0120181945
08-31-2018
Adah T,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adah T,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181945
Agency No. 200I06752018102682
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 7, 2018, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physical Therapist, 11-5, at the Agency's Orlando VA Medical Center facility in Orlando, Florida.
Complainant made EEO contact on February 27, 2018. On April 3, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the basis of sex (female/ pregnancy) when:
1. On July 6, 2017, her Supervisor (male) stated to Complainant, "these complications should be over by now, in you first trimester. I don't get why you are still having problems, or words to that effect;"
2. On August 9, 2017, Complainant was not accommodated when she was not allowed a 10-minute break between patients; and
3. On October 4, 2017, the Supervisor did not assist Complainant with a patient who was previously identified as having aggressive tendencies.
Complainant acknowledged that she was able to report to work throughout her pregnancy and then took time to recover after her delivery. Complainant stated the reason that she did not contact a Counselor within 45 days of the discrimination was because she was incapacitated due to complications during her pregnancy and her need to recover after the delivery.
Agency Decision
The Agency dismissed the complaint for untimely EEO contact. The Agency highlighted the record that showed that the Agency had posted, at three different locations at the facility, EEO related posters informing employees of their rights and obligations. Next, the Agency noted that she had worked on a consistent basis from May 1, 2017 to October 6, 2017. The Agency reasoned that Complainant's time and attendance records reflected that Complainant was well enough to report to work during the period in which each of the alleged incidents occurred. The Agency concluded, therefore, that Complainant failed to show that she was so physically or emotionally incapacitated that she was unable to meet the deadline for making timely contact with an EEO Counselor.
CONTENTIONS ON APPEAL
On appeal, Complainant states that the final decision was based solely on the fact that she was unable to contact an EEO Counselor until past the 45-day deadline. She argues that the Supervisory Rehab Coordinator did not meet Complainant's reasonable accommodations needs and created a hostile work environment, for which the Supervisory Rehab Coordinator should be held accountable.2
ANALYSIS AND FINDINGS
Untimely EEO Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
In this case, the record discloses that the first alleged discriminatory event occurred on July 6, 2017, but Complainant did not initiate contact with an EEO Counselor until February 27, 2018, which is beyond the forty-five (45) day limitation period. Even if we used the last alleged event, that occurred on October 4, 2017, her EEO contact was still untimely.
The record shows that Complainant worked during the period at issue. Consequently, we are not persuaded that she was too incapacitated to contact an EEO Counselor. While we understand Complainant's situation and desire to avoid more stress, we find Complainant has presented no persuasive arguments warranting an extension of the time limit for initiating EEO Counselor contact.
Upon review, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if Complainant or the Agency submits a written request containing arguments or evidence which tends to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 31, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant is arguing the merits of her claims. In order for us to reach the merits of her claim, however, all of the procedural prerequisites would have had to be met.
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