EEOC Appeal 2023005354

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Sector
P.O. Box 77960
Washington, DC 20013
Johnson P.,1
Complainant,
v.
Douglas A. Collins,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2023005354
Hearing No. 530-2020-00231X
Agency No. 2004-0613-2013103890
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 30, 2023, final decision concerning her equal employment opportunity
(EEO) complaint of 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
the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. For the
following reasons, the Commission REVERSES the Agency’s final decision, in part.
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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BACKGROUND
At the time of events, giving rise to this complaint, Complainant worked as a Staff
Physician in Pulmonology (GS-15) at the VA Medical Center (VAMC) located in
Martinsburg, West Virginia. On August 30, 2013, Complainant filed an EEO
complaint alleging that the Agency discriminated against her on the bases of sex
(female) and in reprisal for prior protected EEO activity when:
1. 	Since February 2009 and continuing, male physicians were paid more than
Complainant for equal work;
2. 	On January 14, 2013, the Chief of Staff (Supervisor2) (male) humiliated
Complainant in front of her peers when he kicked her out of a meeting,
yelling and screaming, “what are you doing here? Leave. You don’t need
to be here!;”
3. 	On May 8, 2013, the Acting Medical Services Chief (Supervisor1B)
(female), changed Complainant’s schedule without her knowledge and
requested her resignation the following day;
4. 	On June 14, 2013, Supervisor1B denied Complainant’s request for four
days of annual leave around the 4th of July holiday in order to take her son
to college;
5. 	On June 27, 2014, despite Complainant’s private doctor having already
sent a letter stating that Complainant needed four days off for medical
reasons, Supervisor1 had an Agency physician for occupational health
contact Complainant’s doctor to obtain additional medical information
without Complainant’s consent;
6. 	On July 8, 2013, after returning from leave, Complainant discovered that
her workload was significantly increased;
7. 	On June 27, 2013, Complainant requested four days of sick leave for the
period June 28 through July 3, 2013, which Supervisor1B denied and
charged as absence without leave (AWOL);

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8. 	On July 12, 2013, Complainant requested three days of sick leave for the
period June 28 through July 2, 2013, and one day of sick leave for July 3,
2013, which Supervisor1B denied and charged as AWOL;
9. 	On July 17, 2013, during a telephone conversation, Supervisor2 yelled at
Complainant “do you think you’re the only doctor here? You’re not that
good” or words to that effect and countermanded her order to move one of
her pulmonary patients;
10. 	On 	July 	19, 	2013, 	the 	respiratory 	therapy 	staff 	was 	advised 	that
Complainant was no longer their supervisor and that any unresolved
concerns should be addressed with Supervisor1B;
11. 	On 	July 	25, 	2013, 	Supervisor1B 	instructed 	Complainant 	to 	stop
misrepresenting herself as the Director of Pulmonary Care, even though
she had been the director since February 2009;
12. 	Since July 24, 2013, Supervisor2 failed to take action when he was
informed that Supervisor1B charged Complainant AWOL; and
13. 	On or about December 3, 2014, Supervisor2 disrespected and humiliated
Complainant at the quarterly medical staff meeting in front of her
colleagues.
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 AJ. Complainant timely requested a hearing. On October 11, 2017, the AJ
issued a summary judgment decision without a hearing in favor of the Agency
(EEOC Hearing No. 530-2014-00247X). On October 13, 2017, the Agency issued a
final order accepting and fully implementing the AJ’s decision. Complainant filed
an appeal. On March 5, 2020, we issued a decision vacating the Agency’s final order
and 	remanding 	the 	complaint 	to 	an 	AJ 	for 	a 	hearing 	(EEOC 	Appeal 	No.
0120180483).
Thereafter, a new hearing number was assigned (EEOC Hearing No. 530-2020-
00231X). A hearing was held for only the Equal Pay Act claim on June 2-4, 2021.
After this initial hearing, the AJ scheduled a second hearing for the remaining claims

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for a later date. On August 31, 2022, prior to the second hearing, the AJ issued a
“summary decision,” finding that Complainant failed to establish a violation of the
EPA and ordered the parties to revisit settlement negotiations. This summary
decision stated:
A full decision on this claim will be issued in conjunction with a
decision on Complainant’s harassment claim, following the hearing on
that claim. Nevertheless, the parties are advised here, in summary form,
that Complainant has not prevailed on her EPA claim.
On October 26, 2022, the case was reassigned to another AJ and assigned a new
docket number (EEOC Hearing No. 530-2022-00034X). On June 13, 2023, the AJ
dismissed the hearing request pursuant to Complainant’s request and remanded the
complaint to the Agency for a final agency decision. The Agency issued a final
decision on August 30, 2023, concluding that Complainant failed to prove that the
Agency subjected her to discrimination as alleged. The instant appeal followed.
Factual Background2
Complainant is a female pulmonologist who first engaged in EEO activity in 2011.
Complainant holds board certifications in Internal Medicine and Pulmonary and is
eligible for a board in critical care. In 2008, Complainant was hired by the Agency
as a critical care locum physician, covering the Intensive Care Unit (ICU) on a
regular basis. On February 1, 2009, Complainant was competitively selected to a
full-time 	staff 	pulmonologist 	position. 	She 	is 	currently 	the 	only 	full-time
pulmonologist assigned to the pulmonary department.
At the time Complainant was hired, the facility had three part-time pulmonologists
and one physician assistant working in pulmonary. Complainant asserts that the then
Chief 	of 	Medicine 	(Supervisor1A) 	(female), 	Complainant’s 	former 	first-line
supervisor, expressly told Complainant at the time she was hired that she would
serve as Director of Pulmonary and would oversee the respiratory staff and the home
oxygen clinic.3 From that point onward, Complainant signed official documents for
the Agency in her capacity as Director of Pulmonary.
2 The facts set forth below are undisputed unless stated otherwise.
3 Supervisor1A did not provide any testimony as she had already retired by the time
this complaint was investigated.

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For the majority of the time relevant to the instant complaint, Complainant’s first-
line supervisor was Supervisor1B who served as Acting Chief of Medicine from
December 2012 through November 2013. Supervisor1B was appointed to the Acting
Chief of Medicine position by Supervisor2 who served as her direct supervisor. The
Acting Chief of Medicine held a supervisory position, including supervising all
physicians in the Medical Service.4 There was no selection process for this acting
position. Supervisor2 told Supervisor1B that “he thought [Supervisor1B] had the
personality that would directly match what was needed to handle the responsibilities
of that position.”
Supervisor1B had more day-to-day contact with Supervisor2 than other new
supervisors, 	speaking 	to 	him 	a 	few 	times 	a 	week. 	Supervisor2 	provided
Supervisor1B guidance and input regarding Complainant. Supervisor2 was unable
to provide an example of a time when he provided advice to Supervisor1B that she
did not follow.
EEO Activity
Complainant engaged in protected EEO activity by initiating an informal EEO
complaint in February 2011, alleging that Supervisor1A harassed her based on her
race and religion. Complainant did not pursue the process to the formal stage.
However, when the harassment continued, Complainant reported it to Supervisor2
on January 20, 2012. On August 28, 2012, Complainant reported the harassment and
Supervisor2’s failure to take corrective action to the VISN5 5 Director (Director).
In response, Director initiated an administrative investigation in October 2012.
During the course of the investigation, Supervisor1A retired from her position.
Supervisor2 testified that the retirement occurred because Supervisor1A “realized
that her conversational skills were not optimal and it was time for her to retire.” On
November 14, 2012, a report was issued that revealed a “dysfunctional and
unhealthy 	work 	environment 	within 	Medicine 	Service 	where 	[Supervisor1A]
engaged 	in 	acts 	of 	intimidation, 	retaliation, 	bullying 	and 	shouting 	against
4 When appointed, Supervisor1B’s only supervisory experience was being left as the
acting in her prior department when her first line supervisor was on leave, and she
had no specialties that were included in Medical Service. Supervisor1B was not
certified in Internal Medicine, but only physical medicine and rehabilitation.
5 VISN stands for Veterans Integrated Service Network.

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[Complainant] and other staff members within the service.” The report also found
“[a] repeatedly perceived attitude was the expectation that areas of concern would
not or could not be dealt with by [Supervisor1A’s] supervisors and that spanned
several Chiefs of Staff and Hospital Directors.”
The record shows that Supervisor2 was aware of Complainant’s protected EEO
activity, no later than January 20, 2012, when Complainant complained about
harassment to him directly. It is not clear whether or not Supervisor1B knew of
Complainant’s early opposition to discriminatory actions; however, the record
shows that Supervisor1B became aware of Complainant’s EEO activity no later than
March 26, 2013, when she participated in EEO mediation with Complainant
regarding the harassment by Supervisor1A and Supervisor2.
Between January 2013 and December 2014, Complainant continued to engage in
protected EEO activity just days or weeks before the adverse events occurring on
January 14, 2013, May 8, 2013, June 14 & 27 2013, July 8, 12, 17, 19, 24, & 25
2013, and December 3, 2014. The record shows that sometime on or before January
11, 2013, Complainant raised a hostile environment issue with Supervisor2.6 On
March 	26, 	2013, 	Complainant 	reported 	a 	“hostile 	work 	environment” 	to
Supervisor1B, Supervisor2 and Director. In or about the first week of June 2013,
Complainant complained to Supervisor2 in an email that the micromanaging of her
schedule was “harassment.”7 On June 27, 2013, Complainant reported a “hostile
work 	environment” 	to 	Supervisor1B, 	Supervisor2, 	Director 	and 	her 	union
representative.
On July 19, 2013, Complainant initiated EEO contact in the instant matter naming
Supervisor1B and Supervisor2 as the responsible management officials. On July 31,
2013, Complainant reported the continuation of “hostile work environment” to
Supervisor1B. On July 31, 2013, Complainant emailed Supervisor2 upset about his
decision to reduce her nurse practitioner’s coverage in the pulmonary section,
6 A January 11, 2013, response to an email exchange with Supervisor2 regarding
workload issues indicates that Complainant recently raised a “hostile environment”
issue with him. However, the specifics of the discussion this email references are not
apparent from the record.
7 Supervisor2 	copied 	Supervisor1B 	on 	his 	response 	to 	Complainant 	which
essentially denied the harassment and advised Complainant that what she considered
harassment was just part of the job.

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advising him that “[b]ased on all this I consider your action a continuation of
harassment and hostility.”
In early August 2013, Supervisor1B and Supervisor2 provided their responses for
the EEO Counselor report. On August 30, 2013, Complainant filed her formal
complaint in the instant matter.8 On September 9, 2013, the EEO office provided the
Notice of Receipt of Discrimination Complaint regarding the instant matter to
Director. On March 21, 2014, both 	Supervisor1B and 	Supervisor2 	provided
testimony in response to the EEO investigator’s live questioning. It is undisputed
that since 2011, Complainant has identified sex, race, and retaliation at different
times as the basis for harassment.
Supervisor2 and Supervisor1B’s Statements
Supervisor2 admitted knowledge of Complainant’s prior EEO activity, stating,
“Yes, I believe that she has been active in that arena.” When asked whether he was
a participant in that activity, he stated:
I have been all of the above. I was aware of her disagreements with
[Supervisor1A 	and 	Supervisor1B.] 	I 	have 	been 	aware 	of 	some
interactions she had with [Dr. DB].9 I am aware that I’ve been on this
phone more than a couple of times answering questions related to her
EEO activity.
When asked if he had reason to believe that Complainant had been subjected to a
hostile work environment, Supervisor2 stated: “No. I think she is a difficult
individual who makes a lot of people uncomfortable at work.” Supervisor2 also
admitted that Complainant had told him numerous times that she was being harassed.
When asked whether he did anything about the reports of harassment, he stated:
Well, that was part of an investigation when [Supervisor1A] was here.
I have been in communication with our EEO officer many times about
this. I have not been told that it was substantiated enough, or not even
enough, to warrant removing a person away from her. So it just
8 The instant EEO investigation was active through (and beyond) December 2014.
9 Dr. DB is a family physician at VAMC who eventually became the Chief of
Medicine after Supervisor1B’s departure from the position.

2023005354	8
becomes—it’s just stated but never substantiated enough for any further
actions.
Supervisor2 further opined: “People avoid [Complainant] . . . because she’s
unpleasant. So, I would not go out of my way to end up with another 12 complaints.”
Later, however, Supervisor2 testified that he did not avoid Complainant due to her
complaints. 	In 	the 	EEO 	counseling 	report, 	Supervisor2 	commented 	that
“[Complainant] does not want to get along with anyone. He added that she is
constantly in conflict with management and coworkers alike.”10
Regarding Complainant’s complaint against Supervisor1A, Supervisor2 recalled
they were not “getting along well. And I may have been pulled into that one as far
back as 2009-2010.” When asked if this included accusations of harassment and a
hostile work environment, Supervisor2 testified “I recall generally those terms being
bandied about.” Supervisor2 also opined: “I did not think [Supervisor1A] was
harassing 	[Complainant]. I think that 	she was directly 	confronting 	her with
scheduling and work issues.”
Supervisor1B initially denied any knowledge of Complainant’s prior EEO activity.
However, when asked about the claim occurring in May 2013, Supervisor1B alleged
Complainant stated that “I haven’t seen the last of her.” When asked what she
thought Complainant meant, Supervisor1B responded: “Oh, I mean, you know, here
we are and, you know—there was the IG investigation, then, you know, I get slapped
with an EEO.”
Supervisor1B also later admits that during the March 2013 EEO mediation, she was
made 	aware 	of 	Complainant’s 	prior 	complaints 	regarding 	Supervisor1A.
Supervisor1B also claimed that Complainant never told her that she felt she was
being harassed by her. When asked whether she knows that Complainant felt she
was being harassed, Supervisor1B responded: “Again, I mean, I don’t know what
10 Several people who worked with Complainant described her in completely
different terms, including two Respiratory Therapists (RT2 and RT3) who describe
Complainant as “a dedicated pulmonologist… a pleasure to work with.” The
Medical Support Assistant (MS Assistant) at the Martinsburg VAMC stated
Complainant was a “pleasure to work with and courteous to me and everyone in my
presence. She seemed to be one of the few who genuinely cared about the veterans.”

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your term for harassment means. You know, she’s—you know, again, she’s upset
because, you know, she didn’t want to follow the policies and procedures.”
Claim 1 – Equal Pay
Agency’s Pay Setting Policies/Procedures
Physician pay is reviewed at least biannually by a compensation panel comprised of
at 	least 	three 	physicians, 	one 	of 	whom 	is 	designated 	as 	the 	chairperson.
Compensation 	panel 	recommendations 	are 	taken 	into 	“consideration” 	by 	the
approving official, who determines the amount of pay.
During all times relevant herein, Supervisor2 served as the chairperson of the
compensation panels, who made a recommendation to the Director of the Medical
Center who is the approving official. Supervisor2 testified that while he generally
agrees with the panel, he “sometimes steer them up, down, left, or right, and then
make the recommendation.” Supervisor2 also confirmed that he has the last word in
the panel and that “everybody knows [he is] the signature that goes out the door.”
He further noted that it is rare that the Director of the Medical Center does not concur
with his recommendations. Supervisor1B confirms that the amount of pay that a staff
physician obtains is influenced by Supervisor2.
Comparators
Complainant’s male comparators include two staff physicians (Coworker1 and
Coworker2) who upon hiring between 2008 and 2009 were assigned to the ICU.
Their pay was set by the same panel, which in each case was chaired by Supervisor2.
At the time of hiring, Complainant, Coworker1 and Coworker2 were all identified
by the Agency as Table 2, Tier 1 physicians for pay determination purposes.
At the time they were hired, Complainant, Coworker1 and Coworker2 all had one
board certification. Each was hired into a hard-to-fill staff physician position.
Complainant 	had 	more 	experience 	than 	Coworker2. 	At 	the 	time 	of 	hiring,
Complainant was paid less than both Coworker1 and Coworker2. Between 2010 and
2015, after accounting for the differences in the number of new board certifications,
Complainant received an annual salary less than Coworker1 and Coworker2 in
varied amounts that ranged between $7000 and $18,000.

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On January 	12, 2012, Complainant 	emailed 	Supervisor2 and 	Supervisor 1A
regarding the lack of appropriate staffing in the pulmonary department and her
excessive workload and requested a pay increase. In 2012, a pay panel was held for
Complainant but still did not bring her to the same level of salary as Coworker1 or
Coworker2.
The record shows that during the first two years of her tenure, Complainant backed
up the ICU during shortages by covering shifts.
Claim 2 – January 14, 2013, Meeting
On January 10, 2013, Complainant wrote Supervisor2 and Supervisor1B stating that
her workload was becoming overwhelming and complicated, making her concerned
about patient care. On January 11, 2013, this email exchange continued, and
Complainant made an unclear reference regarding a “hostile work environment”
giving the impression that it had been raised recently in another form. On January
14, 2013, Complainant continued this correspondence regarding her workload and
requested a meeting. Shortly thereafter, Supervisor2 emailed Supervisor1B directly
stating: “Lets discuss today to head off the direction of the Emails.” Supervisor1B
responds, “Do you mean with [Complainant]? Or just our regular meeting?”
Supervisor2 responds: “Just you and I…”
Later, on January 14, 2013, Complainant attended an Executive Committee meeting
with a staff physician and cardiologist (Physician2) who invited her to the meeting.
This meeting was attended by the chiefs of the services representing hospital
leadership. Physician2 is the Chair and Complainant is the Co-chair of the CPR11
Committee.
Upon their arrival, Supervisor2 humiliated Complainant by kicking her out of the
meeting, stating words to the effect of, “What are you doing here? Leave, you don’t
need to be here!” Complainant attempted to respond that she was invited, but
Supervisor2 cut her off and told her to leave. Physician2 also tried to explain that
they were from the CPR committee, and Supervisor2 responded that this is not the
CPR Committee. Then, the organizer who sent them the invitation tried to explain,
and Supervisor2 directed that they did not need a co-chair and Complainant needed
to leave.
11 CPR stands for cardiopulmonary resuscitation.

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Physician2 testified that he heard the comment but did not see Supervisor2’s body
language 	while 	saying 	it. 	Physician2 	also 	confirmed 	that 	he 	stopped 	by
Complainant’s office after leaving the meeting. Physician2 stated he was surprised
that Supervisor2 asked them what they were doing there. On January 14, 2013,
Physician Assistant (Physician3), who reported to a different department head,
visited Complainant in her office after the meeting at issue and found her to be very
distressed by what had occurred. While Physician3 was in Complainant’s office,
Physician2 also stopped by. Physician3 described Physician2 as “visibly angry” and
talking about the way he and Complainant had been treated in the meeting.
After the meeting, on January 14, 2013, Complainant emailed Supervisor2, stating:
There has been a miscommunication about the meeting today, but the
way you addressed both me and [Physician2] in front of everybody else
was not professional. You asked us to leave without checking with the
people who sent us an invitation. This is really not acceptable.
Supervisor2 responded:
As I do not regularly see either you or [Physician2] at the meeting, I
was a bit surprised and caught off guard. By no means, was there any
intention to be unprofessional nor do I recall “asking” you to leave. . . .
Co-chairs are not required to attend but are welcome. I believe that I
shared that your attendance was not required but that you were welcome
to stay. The calendar invite goes out to a large number of staff.
On January 15, 2013, Complainant emailed Supervisor2 and stated:
Both me and [Physician2] were there because of invitations. As you
know, I am very busy and definitely do not need to show up for a
meeting that is not for me. As far as you asking me to leave you stated
it very clearly in front of all the people who were available in that
meeting to hear. My concern is you were very disrespectful to both me
and [Physician2] as soon as we entered the room. I think it would have
been more respectful and professional if you took the time to check with
the people who sent the invitation and ask me politely to leave since
you don’t need the co-chair of the CPR committee to be present.

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Supervisor2 responded, “I believe our exchange of emails regarding this topic has
ended.”
On January 15, 2013, Physician2 also emailed Supervisor2 to explain why he and
Complainant were there. Physician2 explained that he invited Complainant as he had
a conflict and could not stay for the whole meeting. Supervisor2 responded:
I am not sure why all the commotion about the meeting. I was in fact
very happy to see you attend. I was not sure why [Complainant]
attended as she is not a committee chair, but I am glad she did not get
tied up in the meeting unnecessarily…We are trying to get better
attendance for this meeting…I greatly appreciate your attendance for
this monthly meeting.
During counseling, Supervisor2 denied any recollection of this incident. Later,
during the investigation, he admitted to a vague recollection of the issue and asserts
he asked why she was there, asked her to leave, and then later apologized for her
perception of the incident. Supervisor2 also claimed not to remember what the
meeting was about.12
When asked if he was aware Complainant reported this incident to the EEO office,
Supervisor2 stated, “I think she included that in innumerable statements in an EEO
complaint.” He further testified:
This was an isolated event where perhaps I didn’t act nicely. And I felt
bad about it and [Complainant] kept sending me email after email after
email…I said I am sorry that you feel that way and that’s what happens
sometimes, and we move on. I have no idea what sends somebody to
the EEO office to file a complaint.
Complainant reported Supervisor2’s harassment to Director, who in turn contacted
the EEO office. The EEO office then arranged an EEO mediation regarding the
matter, but Supervisor2 failed to attend, sending Supervisor1B in his place.
12 Supervisor2 also initially explained that the meeting was held in his office and
there was little room. However, when presented with the Medical Staff Agenda dated
January 14, 2013, he testified the meeting actually would include about 10-20 people
and would not have occurred in his office.

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On 	March 	26, 	2013, 	Complainant 	participated 	in 	the 	EEO 	mediation 	with
Supervisor1B. Supervisor1B testified that during the mediation Complainant stated,
“It’s not you that I want, it’s [Supervisor2] that I want.” Supervisor1B interpreted
that 	to 	mean 	that 	Complainant 	“was 	mad 	at 	[Supervisor2].” 	According 	to
Complainant, following that meeting, Supervisor1B started to engage in conduct that
was retaliatory.
Claim 3 – Complainant’s Schedule and Request for Resignation
On May 8, 2013, Supervisor1B changed Complainant’s schedule, effectively
reorganizing 	her 	day, 	without 	her 	knowledge. 	Complainant 	asserts 	that
Supervisor1B was scheduling tasks with the intent to overwhelm Complainant
unnecessarily. Supervisor1B had cancelled patients from other clinics and put them
in Complainant’s clinic despite Complainant’s prior reports that she was already
overloaded with work. Complainant discussed this matter with Supervisor1B and
told her that she should not be involved in her scheduling and would not continue to
work under these conditions. Supervisor1B told Complainant to either take it or
leave it. Complainant was very upset and stated that she would be leaving and would
resign if this continued. Supervisor1B claims that Complainant stated that she would
be resigning the next day.
The next day (May 9, 2013) Supervisor1B spoke to Complainant and stated she
needed 	her 	to 	put 	her 	resignation 	in 	writing. 	Complainant 	asked 	whether
Supervisor1B was asking her to leave and Supervisor1B responded that Complainant
was the one who had said she was leaving. Complainant stated that when she makes
that decision Supervisor1B would get it in writing in advance. Supervisor1B denies
asking Complainant to resign.
Supervisor2 spoke with Supervisor1B about Complainant’s scheduling concerns.
Supervisor2 	defended 	Supervisor1B’s 	actions, 	claiming 	that 	Complainant’s
workload was small and Supervisor1B was justifiably attempting to address a
backlog. He also claims that other physicians have their day filled by someone else.
He also opined that Complainant is an angry person and is angry at every attempt to
fill her schedule, and that this “was merely, you know, the boil up of the next episode
of anger.”
MS (Medical Service) Assistant, who is responsible for patient scheduling at the
Martinsburg VAMC, testified that this kind of interference with the physicians’

2023005354	14
schedules was not the norm and actually targeted only Complainant. MS Assistant
further testified:
[Supervisor1B] seemed intent on deliberately making [Complainant’s]
life miserable. I never saw her being so unreasonable concerning any
other doctor’s schedule . . . [Supervisor1B] made other unreasonable
demands that wreaked havoc with [Complainant’s] schedule, over her
objection . . . in addition to seeing outpatients in the Respiratory
Therapy 	Department, 	[Complainant] 	was 	responsible 	for 	seeing
Inpatients and providing consults during surgical procedures. She was
never given sufficient time to see all of the patients, because despite
these other responsibilities, [Supervisor1B] demanded that I double
book [Complainant’s] outpatient schedule. As a result, she was only
allotted 10 minutes versus 30 minutes on her schedule to see patients. . .
[Supervisor1B] deliberately manipulated [Complainant’s] schedule in
what seemed to me to be a deliberate effort to make her look bad to the
patients and staff or force her to resign and leave. [Supervisor1B] never
instructed me to load up any other doctor’s schedule in this way.
Complainant asked Supervisor1B to review the VHA Directive on workload.13 No
action was taken. Supervisor2 and Supervisor1B elected to assess Complainant’s
workload on the basis of clinic appointments only, contrary to VHA Directive on
workload.
Claim 4 – June 27, 2013, Annual Leave Denial
On June 14, 2013, Complainant submitted an advance request for four days annual
leave from July 1, 2013, to July 5, 2013, to take her son to college. Complainant
asserts that her request was far enough in advance (i.e., two weeks) that there was
no need for the patient schedule to be affected. Supervisor1B claims there was
inadequate notice to adjust the patient schedule to accommodate the leave and denied
Complainant’s request.
13 This directive indicates that workload includes all patient care work, whether it is
a physical presence in clinic, calls, reviewing charts or consults, calling patients, and
conferring with doctors.

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The record shows that other physicians have been granted leave with similar periods
of notice. For example, on August 15, 2013, Coworker1 requested annual leave for
August 30, 2015, with 15 days’ notice, and was approved; and on December 27,
2012, he requested annual leave for January 13, 2013, with 18 days’ notice, and was
approved. In addition, there is no minimum amount of notice required in the
Agency’s leave policy.
MS Assistant, who is responsible for scheduling patient appointments for the
Medical Service, testified that Complainant’s leave would not have caused any
scheduling difficulties for patients. She explains:
About two weeks in advance, [Complainant] submitted her leave
request to [Supervisor1B]. Complainant informed me of her plans to
take leave so that I would not schedule patients for her during her leave.
At that point in time, I had not yet scheduled any pulmonary patients to
be seen by [Complainant] so I blocked off her schedule for the days that
she requested. When [Supervisor1B] learned about this she became
very upset and instructed me to add patients onto [Complainant’s]
schedule. When I asked [Supervisor1B] why she wanted to schedule
patients for [Complainant] knowing that she had requested to be on
leave, [Supervisor1B] said that she did not care because her leave was
not approved!!...
Supervisor1B also testified that after she denied the leave Complainant stated she
would do what she had to do and that she was having tests done for something.
Complainant denies making this statement. Supervisor1B asserts that she responded
that if she was absent without leave, she would be marked AWOL.
Claims 5 & 7 – June 27, 2013, Sick Leave Denial & Medical Inquiry
Shortly thereafter, Complainant asserts that she started to have chest pains. Over the
weekend she sought treatment from the Emergency Room for chest pain. She saw
her cardiologist on June 24, 2013, for chest pains occurring over three days. Her
doctor directed that she needed to have time off to rest due to the chest pain.
Complainant was forced to take one day off to address her chest pains.
On June 27, 2013, Complainant met with Supervisor1B to inform her of the new
developments with her health and explained that she needed time off due to the chest

2023005354	16
pains she was experiencing and would be providing a doctor’s note. According to
Complainant, Supervisor1B responded that even with a doctor’s note she would still
deny leave and mark Complainant AWOL.
On June 27, 2013, Complainant requested four days of sick leave from June 28,
2013, to July 3, 2013. Shortly, thereafter, Complainant’s doctor faxed a note dated
the same date substantiating her need for sick leave. The fax read, “Please excuse
[Complainant] from work for 4 days for medical reasons.” Supervisor1B denied the
leave and charged Complainant as AWOL. Supervisor1B admits that this is the only
time she has ever denied a request for sick leave. Supervisor1B could not recall
whether she placed anyone else on AWOL.
Supervisor1B asserts that this timeline is inaccurate, and that she received the fax
from Complainant’s doctor first, and then Complainant left saying she was having
chest pains. Supervisor1B stated she doubted the note because it came right after she
had denied the annual leave request and was for identical dates. Supervisor1B stated
she 	denied 	the 	sick 	leave 	request 	because 	there 	was 	not 	adequate 	medical
documentation, and she needed to certify it was legitimate.
Supervisor1B contacted Human Resources (HR) and informed them that she was not
satisfied with the doctor’s note. According to Supervisor1B, HR told her that she
can give the note to the Occupational Health doctor (OH Doctor) so that (OH Doctor)
can contact Complainant’s doctor for clarification. OH Doctor called Complainant’s
cardiologist (Dr. B) and told him that she is the Occupational Health doctor but Dr.
B refused to give her any information. Dr. B told OH Doctor to get a signed release
from Complainant. Supervisor1B denies instructing OH Doctor to call Dr. B. She
claims she told OH Doctor to “certify or validate it.”
On June 27, 2013, Complainant emailed Supervisor2, Supervisor1B, Director, and
her union representative and reported a hostile work environment stemming from
the leave dispute and the inappropriate medical request from Dr. B. Complainant
reported that her cardiologist reported OH Doctor’s call to her and that she had
already submitted a doctor’s note to support the sick leave request.
Claim 6 – July 2013 Increase of Workload
On July 8, 2013, after returning from leave, Complainant discovered that her
workload 	had 	significantly 	increased. 	Upon 	her 	return, 	Supervisor1B 	sent

2023005354	17
Complainant an email asking her to finish a number of jobs and provide a list of
tasks 	to 	be 	completed. 	Supervisor1B 	also 	continued 	to 	load 	patients 	to
Complainant’s schedule.
Complainant asserts that Supervisor1B was not providing her with sufficient time to
complete all the necessary tasks in addition to actual patient appointments.14
According to Complainant, the assertions of Supervisor1B and Supervisor2 that
Complainant’s workload was light, placed undue emphasis on patient appointments
and discounted all the other types of work recognized by the VHA Directive on
workloads.
Supervisor2 initially testified that Complainant’s workload was heavier upon her
return from leave because she had to reschedule all missed patients. However,
Supervisor2 also testified that the increase in Complainant’s clinic workload was
intentional, and he wanted to shift more work to Complainant because he felt she
had excessive schedule availability. Supervisor1B described it as “pretty insulting
and manipulative” for Complainant “to say her workload increased.”15
MS Assistant testified: “[Complainant] was often the first doctor there in the Medical
Service at 7am and stayed late to take care of all the veterans until as late as 9pm.
That was the norm for [Complainant].” RT2 (respiratory therapist) testified that
Complainant fulfilled her role as the only pulmonologist without substantial
assistance from Coworker1, stating: “[Coworker1] is the only other pulmonologist
at Martinsburg; [but] as the Director of the Intensive Care Unit and Sleep Medicine,
he is usually unavailable because he is wearing so many different hats…” MS
Assistant further testified that the sharp increase in Complainant’s workload in July
2013 was intentionally created and was not a result of normal patient scheduling.
On July 30, 2013, Supervisor1B informed Complainant that she is cutting down the
full time nurse practitioner’s (NP) pulmonary coverage by half and the other half of
14 At this time, the staff in the pulmonary department had been reduced to
Complainant, Coworker1 (who spent approximately 25 percent of his time in the
pulmonary department), and a nurse practitioner.
15 Supervisor2 also testified that in response to Complainant’s previous workload
complaints, he reviewed the data, and her concerns were not supported. He testified
that this data is based on appointments or procedures, or anything “capturable,” but
he admitted that this is only one of several tools to assess workload.

2023005354	18
the time NP would be assisting in nephrology. On July 31, 2013, Complainant
emailed Supervisor1B to complain about the reduction of the assistance offered to
Complainant 	by 	NP. 	Complainant 	also 	advised 	her 	that 	she 	considered
Supervisor1B’s actions as a continuation of harassment.
Shortly 	thereafter, 	Supervisor2 	emailed 	Supervisor1B, 	without 	copying
Complainant, stating: “[f]eel free to share that I fully support the decision to reduce
[NP’s] time in clinic SOLELY based upon the workload in the recent past and
reviewing clinic schedules in the upcoming month for both clinics.” However,
Supervisor2 later testified that this change was made because he found out NP was
working hard, and Complainant’s schedule was light.
Claims 8 & 12 – Failure to Correct Leave Denial and AWOL
On 	July 	12, 	2013, 	Supervisor1B 	requested 	additional 	medical 	records, 	but
Complainant 	did 	not 	comply 	because 	she 	had 	already 	provided 	medical
documentation. Supervisor1B marked Complainant AWOL for three days, resulting
in a loss of pay of $2,900, despite the availability of leave in Complainant’s leave
bank.
Complainant later sought help 	from Supervisor2 	and 	told him that 	she felt
Supervisor1B was retaliating against her. On July 24, 2013, Supervisor2 failed to
take corrective action when he was advised that Supervisor1B charged Complainant
AWOL. 	On 	that 	date, 	Supervisor1B 	emailed 	Complainant 	with 	a 	copy 	to
Supervisor2 explaining that the sick leave was not approved because the medical
documentation was not acceptable.
Contrary 	to 	the 	documentary 	evidence 	above, 	Supervisor2 	testified 	that 	his
understanding of the issue was that Complainant did not have a note releasing her to
return for duty stating: “We don’t judge the quality of the sickness. You’re out sick
leave; you’re out sick leave.” He added, “If you’re told by your doctor not to come
to work, don’t come to work.” Supervisor2 further testified: “[Complainant] sent me
an email that doesn’t charge me, demand that I do anything. Time and attendance is
a local service chief issue… [Complainant] cannot, officially charge me with a task.”
Supervisor2 also testified that he was aware that Complainant had some type of
“heart thing” and that he never asked her about it thereafter.

2023005354	19
On July 24, 2013, Complainant filed a HIPAA complaint. The report found that there
was no HIPAA violation only because Complainant’s doctor did not release any
information, however it recommended that HR or the Employee Health physician
refrain from calling employees’ personal physicians to obtain employee health
information without prior authorization from the employee.
Claim 9 – Supervisor2 Shouted and Countermanded her Medical Orders
On July 17, 2013, Complainant served as the consulting specialist for a patient and
recommended his immediate transfer to a hospital outside the VA system which had
a cardiothoracic surgeon because the closest VA facility with that capability did not
have an open bed. In response, Supervisor2 consulted with Coworker1 and denied
the immediate transfer in favor of waiting for a VA bed.
Complainant asserts that after she complained about Supervisor2’s decision, he
yelled at her, stating: “You can’t tell me what to do,” and “Do you think that you are
the only competent doctor here? You are not that good,” or words to that effect.
Supervisor2 denies yelling and making the comments alleged. Supervisor2 asserts
that he stated, “you are not the only board certified pulmonologist in the building.”
Claims 10 & 11 - Removal of Director of Pulmonary Title
On July 19, 2013, the RTs were advised that Complainant was no longer their
supervisor 	and 	that 	any 	unresolved 	concerns 	should 	be 	addressed 	with
Supervisor1B. In an email dated July 19, 2013, the then, respiratory therapist
supervisor (RT Supervisor) wrote the RTs and stated: “For staff information…Please
be aware that if you have any issues or concerns that need attention you are to come
to me, your supervisor, first. If not satisfied after that, then you are to go to my
supervisor which is now [Supervisor1B].”
Later that day, Complainant emailed Supervisor1B complaining about the removal
of duties, asserted that she had been serving in the role as director since her hiring
and reminded Supervisor1B about their own discussions regarding this topic which
supported Complainant’s position. On July 25, 2013, Supervisor1B stated: “In
response to your request for clarification, you are NOT the director of pulmonary so
please do not misrepresent yourself in this fashion.”

2023005354	20
Supervisor1B and Supervisor2 deny that Complainant ever held the role as Director
of Pulmonary because she did not perform time and attendance functions or
complete appraisals. They also cite Complainant’s SF-50, which lists her as a
“physician.” 	Supervisor2 	confirmed 	that 	he 	spoke 	with 	Supervisor1B 	about
Complainant’s assertion that she was the Director of Pulmonary and agreed with
Supervisor1B’s instructions to Complainant regarding the title.
Complainant asserts that serving as Director of Pulmonary was not an official
designation or supervisory position, but rather an organizational title used within the
facility to designate those in lead roles in sections which was routinely used for
Complainant and other physicians who led their sections but who did not serve a
formal supervisory role issuing appraisals or approving time and attendance.
According to Physician1:
At Martinsburg VAMC in my experience, having the responsibilities
and title as the Director of a branch of the Medicine Service did not
require a physician to be the supervisor of record for the assigned staff.
Many solo-physician specialists on staff there, like [Complainant] as
Director of Pulmonary, [Coworker1] as Director of the ICU, [Dr. SB]
as Director of Endoscopy, and [Dr. EB] as Chief of Neurology did not
provide administrative supervision of non-physician staff. Specifically,
they did not have responsibility for assignment of work; writing
performance 	appraisals; 	initiating 	disciplinary 	actions;
approving/disapproving 	leave 	requests; 	and 	certifying 	time 	and
attendance. 	That 	was 	the 	responsibility 	of 	Service 	Chiefs, 	like
[Supervisor1A], the Chief of Medicine, and resulted in a higher salary
tier. Being a director of a branch or department within the Medicine
Service is a coveted title and role and is reflected in a physician’s
curriculum vitae. Within VAMC the Director of a department brings
with it the authority to determine clinical guidelines, within that
specialty, by which other physicians and non-physician clinical staff
must 	adhere 	provided 	those 	guidelines 	are 	not 	in 	conflict 	with
established VAMC Regulations. Not only does it signal to all VAMC’s
but also healthcare organizations within the private sector that the
individual in that role possesses expert level knowledge and skill.

2023005354	21
Supervisor2 denied that anyone could use such a title without there being an official
position and pay increase. Supervisor2 further asserts that Complainant was the only
physician that referred to herself as Director of a given specialty department.
Supervisor1B asserts that she has never heard the term Director of Pulmonary.
The documentary evidence in the record shows that Coworker1 was referred to and
treated as the Director of ICU prior to his formal promotion and creation of that
official position in 2015. In addition, numerous witnesses contradict Supervisor1B
and Supervisor2’s testimony and confirm that the director title was in fact a title
utilized in the department. For example, RT3 testified:
[Complainant] 	was 	our 	Director 	of 	Pulmonary. 	In 	this 	capacity,
[Complainant] set medical standards, policies and procedures for the
Respiratory Therapy Department, reviewed and signed off on the
Respiratory Therapy Policy and Procedures Manual. [The] RTs were
expected to consult with [Complainant] on our treatment plans, and on
interpretation of medical tests and procedures. She performed in-service
training for the RTs and signed off on our patient records and forms
requiring a physician’s signature, like blood gas studies, CPAP sleep
apnea machine treatment plans and reports. All this changed after we
received an email from [RT Supervisor] . . . instructing me and the other
Martinsburg RTs not to go to [Complainant] for problems. We were told
to no longer refer to [Complainant] as the Director of Pulmonary… As a
result, we no longer had a Pulmonologist to oversee our work…and
consult 	with 	concerning 	our 	patients. 	. 	. 	. 	What 	happened 	to
[Complainant], removal from her position as Director of Pulmonary
without explanation should never have happened. It has been a hardship,
not having a physician over us that we can take our patients’ related
questions and concerns to.
Another Respiration Therapist (RT4) testified that Complainant was the Director of
Pulmonary and performed the duties described by RT3, and that RT Supervisor’s
announcement changed this and deprived staff of a director. RT1 also corroborated
this testimony.

2023005354	22
MS Assistant testified:
[Complainant] was known and widely referred to by staff as the
Director of Pulmonary…[Supervisor1B] instructed me not to call her
the Director of Pulmonary, even though other doctors in the Medical
Service had the title of Director, like [Coworker1], Director of the ICU,
and [Dr. SB], Director of Endoscopy. This change as it relates just to
[Complainant] made no sense to me and was never explained.
Physician1 testified:
[Complainant] was Director of Pulmonary and in this capacity, she was
the physician responsible for the Respiratory Therapy Department and
its staff of respiratory therapists. As Director of Pulmonary she was the
resident 	expert 	regarding 	clinical 	decisions 	related 	to 	pulmonary
medicine. 	To 	my 	knowledge, 	other 	doctors 	who 	knew 	her 	at
Martinsburg 	VAMC, 	including 	[Supervisor1A] 	Chief 	of 	Medical
Service and even [Supervisor2] Chief of Staff knew and referred to
[Complainant] as the Director of Pulmonary…
The business manager for the Medical Service (Business Manager) during the period
at issue, also testified that Complainant was the Director of Pulmonary and served
in that role until Supervisor1B took it away.
Complainant’s 	pay 	panel 	notes 	and 	performance 	appraisals 	indicate 	that
Complainant held a leadership role. Further, the testimonial and documentary record
establishes that Complainant repeatedly signed official documents as the “Director
of Pulmonary” or “Medical Director.”
Claim 13 – December 2014 Meeting
Complainant asserts that on December 3, 2014, Supervisor2 disrespected and
humiliated her at the quarterly medical staff meeting in front of her colleagues. The
meeting was attended by approximately 50 staff members and was an opportunity
for 	any 	doctor 	to 	raise 	concerns 	about 	various 	topics. During 	the 	meeting,
Complainant shared her opinion on clinic scheduling, staff utilization, and time
management, and Supervisor2 instructed her that the conversation needed to
continue outside the meeting. According to Complainant, Supervisor2 also told her

2023005354	23
that she will never have any control of her schedule unless the position of Chief of
Medicine becomes available and she applies for it.
Physician3 was present for this meeting and clearly recalled that Supervisor2’s
demeanor toward Complainant was “hostile” and contrasted it with Supervisor2’s
more polite and professional interaction with two surgeons involved in the same
discussion. A cardiologist (Physician4) also attended this meeting. He recalled the
discussion regarding clinic scheduling and time management. He further recalled
several individuals who spoke at the meeting on this topic before Complainant. He
did not recall anything noteworthy in Supervisor2’s response to these physicians. He
further testified that Complainant raised her hand and commented about work that
wasn’t being counted, such as phone calls, on the schedule as time and asking
whether providers could have some input into their schedule because of that.
Physician4 felt that Complainant’s comments were appropriate in the context of the
meeting. He further testified that Supervisor2 responded to Complainant “that if she
wanted to have some flexibility, that she would need to be the chief of medicine.”
Physician4 did not feel that Supervisor2 answered Complainant’s question in the
most respectful manner. Physician1 was also in attendance at this meeting and found
Supervisor2’s treatment of Complainant to be observably hostile. Physician1
testified:
I recall one medical staff meeting in particular . . in which all members
of the medical staff were strongly encouraged to attend. Topics
discussed included Outpatient Clinic hours and appropriate times to see
patients. [Complainant] asked [Supervisor2] a question pertaining to
how physician hours would be accounted for when performing such
things as e-consults when face-to-face appointments are scheduled, and
I believe Telemedicine was used as an example. Instead of answering
her question, he said loudly and, in a condescending, and rude tone,
“You must misunderstand me! Talk to your Service Chief about that!”
When a white male doctor asked essentially the same question,
[Supervisor2] answered his question respectfully and was not in any
way condescending or disrespectful in his tone or response. This is just
one specific example of [Supervisor] singling [Complainant] out that I
personally witnessed, but I heard from other physicians that there were
many meetings when he displayed similar behavior.
Supervisor2 did not provide testimony addressing this claim.

2023005354	24
CONTENTIONS ON APPEAL
With respect to the EPA claim, Complainant asserts that the AJ’s conclusion that
Coworker1 and Coworker2 did not perform “equal work” was based on superficial,
“insubstantial 	or 	minor” 	differences 	and 	is 	contradicted 	by 	the 	objective
documentary evidence and the testimony at hearing. With respect to the remaining
claims, Complainant asserts that the Agency relied solely on the evidence produced
in the EEO Report of Investigation and failed to consider the plethora of testimony
and documentary evidence compiled during the prehearing and hearing stages of this
complaint which support the finding of retaliation.
STANDARD OF REVIEW - HEARING
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will
be upheld if supported by substantial evidence in the record. Substantial evidence
is defined as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” 	Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or
not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v.
Swint, 456 U.S. 273, 293 (1982). 	An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone
of voice of a witness will be accepted unless documents or other objective evidence
so contradicts the testimony, or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at
§ VI.B. (Aug. 5, 2015).
STANDARD OF REVIEW – WITHOUT HEARING
A decision issued without hearing, pursuant to 29 C.F.R. § 1614.110(b), 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

2023005354	25
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
EPA Claim
The United States Supreme Court articulated the requirements for establishing a
prima facie case of discrimination under the EPA in Corning Glass Works v.
Brennan. 417 U.S. 188 (1974). To establish a prima facie case of a violation under
the EPA, a complainant must show that she or he received less pay than an individual
of the opposite sex for equal work, requiring equal skill, effort, and responsibility,
under similar working conditions within the same establishment. Sheppard v. EEOC,
EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003) (citing Corning Glass
Works, 417 U.S. at 195) (other citations omitted). Once the complainant has met this
burden, an employer may avoid liability only by showing that the difference in pay
is justified under one of the four affirmative defenses set forth in the EPA: (1) a
seniority system; (2) a merit system; (3) a system which measures earnings by
quantity or quality of production of work (also referred to as an incentive or
piecework system); or (4) a differential based on any other factor other than sex. Id.
The requirement of “equal work” does not mean that the jobs must be identical, but
only that they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d
429, 449 (D.C. Cir. 1976). The terms skill, effort, and responsibility, “constitute
separate tests, each of which must be met in order for the equal pay standard to
apply.” 29 C.F.R. § 1620.14(a). The factors of skill, effort, and responsibility used
to measure the equality of jobs are not precisely definable. Id. Skill includes such
things as “experience, training, education, and ability.” 29 C.F.R. § 1620.15(a).
Effort addresses the amount of “physical or mental exertion needed for the
performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree
of accountability required in the performance of the job, with emphasis on the
importance of the job obligation.” 29 C.F.R. § 1620.17(a).
An analysis of comparative skills and responsibilities is most problematic when it
involves executive or professional employees. Telford v. Dep’t. of the Army, EEOC
Appeal No. 01973892 (November 2, 1999). The Commission has looked to whether
the jobs share “a common core of tasks, i.e., whether a significant portion of the two

2023005354	26
jobs is identical.” Id. In an EPA case, the focus is not on job descriptions or titles,
but on job requirements and performance. Simkins Finucan v. U.S. Postal Ser’v.,
EEOC Appeal No. 01914057 (May 20, 1993); Richard T. Brown v. Dep’t. of Justice,
EEOC Appeal No. 01A45856 (Jan. 24, 2006); Anna Telford v. Dep’t. of the Army,
EEOC Appeal No. 01973892 (Nov. 2, 1999); Margeret M. v. Dep’t. of Veterans
Affairs, EEOC Appeal No. 0120170362 (Feb. 21, 2019).
Following a hearing, the AJ concluded that Complainant has not shown that she
received less pay than Coworker1 or Coworker2 for equal work, requiring equal
skill, effort and responsibility, under similar working conditions within the same
establishment. Specifically, the AJ noted:
While Complainant has shown that the Agency pays higher wages to
male physicians, [Coworker1 and Coworker2], she has failed to show
that she performed substantially equal work. Complainant, Coworker1
and Coworker2 were all hired as physicians, but their job duties differ.
Complainant testified that a large part of her duties involve outpatient
care 	in 	the 	Pulmonary 	Clinic 	performing 	consultations 	and
bronchoscopies, while [Coworker1 and Coworker2] work largely in the
Intensive Care Unit (ICU) with critically ill patients. Viewing the
totality of the circumstances, it is apparent that the performance of
Complainant’s job did not require equal skill, effort, or responsibility.
The 	differences 	between 	Complainant 	and 	[Coworker1 	and
Coworker2] concern many factors: 1) the number of relevant board
certifications; 	2) 	the 	degree 	of 	patient 	care 	required 	(outpatient
consultations versus inpatient critical care of ICU patients); 3) their
shifts (a regular 8:00 AM – 4:30 PM schedule Monday through Friday
versus 12‐hours per day, seven days on/seven days off); and 4) unequal
levels of responsibility.
We agree with the AJ in concluding that Complainant primarily performed work in
the pulmonary section and Coworker1 and Coworker2 primarily performed work in
the ICU. The record shows that Coworker1 and Coworker2 were hired as critical
care doctors to work in the ICU. Complainant was hired to lead the pulmonary
section. In the first few years of her tenure, Complainant covered some shifts in the
ICU. The exact frequency of ICU coverage is not clear from the record. However,
Complainant testified that 90 percent of her work was in the pulmonary section and
only 10 percent was in the ICU at that time. After a few years, she stopped

2023005354	27
performing ICU work altogether. Coworker1 spent approximately 75 percent of his
time in the ICU and approximately 25 percent of his time in pulmonary. Coworker2
spent 100 percent of his time in the ICU.
We also find that the ICU and pulmonary sections are different specialties with
different job responsibilities. The ICU duties of Coworker1 and Coworker2 require
managing life-threatening conditions, including severe infections, organ failure,
post-surgical complications, and respiratory and cardiac emergencies using several
advanced procedures which can only be performed in the ICU. Working in the ICU
also entails a high level of stress since each patient has life threatening conditions
and needs constant monitoring. ICU duties require “24/7” coverage and 12-hour
shifts, which include evening, weekends and holidays.
The record shows that Complainant was the sole pulmonologist assigned to the
pulmonary section. She performed the role of a staff pulmonologist and also led the
section, which included supervising the COPD16 clinic, the physician assistant clinic,
the home oxygen clinic, the sleep consults, and the inpatient consults. Complainant
was also involved in policy making with respect to each clinic. Complainant
provided 	guidance 	to 	the 	respiratory 	therapists. 	As 	a 	pulmonary 	physician,
Complainant treated the most stable patients primarily in an outpatient setting, but
also in various departments within the hospital setting. Complainant performed
pulmonary procedures like bronchoscopies. Complainant also trained others to
perform various procedures and assisted critical care physicians in interpreting
CPAP17 and APAP18 results.
The record shows that at the time of hiring, Complainant had a substantial amount
of administrative and leadership duties that Coworker1 and Coworker2 did not have,
which supports the finding that the positions were different. Complainant’s duties
also involved the most stable patients, under a controlled environment, with a
reliable schedule (i.e., 8am to 4:30pm, Monday through Friday, with weekends and
holidays off). In addition, the procedures that could only be performed in the ICU
were only performed by Complainant in the first couple of years and such work was
not her primary responsibility.19
16 COPD refers to Chronic Obstructive Pulmonary Disease.
17 CPAP stands for Continuous Positive Airway Pressure.
18 APAP stands for Automatic Positive Airway Pressure.
19 Complainant covered the ICU as a backup under very limited circumstances.

2023005354	28
We find that the record supports the AJ’s conclusion that such differences between
Complainant and her comparators were significant and render the work unequal with
respect to effort and responsibility. See e.g., Prewett v. Alabama Dep't of Veterans
Affs., 533 F. Supp. 2d 1160, 1167-70 (M.D. Ala. 2007) (regardless of the amount of
time each VSO spends arguing veterans cases before the Board or attending the
meetings of veterans-only organizations, the availability of a VSO to perform those
important differentiating tasks, that a CVAA undisputedly cannot perform, is
sufficient to distinguish the primary duties of the VSO and CVAA positions); Beall
v. Curtis, 603 F. Supp. 1563, 1572–73 (M.D. Ga.), aff'd, 778 F.2d 791 (11th Cir.
1985) (prima facie case of EPA not established as night call entails a 	front-line
responsibility that demands an ability to manage trauma); Goodrich v. Int’l
Brotherhood of Elec. Workers, AFL-CIO, 815 F.2d 1519, 1524 (D.C. Cir. 1987);
Hofmister v. Mississippi State Dep't of Health, 53 F. Supp. 2d 884, 890 (S.D. Miss.
1999) (prima facie case of EPA not established as comparators perform tasks that
cannot be performed by plaintiff); Baker-Notter v. Freedom Forum, Inc., No.: 18-
2499 (RC) 2019 WL 4601726 (D.D.C. Sept. 23, 2019) (a demand for availability,
particularly 24/7 availability, may be a relevant factor that makes a job "unequal");
McGee v. Virgina Dep’t, 624 F.Supp. 3d 616, 628 (E.D.Va, Aug. 30, 2022) (work
effort not substantially similar where comparator responds to emergency calls
outside of normal business hours, during weekends, or on holidays and plaintiff does
not). Accordingly, we find that the AJ correctly found that Complainant did not meet
her burden to establish a prima facie EPA violation.
Reprisal
Discrete Acts – Pay, Denial of Leave & AWOL Charge – Claims 1, 4, 7 & 8
Complainant may establish a prima facie case of reprisal by showing that: (1) she
engaged in 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). A nexus may
be shown by evidence that the adverse treatment followed the protected activity
within such a time and in such manner that a retaliatory motive may be inferred. See
Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005);
Dominica H. v. Dep't of Health and Human Ser'v., EEOC No. 0120150971 (Nov.
22, 2017).

2023005354	29
Contrary to the Agency's assertions, we find that Complainant has established a
prima facie case of reprisal with respect to the leave denials and AWOL charge.
Complainant has clearly met the first two prongs as Complainant engaged in
protected EEO activity and both Supervisor1B and Supervisor2 were aware of such
protected activity. There is no dispute that Complainant repeatedly complained of
harassment directly to Supervisor2 and Supervisor1B in the days, weeks and months
prior to the leave denials and AWOL charge. Accordingly, we find that a nexus,
based on temporal proximity, exists between the protected activity and the July 2013
adverse treatment, establishing a prima facie case of unlawful retaliation. 20
Once a prima facie case has been established, 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). Should the Agency carry its burden,
Complainant must then have an opportunity to prove by 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).
We find that the preponderance of the evidence does not support the explanations
provided 	by 	either 	Supervisor1B 	or 	Supervisor2. 	Contradictory 	documentary
evidence and testimony of numerous witnesses (including Business Manager, MS
Assistant, RTs and physicians) in the record support the conclusion that both
Supervisor1B and Supervisor2 are not credible and gave false explanations for the
alleged adverse conduct. The overwhelming evidence establishes that Supervisor1B
and Supervisor2 treated Complainant differently than similarly situated physicians
who did not engage in such protected EEO activity and their explanations for doing
so are contradicted by the weight of the evidence.
We also find that Supervisor1B and Supervisor2 held retaliatory animus toward
Complainant. The testimonial and documentary evidence supports the finding that
Supervisor1B and Supervisor2 directed hostility and disrespect toward Complainant
20 As Complainant’s initial EEO activity occurred more than a year after the hiring
salary decision was made, she cannot establish retaliation with respect to Claim 1.
We also find the record devoid of evidence of sex-based animus.

2023005354	30
with no apparent non-retaliatory explanation.21 In addition to the disrespectful and
hostile comments directed toward Complainant in email exchanges, Supervisor 1B
and Supervisor2’s testimony expressed derision regarding Complainant’s EEO
activity. For example, Supervisor2 testified that he did not feel Complainant was
harassed, but rather she was “difficult” and “unpleasant” and “constantly in conflict
with management.” He also explained his failure to follow up with her on a matter
by stating: “I would not go out of my way to end up with another 12 [EEO]
complaints.” Supervisor1B also referred to getting “slapped with an EEO.” 22
The record also indicates that Supervisor1B and Supervisor2 had a reputation for
engaging in retaliation. MS Assistant testified, “I believe that [Supervisor1B] singled
out [Complainant] for such hostile treatment because she filed complaints against
her supervisors. It was well known at Martinsburg when I left in May 2014, that if
you buck against the system they would make an example out of you.” Physician1
confirmed this, noting “I was treated in a similar hostile and disrespectful fashion by
[Supervisor2] after I filed a race discrimination/hostile work environment complaint
against him in 2014…”
Given the changing, contradicted and 	not credible explanations provided by both
Supervisor1B 	and 	Supervisor2, 	the 	evidence 	of 	hostility 	directed 	toward
Complainant and the evidence of retaliatory animus, we find pretext has been
established and conclude that the Agency engaged in unlawful retaliation when it
denied Complainant’s leave requests and charged her with AWOL in July 2013.
21 The record is devoid of evidence to corroborate Supervisor2’s assertion that
Complainant is a “difficult individual who makes a lot of people uncomfortable at
work.”
22 To the extent that Supervisor1B’s retaliatory animus is not as clear from the
evidence in the record set forth above, we find that the evidence supports the finding
that Supervisor2’s retaliatory motives were imputed to Supervisor1B due to the
substantial influence and control that Supervisor2 (i.e., the ultimate decision maker)
had over Supervisor1B. see Martin S. v. Dep’t. of the Navy EEOC Appeal No.
2024004063 (Aug. 19, 2024); Feder v. Dep't of Justice, EEOC Appeal No.
0720110014 (July 19, 2012) (appropriate under cat's paw theory, to impute a
manager's retaliatory animus to the deciding official where the manager wielded
sufficient informal power to influence the deciding official, and the deciding official
acted as a conduit for the manager's retaliatory animus related to a complainant's
reasonable accommodation).

2023005354	31
Harassment
In order to establish a claim of harassment on the basis of reprisal, Complainant must
show that: (1) she engaged in prior EEO activity; (2) she was subjected to
unwelcome conduct related to her prior EEO activity; (3) the harassment complained
of was based on prior EEO activity; (4) the harassment had the purpose or effect of
unreasonably interfering with her work performance 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).
The record shows that Supervisor2 was aware of Complainant’s protected EEO
activity, no later than early January 20, 2012, when Complainant complained about
harassment to him directly and Supervisor1B became aware of Complainant’s EEO
activity no later than March 26, 2013, when she participated in an EEO mediation
with Complainant regarding the harassment by Supervisor1A and Supervisor2. The
record also shows that Complainant emailed Supervisor1B and/or Supervisor2
complaining of harassment numerous times between January 11, 2013, and late July
2013. In mid-July 2013, Complainant initiated the instant complaint naming
Supervisor1B and Supervisor2 as responsible management officials, which has been
active and ongoing through and beyond December 3, 2014.
As noted above, Supervisor1B and Supervisor2 exhibited and directed worsening
unfavorable treatment toward Complainant between January 2013 and December
2014, including: (a) inappropriate modification of Complainant’s schedule and
increase of her workload; (b) inappropriate denial of requested sick and annual leave,
(c) an unjustified charge of AWOL which resulted in a reduction of pay; (d) removal
of Complainant’s role as Director of Pulmonary; and (e) public display of hostility
and disrespect.
The unfavorable treatment toward Complainant usually occurred within days or
weeks after Complainant complained directly to Supervisor1B and Supervisor2
about harassment. Moreover, the explanations provided by Supervisor1B and
Supervisor2 for each unfavorable event is contradicted by witness testimony and
documentary evidence. In addition, we find hostility and disrespect directed toward
Complainant for no other reason than her EEO activity which both Supervisor1B
and Supervisor2 recount with animosity. Accordingly, we find that the events raised
in the harassment claim (including the leave denial and AWOL charge) were
motivated by retaliatory animus.

2023005354	32
We find that taken together, the conduct alleged in Claims 2-13, are sufficiently
material to deter protected activity and constitute a hostile work environment.
Reprisal claims are afforded a broad view of coverage under EEO laws. Claims of
reprisal and retaliatory harassment need not impact a term, condition, or privilege of
employment. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S.
53 (2006). A complainant need only show that a materially adverse action “well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Id., 548 U.S. at 68. If the conduct would be sufficiently material to
deter protected activity in the given context, even if it were insufficiently severe or
pervasive to create a hostile work environment, there would be actionable retaliation.
EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug.
25, 2016); Drucilla Y. v. Dep’t. of the Treasury, EEOC Appeal No. 2024003738
(Apr. 14, 2025).
Given the importance of maintaining “unfettered access to [the] statutory remedial
mechanisms” in the anti-retaliation provisions, we have found a broad range of
actions to be retaliatory. See e.g., Minh W. v. Dep't of Veterans Affairs, EEOC
Appeal No. 2021004892 (Jan. 31, 2023) (retaliatory harassment found where
complainant was the subject of a fact-finding investigation); Emiko S. v. Dep’t. of
the Navy, EEOC Appeal No. 2023000873 (June 17, 2024) (retaliatory harassment
found when Complainant was verbally counseled by her commanding officer and
publicly singled out at the all-hands meeting for not advertising the vacancy at the
Coast Guard); Candice B. v. Dep’t. of Justice, EEOC Appeal No. 2023005066 (Dec.
20, 2023); Roderick P. v. United States Postal Serv., EEOC Appeal No. 2019004765
(Sept. 17, 2019) (complainant stated a claim of reprisal where management's alleged
ongoing lack of effective response to Complainant's harassment allegations is
reasonably likely to deter individuals from engaging in the EEO process); Torie A.,
v. 	Dep’t. 	of 	Agriculture, 	EEOC 	Appeal 	No. 	2023001578 	(June 	22, 	2023)
(supervisor's 	alleged 	failure 	to 	respond 	to 	Complainant's 	allegations 	of
discriminatory harassment, and failure to take steps to stop and prevent future
harassing 	actions, 	coupled 	with 	management 	official's 	retaliatory 	statement
sufficient to state a claim of a retaliatory hostile work environment).
We find that Supervisor1B and Supervisor2 demonstrated a pattern of public disdain,
disrespect, 	and 	humiliation 	by 	repeatedly 	micromanaging 	and 	loading 	up
Complainant’s 	schedule 	and 	workload; 	removing 	her 	leadership 	title; 	and
questioning her authority. Such behavior amounts to a pattern of hostility which
could 	dissuade 	a 	reasonable 	person 	from 	engaging 	in 	protected 	activity.

2023005354	33
Accordingly, we find that the preponderance of the evidence establishes a retaliatory
hostile work environment.
Here, the retaliatory harassment by Complainant’s supervisors did not include
tangible employment actions, and the Agency can raise an affirmative defense to
liability. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No.
915.002 (March 8, 1994). However, we find that the Agency failed to meet the
requirements of this defense. There is no evidence in the record that the Agency took
any action to either prevent or correct the harassment. Id. Wilma R., Complainant,
EEOC DOC 2023003301, 2024 WL 3314531, at *5 (June 26, 2024). Accordingly,
we find that preponderance of the evidence establishes that the Agency subjected
Complainant to an unlawful retaliatory hostile work environment.
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 order adopting the AJ’s decision regarding the EPA claim, REVERSE the
Agency's final decision with respect to Claims 2-13 and REMAND the matter for
further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial action:
1. Within 60 (sixty) days from the date this decision is issued, the Agency shall
pay Complainant $2,900 in backpay for loss of pay due to the July 2013
AWOL charge.
2. Within 90 (ninety) days from the date this decision is issued, the Agency shall
provide a minimum of four hours of in-person or interactive training to
Supervisor1B and Supervisor2 regarding their responsibilities under EEO
laws, particularly the anti-retaliation provisions.
3. Within 60 (sixty) days from the date this decision is issued, the Agency shall
consider taking appropriate disciplinary action against Supervisor1B and
Supervisor2. The Commission does not consider training to be disciplinary
action. The Agency shall report its decision to the Compliance Officer. If the

2023005354	34
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 the management officials
have left the Agency's employ, the Agency shall furnish documentation of
their departure dates.
1. Within sixty (60) calendar days from the date this decision is issued, the
Agency shall conduct and complete a supplemental investigation to
determine whether Complainant is entitled to compensatory damages. In
so doing, the Agency shall:
a. 	Issue a notice to Complainant of her right to submit evidence based our
guidance in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369
(Jan. 5, 1993) and request evidence from Complainant in support of
compensatory damages.23 The Notice shall provide Complainant with
thirty (30) calendar days to respond (with an option and instructions to
request 	an 	extension 	in 	the 	case 	of 	extenuating 	circumstances).
Complainant has a duty to cooperate with Agency’s investigation to
determine compensatory damages, including responding to agency
requests for documentation or completing agency forms.
b. Issue a new final agency decision (“Compensatory Damages FAD”)
based 	on 	the 	findings 	of 	the 	supplemental 	investigation. 	The
Compensatory Damages FAD shall state the amount (if any) of
compensatory damages owed to Complainant and explain how the
23 To establish entitlement to compensatory damages, the evidence must show a
causal relationship between the Agency's discriminatory action and any pecuniary
(monetary) or nonpecuniary losses/harm experienced by Complainant. For more
information on evidence to determine compensatory damages: Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch.
11, § VII (Aug. 5, 2015), available at https://www.eeoc.gov/federal/directives/md-
110_chapter_11.cfm (provides the types of compensatory damages available under
EEOC statutes and “Objective Evidence” of entitlement); and N. Thompson,
Compensatory Damages in the Federal Sector: An Overview, EEOC Digest Vol.
XVI, No. 1 (Winter 2005) available at https://www.eeoc.gov/federal/digest/xvi-
1.cfm#article (explains Carle v. Dep't of the Navy under the subsection “Proof of
Damages”).

2023005354	35
Agency determined that amount. The Compensatory Damages FAD
shall include appeal rights to the Commission.
Within sixty (60) calendar days from the date the Compensatory Damages
FAD 	is 	issued, 	the 	Agency 	shall 	pay 	Complainant 	the 	amount 	of
compensatory damages it determined are owed. If there is a dispute over
the exact amount of compensatory damages owed, the Agency shall pay
the undisputed amount to Complainant. If Complainant disagrees with the
agency’s award, they may challenge the Agency’s decision on the amount
of compensatory damages by filing an appeal of the Compensatory
Damages FAD with the Commission. Instructions on how to appeal,
including the deadline to file, will be included in the appeal rights portion
of the Compensatory Damages FAD.
4. The Agency shall post a notice in accordance with the paragraph below
entitled, “Posting Order.”
The Agency is further directed to submit a report of compliance, as provided in the
statement entitled “Implementation of the Commission's Decision.”
POSTING ORDER (G0617)
The Agency is ordered to post at the Martinsburg, West Virginia VAMC 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).

2023005354	36
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 (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.
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

2023005354	37
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 (M1125)
The Commission may, in its discretion, reconsider this appellate decision if
Complainant or the Agency submits a written request that contains arguments or
evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Sector
(OFS) within thirty (30) calendar days of receipt of this decision. 	If the party
requesting reconsideration elects to file a statement or brief in support of the request,
that 	statement 	or 	brief 	must 	be 	filed 	together 	with 	the 	request 	for
reconsideration. 	A party shall have twenty (20) calendar days from receipt of
another party’s request for reconsideration within 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).
Complainant should submit their request for reconsideration, and any statement or
brief in support of their request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx. 	Alternatively, Complainant can
submit their request and arguments to the Director, Office of Federal Sector, Equal
Employment Opportunity Commission, via regular mail addressed to P.O. Box
77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, a complainant’s
request to reconsider shall be deemed timely filed if OFS receives it by mail within
five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the
EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either
party’s request and/or statement or brief in opposition must also include proof of

2023005354	38
service on the other party, unless Complainant files their request via the EEOC
Public Portal, in which case no proof of service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s
request for reconsideration as untimely, unless extenuating circumstances prevented
the timely filing of the request. 	Any supporting documentation must be
submitted together with the 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(f).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0124)
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 their 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

2023005354	39
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:
T. Gimbrere
_____________________________ 	Acting Director's signature
T. Gimbrere, Acting Director
Office of Federal Sector
September 28, 2026
Date