Aliza C,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 9, 2018
0120172821 (E.E.O.C. Feb. 9, 2018)

0120172821

02-09-2018

Aliza C,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Aliza C,1

Complainant,

v.

Dr. David J. Shulkin,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120172821

Agency No. 200J-06762017101972

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 4, 2017, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nursing Assistant at an Agency Medical Center in Tomah, Wisconsin. On September 9, 2016, the Agency issued Complainant a memorandum temporarily reassigning her to its Staffing Office effective immediately and to its Food Service effective September 12, 2016. The Agency cited "potential patient care concerns" as the reason for the reassignment.

On January 24, 2017, Complainant filed a third step grievance regarding a "False [Absence without Leave (AWOL)] Designation of [Complainant]." In the grievance, Complainant stated that, on October 20, 2016, she injured herself after mopping a 2,000-square foot area consistently for five weeks. Complainant received light duty recommendations for two weeks from Employee Health. Complainant stated that she informed her Food Services Supervisor (S1), who stated that he did not have work that fit her limitations. Complainant stated that she returned the next day to complete workers' compensation forms, but had technical difficulties completing her CA-1 form. Complainant stated S1 told her she could go home and the matter would be handled. Complainant stated that she also contacted her Nursing Supervisor (S2) for assistance, to no avail. S2 later informed Complainant that the Agency charged her as AWOL for October 24, 2016 through October 28, 2016. In the grievance, Complainant stated that it was outrageous that the Agency wanted to charge her as AWOL. She requested removal of AWOL status from her records and payment of 40 hours of continuation of pay (COP).

In a memorandum, dated February 9, 2017, the Associate Director for Patient Care Services (S3) denied Complainant's grievance, stating that the Department of Labor is the entity that reviews and renders decisions on COP. S3 also stated that the Agency would rescind the AWOL status from Complainant's record and allow her to use her leave of choice for the applicable period.

On February 28, 2017,2 Complainant initiated EEO contact alleging that the Agency harassed her based on disability (hip injury) and age (63) when (1) on September 5, 2016, it falsely accused Complainant of patient abuse and, on September 9, 2016, subjected her to an investigation of said accusation, (2) effective September 9, 2016, it temporarily reassigned Complainant out of patient care duties, which impacted her tour of duty, pay, and overtime opportunities, (3) on October 20, 2016, it denied Complainant a light duty assignment, and (4) on October 27, 2016, it charged Complainant with 40 hours AWOL. Subsequently, on June 5, 2017, Complainant filed a formal complaint reiterating her claim.

On August 4, 2017, the Agency issued a final decision dismissing Complainant's complaint. The Agency dismissed claims (1) and (2) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO contact, and dismissed claims (3) and (4) pursuant to 29 C.F.R. � 1614.107(a)(4) for filing a union grievance on the same matters prior to filing an EEO complaint3. The instant appeal from Complainant followed. On appeal, Complainant stated that her EEO contact was not untimely and her grievance did not deal with the same issue as the instant complaint.

ANALYSIS AND FINDINGS

Matters Raised in Negotiated Grievance Procedure

EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides for an agency dismissal of a formal complaint where a complainant has already raised the mater in a negotiated grievance procedure that permits allegations of discrimination.

Complainant's grievance and the subsequently filed instant formal complaint address the same matters - denial of light duty and the resulting AWOL status. Moreover, the relevant collective bargaining agreement allows for claims of discrimination to be raised in the grievance process.

Untimely EEO contact

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of an Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action.

Here, the Agency properly dismissed Complainant's complaint on the ground of untimely EEO Counselor contact. The most recent alleged discriminatory event occurred on October 28, 2016 (the last day Complainant was charged AWOL). However, Complainant did not initiate contact with an EEO Counselor until February 28, 2017, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor. The record shows that Complainant attempted to process her concerns through other internal Agency forums prior to initiating EEO contact.

On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).

CONCLUSION

Based on the above, we AFFIRM the final agency 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 the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or

2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (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

February 9, 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 In an email, dated May 26, 2017, Complainant's attorney representative stated that Complainant initiated EEO contact on February 28 because she wanted "to see if this situation could be addressed through regular disciplinary processes and to gather facts as to what management's investigatory file consisted of, . . . [w]hen management's evidence and conclusions became clearer, this matter was filed within 45 days accordingly."

3 Article 43, � 3.A of the Master Agreement between the Department of Veterans Affairs and the American Federation of Government Employees (2011), in pertinent part, provides the following:

A. As provided for in 5 USC 7121, the following actions may be filed either under the statutory procedure or the negotiated grievance procedure but not both:

1. Actions based on unsatisfactory performance (5 USC 4303),

2. Adverse Actions (5 USC 7512),

3. Discrimination (5 USC 2302(b)(1)). . . .

C. An employee shall be deemed to have exercised his/her option under this section when he/she timely initiates an action under the applicable statutory procedure or files a timely grievance in writing under the negotiated grievance procedure, whichever event occurs first.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120172821

2

0120172821