U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beryl B.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170576 Hearing No. 420-2015-00210X Agency No. 2003-0520-2015101176 DECISION On November 30, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 16, 2016, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant served the Agency as a volunteer pharmacy technician at the Veterans Affairs Gulf Coast Veterans Health Care System, Pharmacy Service in Biloxi, Mississippi. On January 26, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on her race/national origin (Asian/Korea), sex (female), and reprisal for prior protected EEO opposition activity under Title VII when: 1. After applying in April 2013, for a position in the Pharmacy Service via the Chief thereof, the Agency promised to hire her after she volunteered and became a U.S. citizen, but after she became a citizen in August 2013, she was not hired; 2. From July 11, 2013 through March 14, 2014, she was harassed when: a) inpatient pharmacy techs dumped on her by leaving early and disappearing making her complete the work; b) pharmacists stared at her with hate and disrespect; c) she was forced to use other techs' login credentials for the computer; and d) an identified male pharmacist sexually harassed her by leering and ogling; 3. On August 16, 2013, she was offended when an identified inpatient pharmacy technician stated she should go to Hard Rock café since many Asian people go there and she could meet friends there; 4. On August 20, 2013, she was denied IV training by the inpatient pharmacy supervisor and the Chief of the Pharmacy Service; 5. On October 31, 2013, her car tire was cut while at the facility; 6. On February 27, 2014, she was forced to continue delivering chemo after she asked the Pharmacy Service inpatient supervisor to stop doing so; 7. On February 27, 2014, she found a bag of feces in her work locker; and 8. Effective March 14, 2014, she was forced to resign as a volunteer due to on-going harassment. Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). Sometime later as sanction for Complainant not complying with specified orders, the AJ found that Complainant waived her right to request a hearing and returned her case to the Agency to issue a FAD. The Agency then dismissed the complaint for failure to state a claim because she was a volunteer, not an employee. The instant appeal followed. Complainant, who is represented by counsel, does not challenge the AJ's decision that she waived her right to request a hearing. She argues that she was a common-law employee of the Agency because EEOC case law provides that volunteers are protected when there is a history of volunteer work eventually leading to permanent employment at the facility or is linked to regular employment. She asks that the FAD be vacated. ANALYSIS AND FINDINGS In EEOC Compliance Manuel Section 2, "Threshold Issues," No. 915.003, at 2-28 to 2-29 (July 21, 2005), the Commission advises that while volunteers usually are not protected "employees," an individual may be considered an employee of a particular entity if as a result of the volunteer service, she receives benefits such as a pension, group life insurance, and access to professional certification, even if the benefits are provided by a third party. The Commission advises that the benefits constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship." The Commission also advises that a volunteer may also be covered by EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity because in such situations, discrimination by the employer operates to deny the Complainant of an employment opportunity. Id. We find that Complainant did not receive significant remuneration rather than merely the inconsequential incidents of an otherwise gratuitous relationship. The VHA Handbook 1620.01, Voluntary Service Procedures, provides that meals for volunteers may be furnished without charge if their scheduled assignment is at least four hours. Complainant stated she volunteered on eight hour shifts, and the only benefit she received for were $5 meal tickets. Complainant was also provided, according to the Voluntary Service Procedures, with Office of Workers' Compensation Program (OWCP) benefits, albeit it appears she was not aware of this. This remuneration is not sufficiently significant to make Complainant a common-law employee. Complainant stated that before she started volunteering, in February or March 2013, the Pharmacy Service outpatient supervisor called her husband and advised they would direct hire her. Her husband was a pharmacist in the Pharmacy Service. In April 2013, she met with the Pharmacy Service' Chief, Assistant Chief, and outpatient supervisor in the Chief's office. She advised them that she was recently certified/licensed as a pharmacy technician, but had no experience doing this work. According to Complainant, the Chief said he would hire her directly because of her husband's good work. Complainant stated that the Chief gave her an application, and she returned it to him the next week. The Chief countered that Complainant came to him to talk about a position, and he suggested that she needed experience, and could get some by volunteering there. He denied promising Complainant a job because her husband did good work, and testified he never said that. The Chief stated that while they discussed the direct hire process, he told Complainant that she would have to apply and compete for a position, and he did not at any time promise her a position. He stated that he did not know when Complainant submitted her application, and while he could not recall if he checked with anybody in Human Resources about her application, he believed he probably did, and to his knowledge Human Resources did not place her name on the certificate of eligible candidates (for hire) because she was not a U.S. citizen, and he can't select someone who is not on the certificate of eligible candidates. The Pharmacy Service outpatient supervisor, in response to the question of whether he was aware Complainant was offered a position in the Chief's office with him, the Chief and Assistant Chief present responded no. In response to a follow up question of whether the Chief promised Complainant a position by direct hire, the outpatient supervisor responded "No, not at all. Just encouraged her to apply for the job. But no, I didn't hear any promising of positions." His recollection was that when the meeting in the Chief's office occurred a position was coming open and they encouraged Complainant to apply. He believed that Human Resources contacted them and advised Complainant was not qualified because she was not a U.S. citizen. The Assistant Chief of the Pharmacy Service, who Complainant stated was at the above meeting, was asked if he was aware of anybody telling Complainant that she was going to be promised a job, and responded "No... I'm not aware of any of that." Complainant wrote that on May 14, 2013, she telephoned the Chief and he promised that as soon as she became a U.S. citizen, "the job is yours." She added that the Chief and the Pharmacy Service outpatient supervisor conditioned this on there being an opening, which they assured her would be any time. Using an application dated May 15, 2013, Complainant applied with Volunteer Services. The approval process to start as a volunteer included a hospital policies and procedures review, Health Insurance Portability and Accountability (HIPAA) training, safety training, infection control training, a TB test, a police services sign off, and it finished with the issuance of an identification badge to Complainant on July 11, 2013. She stated that she served as a volunteer from July 11, 2013 to March 14, 2014. Her official volunteer record reflects she was on the rolls from July 11, 2013 to September 29, 2014, with 520 hours of service. Hence, from July - March 2013, when she actually reported to the Pharmacy Service, Complainant volunteered an average of roughly 15 hours weekly. During her tenure as a volunteer with Pharmacy Services, she primarily served in the inpatient area, and was in the outpatient area for about two weeks. Report of Investigation (ROI), Exhibit B6, at 8 (Bates stamp 300). Complainant stated that again and again, each time she wanted to quit volunteering, the Chief told her to keep volunteering because she had to for him to hire her, which he would once there was an opening, which he assured her would be at any time. Likewise, Complainant stated that the Pharmacy Service outpatient supervisor frequently assured her that there would be an opening soon, any time now, but then put her off by saying they don't have the budget. After her initial application for employment with the Pharmacy Service dated May 1, 2012 (a copy thereof she provided in discovery) she did not apply for another position. Complainant explained that after she gave her application to the Chief in April 2012, she asked him if she needed to apply online and he responded no, when the time comes to hire her, he is the only one responsible for the hiring decision and he will hire her. When asked about Complainant not being hired after becoming a U.S. citizen in August 2013, the Chief replied her name has not been on a certificate of eligible candidates, and denied telling her he would hire her after she became a U.S. citizen. The Pharmacy Services outpatient supervisor stated that the Chief encouraged Complainant to reapply after she became a U.S. citizen. When asked if Complainant gave her a reason for volunteering, the Pharmacy Services inpatient supervisor replied that Complainant said she passed the pharmacy tech certification exam, but had no experience as a pharmacy technician so volunteering would get her that experience, and her goal was to get a job somewhere as a pharmacy technician. The inpatient supervisor stated that passing the exam with no experience is a very fantastic accomplishment. An outpatient clinical pharmacy specialist, who did not have a supervisory relationship with Complainant, stated "When [Complainant] was hired as a volunteer, several times I had heard her and her husband, and in the presence of other supervisors, such as [the Pharmacy Service outpatient supervisor] talk about, well, since you got this, the citizenship, she was going to be hired. I did hear lots of times, you know, the next position was going to be hers... as soon as she got citizenship." ROI, Exhibit B3, at 9 (Bates stamp 272). We find, by a preponderance of the evidence, that Complainant was a volunteer, not a common-law employee since volunteer work is not required for regular employment or regularly leads to regular employment with the Pharmacy Service, or was deceived by the Agency to believe this was so. In response to the deposition question of if she was aware any pharmacy employees were previously volunteers, Complainant responded not that she knew of. See the Agency's Motion for Summary Judgment and Prehearing Submissions (Apr. 11, 2016), at Exhibit D, 26 - 27. She does not argue that volunteering in Pharmacy Services regularly leads to employment there, and there is no evidence of this in the record. Further, we find that the Chief credibly testified under oath that he did not promise Complainant at any time that if she volunteered and became a U.S. citizen he would hire her, rather he advised her that volunteering was a good way to get the pharmacy technician experience she needed after recently getting her pharmacy technician certification. This is consistent with the statement of the Pharmacy Service inpatient supervisor who stated Complainant told her she was volunteering to get experience with the goal of getting a job somewhere as a pharmacy technician. The statements of the Assistant Chief and Pharmacy Service outpatient supervisor corroborate and are consistent with the Chief's testimony. Weighing the evidence, we find that no one in Pharmacy Service management indicated to Complainant that she would be hired if she volunteered and stayed there once she became a citizen with and/or without a job opening, and that the Chief did not tell her she need not apply for new openings to get one. We add that the literal reading of the outpatient pharmacy specialist's statement is that Complainant and her husband talked in the presence of management that since she got citizenship she would be hired and the next position was going to be hers - not that management said these words. Because Complainant was not a common-law employee, the FAD is AFFIRMED. 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 (S0610) 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. 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 July 17, 2018 __________________ 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 0120170576 7 0120170576