2023005354•EEOC Appeal 2023005354
Texto completo
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.
2023005354 2 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);
2023005354 3 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
2023005354 4 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.
2023005354 5 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.
2023005354 6 [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.
2023005354 7 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.”
2023005354 9 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.
2023005354 10 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.
2023005354 11 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.
2023005354 12 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.
2023005354 13 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.
2023005354 15 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
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