U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susann G,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162437 Hearing No. 510-2016-00016X Agency No. 200I05162015102375 DECISION On July 22, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 14, 2016, final decision (FAD) 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. For the following reasons, the Commission REVERSES the Agency's FAD which found that Complainant was not subjected to reprisal discrimination. The complaint is REMANDED for compliance. ISSUES PRESENTED Did the Agency correctly conclude that Complainant did not prove by a preponderance of the evidence that she was subjected to reprisal discrimination? BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant (GS-5) at the Bay Pines VA Medical Center in Bay Pines, Florida. Her supervisors were a Medical Administration Specialist (S1), Assistant Chief of Health Administration Service (S2), and Acting Chief Health Administration Service (S3). Complainant was subjected to sexual harassment when her immediate supervisor at the time sent her inappropriate messages, made sexually suggestive comments and commented on her physical attributes to other employees. Complainant's Appeal Brief (Appeal Brief), p. 3; see, also, Report of Investigation (ROI), p. 93, 117, 190-195. After Complainant filed an EEO complaint in 2013, the Agency terminated the supervisor from federal employment effective July 26, 2014. ROI, p. 4, 104, 196. Subsequently, in December 2014, he returned to the Agency on several occasions, apparently in connection with his Merit Systems Protection Board case appealing his termination. ROI, p. 105. Complainant explained that she received information that he was moving freely about the facility, and in restricted employee areas, and that management did not inform her of this. ROI, p. 105. After she informed her representative about the issue, the supervisor was asked to leave the facility. Id.2 As a result of the supervisor's presence at the facility, Complainant requested a transfer from her work location at the "4D Clinic" to a location where the supervisor would not have access. ROI, p. 105. Complainant scheduled a meeting in December 2014 with S2, however, she was out of office, therefore Complainant met with S3. Id. During the December 19, 2014 meeting, to which Complainant's union representative was a witness, Complainant asked for a reassignment, but also confirmed that she would be able to qualify for a non-competitive promotion to GS-6 she knew was on the horizon because of a September 16, 2014 directive from Human Resources permitting promotion of certain types of Medical Support Assistant positions from GS-5 to GS-6. ROI, p. 154, 172. Human Resources authorized the one-time promotion because it recognized that a number of Medical Support Assistants were incorrectly designated as GS-5 when they were initially hired. ROI, p. 155. Medical Support Assistants who were working in Patient Aligned Care Teams (PACT) and specialty clinics were eligible for the promotions, and Complainant was one of those individuals who was eligible for the promotion because she was working in a qualifying area. Id.; see also, ROI, p. 96. Otherwise, the full performance level for a Medical Support Assistant is GS-5. ROI, p. 214. Complainant explained that S3 initially told her that she would be moved to a "primary care facility" where she would be a GS-6. Id. Following that meeting, evidence indicates that S3 discussed the meeting and the request with S1 and S2, and explained that was when "final agreement was made of where employee would go." ROI, p. 181. On December 18, 2014, S2 issued a memorandum to Complainant stating that her transfer request was approved effective December 29, 2014. ROI, p. 202. The extremely brief memorandum, which included only that the request was approved and that Complainant should report to the new supervisor on December 29, 2014, also stated: "We are requesting your cooperation and support. Keeping in mind our primary goal is to provide quality services to our veterans." ROI, p. 202. Complainant received notification that she would be transferred on December 26, 2014, three days before she started working in the new position. Appeal Brief, p. 3. Complainant explained that even though it was to a different area than previously mentioned by S3, she was not informed that her promotion to GS-6 would be affected. ROI, p. 96. There is no indication that Complainant's SF-50 was changed to reflect transfer to different area. ROI, p. 199; Appeal Brief, p. 5. On February 23, 2015, S2 released a memorandum explaining that the one-time review for promotions was completed and that names of eligible employees had been submitted to Human Resources for promotions. ROI, p. 161-162. Complainant inquired about the status of her promotion at that time, and was told that she would not be promoted because she was not in a qualifying area. That is, Complainant was working in an "inpatient" area which did not qualify for promotion. ROI, p. 6. On April 27, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when on February 26, 2015, Complainant became aware that she was not promoted to a GS-6 position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant did not prove that the Agency subjected her to the alleged discrimination. CONTENTIONS ON APPEAL I. Complainant's Contentions On Appeal Complainant explained that her previous supervisor was found to have subjected her to sexual harassment by sending her inappropriate messages, making sexually suggestive comments, commenting on her physical attributes to other employees and generally making her work-life miserable. The supervisor was terminated from federal employment, but Complainant explained that he returned to her work location several times. Complainant contends that she requested to be moved from a location at her workplace that was not open to the public to avoid any confrontation with him. Complainant states that she met with S3 to request a transfer and when she was subsequently transferred, she was denied a promotion for which she previously qualified. II. Agency's Contentions On Appeal The Agency contends that Complainant states that she was promised a GS-6 position, however, the Agency contends that Complainant does not present any evidence in the record to substantiate that assertion. Further, the Agency contends that Complainant was transferred to a new section at her own request. The Agency contends that Complainant's own union representative states that a GS-6 position was "discussed," but that one was not promised. The Agency further contends that Complainant does not establish a connection between her EEO activity and the denial of the GS-6 promotion. ANALYSIS AND FINDINGS The Agency concluded that Complainant did not prove by a preponderance of the evidence that she was subjected to reprisal discrimination when she was not promoted to a GS-6 position. Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment reprisal discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that s/he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on the Agency to articulate a legitimate, nondiscriminatory, reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). To meet her burden of proving that the Agency's actions were pretextual, Complainant needs to demonstrate such "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); see, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). Complainant engaged in EEO activity by reporting that her supervisor harassed her, and by subsequently, in December 2014, requesting to change work locations to avoid confrontation with her supervisor. Complainant wanted to change work locations because of seemingly unwarranted visits by the supervisor to her work facility, and in areas where the supervisor had no legitimate business. These visits were also the subject of a December 2014 EEO complaint alleging reprisal discrimination because managers did not inform her that her harasser was on the premises. The Agency was aware of Complainant's EEO activity, including the various managers involved in the present complaint, S1, S2 and S3. Subsequently, Complainant was subjected to adverse action when she was not promoted to a GS-6 position. Nexus exists between the protected activity and the adverse action because of the proximity of time. The events took place in the span of about one month.3 The Agency stated legitimate, nondiscriminatory, reasons for the alleged adverse actions. The Agency explained that Complainant did not receive a promotion because she was not occupying a position that was eligible for the noncompetitive promotion. See, e.g., Agency Brief, p. 1. The Agency further stated that Complainant was transferred because she requested it. Agency Brief, p. 1. Complainant was able to demonstrate that the Agency's legitimate, nondiscriminatory, reasons were pretext. The Agency's stated reason that Complainant did not receive the GS-6 promotion because she requested a transfer which was granted, and was therefore subsequently in a position that was simply not eligible for promotion is implausible. During the meeting with S3, Complainant requested to be moved to a different location in her work facility, but evidence establishes that she also inquired about whether she would still be eligible for an upcoming non-competitive promotion to GS-6. Complainant and her union representative confirmed that S3 informed Complainant that she would be moved to a position which would allow for a GS-6 promotion given the fact that she was already working in a position which qualified her for the promotion. Following that meeting, S3 conferred with S1 and S2 regarding Complainant's transfer; the content of the meetings or e-mail messages regarding the subject are notably absent from the record, as is any information about what positions were available.4 However, as a result of the meetings, Complainant was instead transferred to a position that would not be eligible for the promotion, yet she was not informed of this even though it was a critical part of her transfer request. It is unlikely that Complainant was inadvertently moved to a position which was not eligible for promotion, especially given that she highlighted the upcoming promotion, and the fact that her position would otherwise be at the full performance level at GS-5. Also, while the memorandum granting the transfer was brief, it managed to mention that Complainant should be cooperative about her move keeping in mind the goals of the Agency, which is a point that can viewed in a negative light given the fact that Complainant requested transfer to be away from her harasser. Management officials also did not mention to Complainant the critical point that the new position would remove her prior eligibility for GS-6 promotion, which is information any reasonable manager would have realized was critical to an employee. This was also being done at a time where there were extensive efforts to identify employees eligible for the promotion to report to Human Resources. Management's assertion that Complainant was not promoted due to the technicality of being transferred to a new position is also weak because Complainant's SF-50 was never updated to reflect the move. Therefore, Complainant was in some respects still qualified for the promotion because she was technically assigned to an area receiving the promotions. Management could have responded to Complainant's February 2014 inquiries in a manner which suggests a recognition that it was problematic that Complainant would not receive a promotion for which she was previously qualified for less than two months prior. However, their response that Complainant was not promoted because she was not in a qualifying position indicates a degree of deliberateness to the initial action of transferring Complainant to a position in which she would not be promoted. Due to the Agency's actions, Complainant received a significantly less desirable reassignment after a report of harassment which the Agency does not dispute occurred. Analogous cases have deemed such reassignments to constitute reprisal and inadequate to address a complaint of harassment. See, e.g., Donatta v. U.S. Postal Serv., EEOC Appeal No. 01A54941 (May 5, 2006) (upholding AJ's decision which found that the complainant was subjected to reprisal when she was reassigned from the facility where she worked while the harasser remained at the facility); Julian v. U.S. Postal Serv., EEOC Appeal No. 01912215 (Sept. 4, 1991) (finding that a remedy which placed the complainant in a less desirable position was not adequate because it forced the victim to bear the burden of her supervisor's illegal actions). Complainant demonstrated that the Agency's legitimate, nondiscriminatory, reasons were pretext because the Agency's reasons are unworthy of credence. Therefore, Complainant proved by a preponderance of the evidence that she was subjected to reprisal discrimination. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD which found that Complainant was not subjected to disparate treatment reprisal discrimination is REVERSED. The complaint is REMANDED for compliance with this decision and the Order below. ORDER Within one hundred and twenty (120) calendar days from the date this decision is issued, the Agency is ordered to take the following actions: 1. Offer Complainant promotion to GS-6 in the position she currently occupies, or a substantially equivalent position, along with back pay, interest, and other benefits pursuant to 29 C.F.R. § 1614.501(c). The offer must be made in writing, providing Complainant fifteen (15) calendar days from receipt of the offer to notify the agency of the acceptance or rejection. Failure of the Complainant to respond in writing within fifteen (15) calendar days of receipt of such offer shall be construed as a declination. Award Complainant back pay from the date that she would have been promoted to a GS-6 position if she had remained in her position to the date that she accepts or rejects the Agency's offer of a GS-6 position pursuant to this decision. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within 120 (one hundred and twenty) calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. The Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to this complaint. Complainant 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. 3. Provide training to the Agency personnel responsible for the reprisal, placing special emphasis on an employer's obligation not to engage in discrimination against employees because of EEO activity; 4. Post at the Bay Pines VA Medical Center, copies of the notice discussed below; 5. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors involved in the discrimination. 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). 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 all of the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Bay Pines VA Medical Center 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 as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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 (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 5-25-18 __________________ 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 These visits were the subject of an EEO complaint alleging reprisal, which was dismissed for failure to state a claim. Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151654 (Sept. 4, 2015). S2 was a responding management official in this complaint. 3 The Agency either disingenuously or mistakenly argues in its brief that Complainant's prior EEO activity occurred more than a year before-- at the time of the actual harassment complaint. Agency Brief, p. 2. 4 This Agency is reminded of its obligation to "develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred." 29 C.F.R. § 1614.108(b). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2016-2437 9 0120162437