Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120123044 Agency No. 200P-0691-2011100972 DECISION Complainant filed an appeal from the Agency's June 26, 2012 final decision concerning her equal employment opportunity (EEO) complaint. She alleged employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patient Services Assistant at the Agency's Greater West Los Angeles VA Medical Center facility in Los Angeles, California. On January 20, 2011, Complainant filed an EEO complaint alleging that the Agency harassed her and discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when: 1. beginning on or around November 10, 2010, a male employee made lewd comments and unwanted advances to Complainant and, when reported, Complainant's supervisor failed to take appropriate action; 2. on November 10 and 12, 2010, the Human Resources Specialist (HR Specialist) asked Complainant to rewrite a Report of Contact (ROC); 3. on or about November 12, 2010, Complainant's supervisor inquired about Complainant's concerns with the HR Specialist; 4. on or about November 18, 2010, the HR Specialist requested to schedule a fact-finding meeting with Complainant for November 29, 2010; 5. on November 29, 2010, during the fact-finding meeting, the HR Specialist said something to the effect of "if you do not do this, we can take the Last Chance Agreement off the table," and then the HR Specialist rescinded her comment, but required that Complainant submit a new ROC by December 3, 2010; 6. on December 10, 2010, the Budget Chief (Chief) accused Complainant of not cooperating with the fact-finding investigation, and he stated that a new ROC had to be provided by close of business on December 13, 2010, and that failure to do so may result in disciplinary action; 7. on December 7, 2010, Complainant was removed from her location within the Business Office and reassigned to a location outside of the Business Office; and 8. on December 13, 2010, a former co-worker told Complainant that "[a named Agency official] had said that, "Complainant was no longer allowed in the Business Office." In her complaint, Complainant named three responsible management officials: 1) the Program Manager, who was her immediate supervisor (Supervisor); 2) the Chief, Health Administration Services, who was Complainant's second-level supervisor (Chief), and 3) the Human Resources Specialist (HR Specialist). On February 17, 2011, the Agency dismissed the complaint for two reasons: 1) failure to bring these matters to the attention of an EEO Counselor and 2) failure to state a claim. On November 23, 2011, in Jacobs v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112459 (November 23, 2011), the Equal Employment Opportunity Commission (EEOC) reversed the Agency's final decision dismissing Complainant's formal complaint and remanded the matter to the Agency for further processing. At the conclusion of 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The record shows that Complainant had prior EEO activity. Management, including the HR Specialist, was aware that Complainant participated as a witness in a coworker's sexual harassment complaint in 2010. The fact-finding investigation involved claims against Complainant's supervisor. Complainant was asked to provide a statement for the investigation against her [then] immediate supervisor. Claim 1 - Supervisor failed to take appropriate action The record reflects that Complainant alleged that, on November 10, 2010, her male supervisor made inappropriate advances of a sexual nature to her. She alleged that he told her that he was looking for a wife and asked if she would be interested. When she objected, he "merely shrugged it off." Complainant did not raise her concerns with another member of managaement because she averred that her supervisor's conduct stopped. On December 6, 2010, Complainant initiated EEO contact regarding this matter. Claim 2 - HR Specialist demanded a rewrite of Complainant's Report of Contact The investigation shows that the HR Specialist contacted Complainant and told Complainant that she wanted Complainant to rewrite her Report of Contact (ROC) in relation to an EEO inquiry that was being conducted with regard to another employee's claims. The HR Specialist insisted that Complainant include the exact wording that the HR Specialist believed Complainant had used in an earlier telephone interview. Complainant refused to rewrite the ROC. Claim 3 - Supervisor inquiry On November 12, 2010, Complainant's supervisor asked Complainant if she had any concerns that involved the HR Specialist. Claims 4 and 5 - HR Specialist threatened Complainant On November 18, 2010, Complainant was informed that she was required to appear before a fact-finding panel as a witness in an investigation involving alleged misconduct by her supervisor. The fact-finding meeting occurred on November 29, 2010. During the meeting, the HR Specialist insisted that Complainant redo her statement. During the meeting, the HR Specialist is alleged by Complainant to have said that "if you do not do this, we can take the Last Chance Agreement off the table." The HR Specialist acknowledged that she reminded Complainant that she was under a Last Chance Agreement, but denied that she threatened Complainant. Claim 6 - Complainant accused of not cooperating On December 10, 2010, the Budget Chief sent Complainant an email stating that it had come to his attention that she had "failed and / or refused to cooperate in an ongoing VA fact-finding investigation." He directed Complainant to complete a full account of her knowledge on the matter under investigation. He also advised Complainant that a failure to provide the ROC may result in disciplinary action. Complainant testified that she submitted a ROC by December 13, 2010. Complainant asserts that she was harassed due to EEO activity. Claim 7 - Complainant reassigned On December 7, 2010, management removed Complainant from the Business Office and assigned her to work in the file room as part of a Last Chance Agreement. The Supervisor maintained that Complainant was removed from the Business Office due to a Privacy Act violation, that Complainant conceded that she made. Complainant had accessed the records of her ex-spouse, which was a violation of protocol.1 Complainant agreed to a Last Chance Agreement. Management witnesses testified that Complainant accepted the reassignment and demotion, in lieu of termination, after it was determined that Complainant improperly accessed her ex-spouse's patient records. Claim 8 - Co-worker statement When Complainant's duties required her to go to the Business Office to get travel pay, an employee told Complainant that she had heard that the Chief did not want Complainant in the Business Office. Complainant maintains that she was harassed based on her EEO activity. Agency's Final Decision The Agency found that Complainant established the elements of a prima facie case of reprisal, as she was subjected to an adverse action within a short period of time after she alleged discrimination by the named management officials who were aware of her prior EEO protected activity. Next, the Agency found that management met its burden to articulate a legitimate, nondiscriminatory reason for its actions. The Agency relied on its determination that Complainant improperly accessed a patient's records and the Agency reassigned her under the terms of a Last Chance Agreement. The Agency then found that Complainant failed to show that its reasons were pretexts. The Agency found that Complainant failed to establish her claim of harassment and a hostile work environment. The Agency acknowledged that "the incidents alleged by the complainant did occur." The Agency found that there was "insufficient evidence in the record to conclude that the actions were based on the Complainant's membership in a protected group." The Agency reasoned that Complainant was unable to demonstrate that the incident contributed to a hostile work environment based on reprisal. The Agency also concluded that Complainant failed to show that the conduct was sufficiently severe or pervasive to create an objectively hostile work environment. The Agency next concluded that because it did not find that the conduct at issue constituted harassment in violation of the federal EEO law, it "need not determine whether management is liable for discriminatory harassment." Although the Agency ruled against Complainant on her harassment claim, the Agency found in favor of Complainant, when it determined that the Agency committed a per se reprisal violation with regard to claims 2, 5 and 6. Specifically, the Agency found that the conduct of the HR Specialist, "insisting that the complainant rewrite her ROC, contacting the complainant's immediate supervisor, and threatening to revoke the complainant's Last Chance Agreement, rises to the level of interfering and intimidating conduct that could deter the complainant or others from engaging in protected EEO activity." For those reasons, the Agency found the actions of the HR Specialist were "intimidating actions and a per se violation of EEOC regulations." In addition, the Agency found, on its own, that there had been an unlawful disclosure of Complainant's protected EEO activity without her consent. Consequently, the Agency found that the Agency committed a per se violation of EEOC's Title VII regulations and ordered "equitable" relief and corrective action. The decision found in favor of Complainant on the reprisal claim (which we construe as claims, 2, 5 and 6). The Agency ruled against Complainant on her harassment claims as stated in claims 1, 3, 4, 7 and 8. The Agency found that Complainant was "entitled to costs associated with the prosecution of this claim" and this includes any "reasonable out-of-pocket expenses." In an August 27, 2012 letter to Complainant, the Agency stated that it has taken all of the actions it ordered in the Final Order, with the exception of any incurred pecuniary or non-pecuniary losses. The Agency stated that its Office of Resolution Management (ORM) was investigating to determine the amount of damages to be awarded. The record does not show whether that investigation was completed or whether Complainant ever recovered full relief. This decision is in response to Complainant's appeal from the Agency's decision following the remand. Although Complainant filed an appeal, she did not challenge the merits of the Agency's decision. Rather, her appeal relates solely to the issue of whether she has received full relief. Specifically, Complainant is seeking full recovery of her costs, including reimbursement of consultant fees. ANALYSIS AND FINDINGS 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. (November 9, 1999) (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"). Section 717 of Title VII requires that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on sex"). To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 their 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 intimidating, 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). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Complainant does not challenge the Agency's determination that the conduct did not rise to the level of harassment. Finally, an agency may be liable for unlawful harassment by an employee when the agency has empowered that employee to take tangible employment actions against the victim, i.e., the harassing employee is a supervisor of the victim. Vance v. Ball State University, 570 U.S. __, 133 S. Ct. 2434 (2013). In this case, management was aware of alleged misconduct by Complainant's supervisor, because another employee had filed a complaint against the supervisor and Complainant offered a statement. It is unclear whether the Agency took prompt and effective corrective action to address the harassment or the supervisor stopped on his own. Complainant stated that the conduct stopped. Under these circumstances, we do not find sufficient evidence to hold the Agency liable for subjecting Complainant to a hostile work environment. Complainant can establish reprisal discrimination by presenting facts that if unexplained, reasonably give rise to an inference of discrimination. In this case, the Agency acknowledged that Complainant established the prima facie elements of her claim of retaliation. She participated in EEO activity, and within a month of her participation, she was removed from the Business Office. The Agency maintains that it articulated a legitimate, nondiscriminatory reason for its action removing Complainant from the Business Office and that Complainant failed to offer testimony sufficient to establish that management's articulated reason was pretext. Complainant does not dispute that she inappropriately accessed a patient's records and the reassignment was based on that reason. We find that the Agency's stated reason is supported by the record. Per Se Violation - Interference with the EEO Process An employee may suffer unlawful retaliation if her supervisor or management interferes with her EEO activity. See Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Complainant v. Dep't of Defense, EEOC Appeal No. 0120132212 (November 8, 2013). When management's behavior has a potentially chilling effect on the use of the EEO complaint process - the ultimate tool that employees have to enforce equal employment opportunity - the behavior is a per se violation. Moreover, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory that a reasonable person would have found "materially adverse," which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO charge process); Complainant v. Department of Defense, EEOC Appeal No. 0120132212 (November 8, 2013) (reversing an Administrative Judge's finding that Complainant failed to establish that she was subjected to unlawful retaliation). In the instant case, we find that the HR Specialist's actions were reasonably likely to deter Complainant, or any of the other employees who were present at the time, from personally engaging in the EEO process. The fact that the Agency failed to take steps earlier to effectively address the workplace claims of sex harassment, the HR Specialist's interference in the wording of Complainant's statement, and its acknowledged unlawful disclosure of her EEO claims, support the Agency's finding of a per se violation. Because we are finding for Complainant on the per se violation, it is unnecessary for us to further address her alternative claim of a hostile work environment. After our own review of the record, we find that the Agency properly found that it had subjected Complainant to unlawful retaliation, which constituted a per se violation of Title VII regulations. CONCLUSION Accordingly, we AFFIRM the Agency's Final Decision, finding a per se violation with regard to claims 2, 5 and 6. In order to remedy this violation, we MODIFY the Decision as to the Relief to provide the full and appropriate relief due to Complainant and REMAND this matter to the Agency so that it can take the actions specified in the following Order. We also AFFIRM the Agency's findings of no discrimination with respect to claims 1, 3, 4, 7, and 8. ORDER The Agency is ORDERED to undertake the following remedial actions: 1. Provide Complainant with full, make-whole relief in accordance with 29 C.F.R. § 1614.501, including recovery of any costs, loss of benefits or attorney's fees. 2. Conduct a supplemental investigation to determine Complainant's entitlement to compensatory damages. No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final agency decision addressing Complainant's compensatory damages. 3. Provide at least eight (8) hours of EEO training to the Chief, Health Administrative Services, the Human Resources Specialist and the Budget Chief, with respect to the obligation to insure the vigorous enforcement of the equal employment opportunity laws and refraining from retaliation. 4. Consider taking disciplinary action against the responsible management officials, including the HR Specialist. The Agency shall report its decision within thirty(30) calendar days. If the Agency decides to take disciplinary action, it shall identify the actions taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) with specificity for its decision not to impose discipline. 5. Post the attached notification (see below) at the affected facility or their right to be free of unlawful discrimination and assurance that the reprisal will not recur. 6. Agency and its management shall cease and desist from discouraging employees from engaging in the EEO process and discussing employees' EEO matters with employees who do not have a legitimate need to know about other employees' EEO activity. The Agency is further directed to submit a report of compliance, as is provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action listed in this order has been implemented. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/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 this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. POSTING ORDER (G0610) The Agency is ordered to post at its Greater West Los Angeles VA Medical Center facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 tends to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations April 10, 2015 __________________ Date 1 Complainant alleged that other employees reviewed the records of others, but the Agency challenged Complainant's actions after Complainant alleged that the Agency failed to protect her from her husband, who she asserts had been stalking her at the office. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120123044 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120123044