EEOC Appeal 2020000039

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trena M.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000039
Hearing No. 520-2019-00321X
Agency No. 200H-0632-2018104072
DISMISSAL OF APPEAL
On October 2, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) concerning a formal complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Financial Accounts Technician at the
Agency’s VA Medical Center facility in Northport, New York.
On August 22, 2018, Complainant filed a formal complaint alleging that she was subjected to
discrimination based on disability. Complainant alleged a hostile work environment which was
evidenced by the following events:
1. 	from June 2017 to the present, the supervisor and Acting Chief, Business Office, created a
hostile work environment to include the following: excluded Complainant from birthday
celebrations, failed to take actions against coworkers who sent a negative instant message
about 	the Complainant 	in 	error, 	complained 	and 	made 	negative 	comments 	about
1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.

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Complainant’s 	appearance 	caused 	by 	her 	disability, 	instructed 	employees 	not 	to
communicate directly with Complainant, and continued to allow an assaultive coworker to
threaten and harass Complainant, and when the Complainant reported her concerns to
management, no action was taken;
2. 	on August 17, 2017, she was issued a written counseling;
3. 	in April and May 2018, Complainant’s phone jack was removed from the wall, the bulletin
board was removed along with other tampering in her work area, and when she reported
these incidents to the supervisor, he laughed and made comments about her appearance
and informed her that her co-workers complain about her as well;
4. 	in May 2018, Complainant became aware that the supervisor and her co-workers were
participating in “secret meetings,” three co-workers filed malicious and false workplace
violence complaints about Complainant, thereby causing a fact-finding investigation in
June 2018;
5. 	in June 2018, as a result of the workplace violence complaint in May 2018, Complainant’s
purse was searched for weapons while she was in the VA emergency room; and
6. 	in 	August 	2018, 	despite 	Complainant’s 	fear 	of 	being 	along 	with 	the 	supervisor,
Complainant was forced to remain in her work unit while co-workers have been moved to
other areas.
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 (AJ). Complainant requested a hearing.
On July 29, 2019, the AJ issued an Initial Conference Order, scheduling a conference with the
parties for August 20, 2019. 	Following the August 20, 2019 Pre-Hearing Conference, the AJ
issued a Case Management Order which required the parties to meet specific deadlines with respect
to supplementing the record/discovery. The parties were also warned that if they did not comply
with the AJ’s Order, they were subjected to sanctions up to dismissal of the complaint or default
judgment. 	Complainant was ordered to submit a statement articulating her damages, three
rebuttals, and a narrative which were due September 6, 2019. When Complainant failed to submit
any of the requested documents, the AJ issued an order dated September 27, 2019, dismissing the
hearing request. The case was remanded to the Agency for a final decision.
Thereafter, prior to the issuance of a final decision by the Agency, Complainant filed the instant
appeal. In her appeal, Complainant asserted that on August 30, 2019, she provided the requested
discovery/narrative to the AJ and the Agency’s point of contact which was before the September
6, 2019 deadline.

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Based on the instant record, it appears that no final decision has been issued by the Agency.
Therefore, Complainant’s appeal is dismissed as premature. However, given the amount of time
that has passed since the AJ’s remand to the agency, we are ordering the Agency to issue its final
decision.
The appeal is DISMISSED. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ORDERED to take the following action:
Within sixty (60) calendar days of the date this decision is issued, the Agency is
ordered to issue its final decision on Complainant's complaint pursuant to 29 C.F.R.
§ 1614.110(b). 	The decision shall contain appropriate appeal rights to this
Commission.
The Agency shall provide a copy of its final decision to EEOC's Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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.

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Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. 	The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. 	The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
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.

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If you file a civil action, you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his or her full name and
official title. 	Failure to do so may result in the dismissal of your case in court. 	“Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. 	Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2020
Date