that management asked Complainant if she would train new technicians, and she said yes. The Lead Technician stated that she told Complainant that she should let her know if training became too much, but she seemed fine and happy. Regarding claim 5, the Lead Technician stated that Complainant "walked" while a student was in training without telling the Pharmacist where she was going, which left the student alone. She stated that this caught the attention of the Pharmacist, and Complainant was instructed not to leave the student alone, but there was no yelling or anything hostile. The record reveals that in a letter dated September 29, 2011, Complainant's physician restricted her from performing repetitive large syringe pushing/pulling, i.e., using 60 cc chemotherapy syringes while making oncology medication. These restrictions were repeated in a letter from the physician October 27, 2011, with the addition that Complainant should also avoid repetitive wrist bending or tight grip activities. The record also reveals that in a letter dated September 30, 2011, the Injury Program Manager notified Complainant that she was temporarily assigned to perform her regular duties under the supervision of S1 in the Inpatient Pharmacy, with the exception she was restricted from using 60 cc syringes. In a letter dated December 22, 2011, Complainant's physician informed the Agency that Complainant should minimize repetitive gripping and refrain from lifting more than five pounds. In a letter dated December 22, 2011, the Agency offered Complainant a temporary assignment in the Inpatient Pharmacy that included printing refill reports from the computer system; pulling and delivering large quantities of small and light medications (ward stocking); delivering small bags; pulling unit dose medications; restocking the chemotherapy area with drugs and supplies; and restocking the IV area with drugs and supplies. Complainant accepted the assignment on December 22, 2011. In a letter dated May 31, 2012, Complainant's physician notified the Agency that Complainant could not draw medications using a 60 cc syringe for an additional three months beginning May 31, 2012. In a letter dated June 4, 2012, the Agency offered Complainant a temporary assignment within her restrictions. Complainant accepted the assignment June 4, 2012. In a letter dated July 26, 2012, Complainant's physician stated that Complainant could not repetitively grip or grab with either hand more than five times per hour, or lift more than five pounds. In a letter dated August 23, 2012, Complainant's physician stated that Complainant must wear the brace at work and could not lift more than 35 pounds. In a letter from the Injury Program Manager to Complainant dated August 30, 2012, the Injury Program Manager stated that Complainant would be temporarily assigned to the normal duties of her job as defined in the functional statement for Impatient Pharmacy Technician, including preparation of chemotherapeutic agents. The physical requirements of this position included intermittent lifting/carrying/sitting/standing/walking/stooping/bending/simple grasping/fine manipulation, with the exception of wearing the prescribed brace and not lifting more than 35 pounds. Complainant signed and accepted this assignment on August 30, 2012. On September 27, 2012, Complainant's physician released her to work full duty beginning September 28, 2012, with the use of a right wrist brace. The record contains a memorandum to Complainant from S2 dated January 10, 2014. In that memorandum, S1 notified Complainant that her temporary detail assignment had been terminated, and she should no longer report to the Operative Care Division. S1 further stated that effective January 13, 2014, Complainant should return to her regular duty position as a Pharmacy Technician in Inpatient Pharmacy on her regularly-assigned tour of duty. After the investigation, 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision dismissed that claims 2, 4, 7, 8, and 9 on the basis they were initiated by untimely EEO Counselor contact. Nevertheless, the Agency also addressed the merits of these claims as part of Complainant's overall ongoing harassment claim. Regarding the harassment claim, the Agency found that Complainant failed to prove that she was subjected to a hostile work environment because she did not show that the alleged actions were based upon a discriminatory motive or were severe or pervasive enough to create a hostile work environment. CONTENTIONS ON APPEAL On appeal, Complainant reiterates her claim that she has been subjected to repeated acts of discrimination by management, including being called "KGB" by S1, yelled at by S1, and had objects thrown at her by S1. The Agency requests that we affirm its final decision. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). ANALYSIS AND FINDINGS Untimely EEO Counselor Contact As an initial matter, we note that the Agency dismissed claims 2, 4, 7, 8, and 9 on the basis they were initiated by untimely EEO Counselor contact. The Supreme Court of the United States has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. In this case, we find that all the alleged incidents contained in Complainant's complaint constitute a single hostile work environment claim. However, the May 16, 2013 issuance of a letter of reprimand (claim 9) was a discreet act that occurred more than 45 days before Complainant's initial EEO Counselor contact on July 25, 2013. Complainant has not presented any argument that would warrant a waiver of the applicable time limits for this matter. Therefore, we find that the Agency properly dismissed claim 9. See Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002) (official reprimand was discrete act falling outside filing period, and therefore, untimely raised). Nevertheless, we consider claim 9 as background evidence in support of Complainant's remaining hostile work environment claim. We find that claims 2, 4, 7, and 8 were not discreet acts and are part of Complainant's overall ongoing harassment claim; therefore, we find that the Agency's dismissal of these matters was improper. Claim 11: Retaliatory Reassignment In claim 11, Complainant alleges that she was reassigned in retaliation for filing an EEO complaint in which she alleged harassment based on her disability, religion, sex, and national origin. The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter or dissaude a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Charlie K. v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120142315 (Jan. 24, 2017). Reprisal can be shown through either direct or indirect evidence. "Direct evidence" is either written or verbal evidence that, on its face, demonstrates bias and is linked to an adverse action. Pomerantz v. Dep't of Veterans Affairs, EEOC Appeal No. 01990534 (Sept. 13, 2002). Where there is direct evidence of discrimination, there is no need to prove a prima facie case or facts from which an inference of discrimination can be drawn. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Moreover, where the trier of fact finds that there is direct evidence of discrimination, liability is automatically established. Guidance on Recent Developments in Disparate Treatment Theory, No. 915.002, July 14, 1992, Section III; EEOC Compliance Manual § 604.3, "Proof of Disparate Treatment," at 6-7 (June 1, 2006). In this case, S2 acknowledged that he reassigned Complainant to Operative Care because she had alleged she was subjected to harassment by S1 in her EEO complaint. Agency management maintains that it was justified in reassigning Complainant because the Agency had a duty to act promptly to correct the alleged supervisory harassment, even if it learned of the harassment allegations through an EEO complaint. We note, however, that S2 acknowledged that he learned that Complainant was alleging that S1 was acting inappropriately toward her at early as 2011. He further stated that he also learned that Complainant was alleging that S2 was subjecting her to a hostile work environment in December 2012, but he did not investigate the allegations at that time because Complainant did not have "any documentation." S2 also stated that in 2013, he received complaints from Complainant "at least once a week" about S1's actions. As such, we find it suspicious that S2 suddenly found Complainant's EEO complaint sufficient grounds to respond to her harassment allegations. Further, while the Agency had a duty to act promptly to investigate and respond to the alleged harassment, we find that reassigning Complainant was not the appropriate response. We note that we have held that it is generally improper to reassign an alleged victim of harassment instead of the perpetrator of the harassment. Valles v. Dep't of Defense, EEOC Appeal No. 0120062663 (Jan. 7, 2008); see also Boyer v. Dep't of Transportation, EEOC Appeal No. 01A24440 (Aug. 24, 2004). In this case, we determine that it would have been more appropriate to reassign S1 instead of Complainant. To the extent that the Agency maintains that Complainant agreed to the reassignment, we are persuaded that Complainant reasonably felt she had very little choice but to acquiesce with S2's intent to reassign her. Moreover, the fact that the reassignment was imposed by S2 on Complainant is underscored by the fact that S2 refused to rescind the reassignment after Complainant subsequently objected to it. At any rate, S2 clearly acknowledged that he reassigned Complainant because she filed an EEO complaint, and such an action is reasonably likely to deter Complainant and other employees from engaging in EEO activity. Therefore, we find that S2 retaliated against Complainant. Disparate Treatment and Hostile Work Environment The remaining claims in Complainant's complaint can be analyzed under both disparate treatment and hostile work environment analyses. In order to prevail in a disparate treatment claim, Complainant must 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 she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). In order to establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her statutorily protected class; (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 environment, 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). Upon review, we assume, arguendo and without so finding, that Complainant established a prima facie case of discrimination for each claim. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions, as recounted in detail above. We note that many of Complainant's allegations concern her objection to working in the chemotherapy area. The record reveals that as Complainant submitted updated restrictions from her physician, the Agency officially promptly offered her assignments within her restrictions, and Complainant accepted those assignments. During the relevant time period, Complainant was only restricted from using 60 cc syringes, repetitive gripping, and lifting various weights, from five to 35 pounds. Complainant contends that she sometimes experienced numbness or pain in her hand even while using smaller syringes within her physician's restrictions. However, smaller syringes were within her restrictions, and the Agency reasonably relied on these restrictions as accurately reflecting Complainant's need for an accommodation. Further, Complainant did not show how training an employee by merely observing him in the chemotherapy area violated her work restrictions. Additionally, although Complainant alleged that she was forced to sign an agreement that said she must work in chemotherapy to retain her job, there is no evidence of such an agreement in the record. Instead, the record reflects that employees had to sign their position descriptions or functional statements, which we do not find to be an unreasonable requirement nor do we find persuasive evidence that it was discriminatorily applied. Although Complainant clearly did not want to work in chemotherapy, she simply does not provide any evidence that working in this area violated her medical restrictions. In fact, Complainant signed and agreed to job offers that explicitly included working in chemotherapy. As such, we cannot find that the Agency's action regarding her chemotherapy assignments was harassing. Complainant also contends that S1 denied her leave for vacation and was hostile about her sick leave request. However, the record reflects that Complainant was not denied leave in either situation. Moreover, we do not find it unreasonable that management would prefer that employees submit leave requests for regularly scheduled appointments in advance so that adequate staffing coverage could be attained. Finally, we note that in a memorandum dated August 31, 2011, S2 reported that S1 admitted that "maybe" he told another employee to "be careful, [Complainant] knows people in the KGB." ROI, p. 233. S2 further reported that he told S1 how inappropriate this comment was and how Complainant might be very upset with this type of comment. Additionally, a Certified Pharmacy Technician attested that she witnessed S1 and the Lead Technician refer to Complainant as "KGB" on one occasion. As such, we are persuaded that S1 referred to Complainant as "KGB" on at least one occasion. Moreover, it is clearly a reference to Complainant's Russian national origin. Complainant contends that S1 said this a few times, but we are not persuaded it was uttered pervasively based on the statements of witnesses who said they heard it uttered once. Further, although the use of this term in this manner was inappropriate, we do not find that it was the type of "highly charged epithet" or term that "dredges up the entire history" oppression and bigotry. See Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120123332 (Sept. 10, 2014). Therefore, we do not find that the term was used here in a manner that reasonably would create a hostile work environment, nor do we find that use of the term here is persuasive evidence that the alleged actions occurred because of discriminatory animus. Nevertheless, we emphasize that the Agency should discourage such conduct through counseling and comprehensive EEO training. Thus, we find that Complainant did not prove that the Agency's nondiscriminatory explanations for its actions were pretext for unlawful discrimination. Additionally, we do not find that the alleged actions were severe or pervasive enough to constitute a hostile work environment. Consequently, we find that the Agency properly found that Complainant was not subjected to unlawful harassment or disparate treatment with regard to all claims except claim 11. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision with respect to all claims except claim 11 for the reasons set forth in this decision. The Commission REVERSES the Agency's finding of no reprisal for claim 11 and REMANDS this matter to the Agency to take further action consistent with this decision and the ORDERS below. ORDER The Agency is ordered to undertake the following remedial actions, to the extent it has not already done so: 1. Within 120 calendar days after this decision is issued, the Agency shall offer to reinstate/reassign Complainant to her previous position and assignment in Outpatient Care. Complainant, within fifteen (15) calendar days of receiving the offer, shall either accept or decline said offer in writing. 2. Within 120 calendar days after this decision is issued, the Agency shall provide eight hours of in-person EEO training to all its management officials and supervisors at VA Medical Center in Portland, Oregon, with an emphasis on the Agency's obligation to prevent reprisal and to properly respond to harassment allegations. 3. Within 120 calendar days from the date this decision becomes final, the Agency will conduct and complete a supplemental investigation on the issue of Complainant's entitlement to compensatory damages, and will afford her an opportunity to establish a causal relationship between her reassignment (claim 11) and pecuniary or non-pecuniary losses, if any. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency will issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth herein. 4. The Agency shall consider taking disciplinary action against the responsible management official, S2, regarding Complainant's reassignment (claim 11). The Agency shall report its decision to the Commission. 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. 5. Within 120 calendar days from the date this decision becomes final, the Agency shall determine Complainant's entitlement to attorney's fees and costs as indicated below. Along with its determination on compensatory damages, the Agency will issue a final decision on the issue of attorney's fees. The final decision shall contain appeal rights to the Commission. POSTING ORDER (G1016) The Agency is ordered to post at its Portland, Oregon facilities 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. ATTORNEY'S FEES (H1016) 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, 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 11-17-2017 __________________ Date 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 The record reveals that the reprimand was proposed on April 25, 2013, but not effectuated until May 16, 2013. 3 Unit Dose involves individually packaging medicine for hospitalized patients --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152303 2 0120152303