0120152925
02-04-2016
Celine D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Celine D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152925
Agency No. 200H0500201510225
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated August 3, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in a position unspecified in the record at the Agency's Medical Center facility in Albany, New York. On June 17, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (PTSD) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On January 12, 2015, Complainant became aware that on or about October 27, 28, 29, and 30, 2014, three nursing supervisors (NS1, 2, & 3) accessed Complainant's medical records;
2. In April 2015, May 12, 2015, and mid-May 2015, Complainant's Supervisor, (NS4) made allegedly harassing comments and required that Complainant notify her when leaving the unit, and on May 23-24, 2015, NS4 charged Complainant with being absent without leave (AWOL);
3. On or about June 1, 2015, Complainant learned that NS4 had approached a staff nurse and encouraged him to falsely accuse Complainant of being intimidating and a bully;
4. On or about early June 2015, NS4 changed Complainant's weekend work schedule;
5. On or about June 9, 2015, after never being denied time off, NS4 informed Complainant that her previously approved leave would likely not be granted;
6. On or about June 9, 2015, NS4 stated to Complainant in a condescending tone in the presence of peers, "Hi (Complainant's name), how are you (Complainant's name), thanks for showing up to work today!";
7. On or about June 9, 2015, NS4 issued the complainant a memorandum placing her on Sick Leave Restriction; and
8. On or about June 15, 2015, NS4 issued Complainant a memorandum changing her working conditions and schedule from twelve hour shifts to eight hour shifts.
The Agency dismissed Claim No. 1 for untimely EEO Counselor contact and Claim No. 2 for raising a matter that was not raised before the Counselor and was not like or related to matters raised before the Counselor. The Agency accepted the remaining claims and those claims are currently still under investigation by the Agency. However, rather than inform Complainant that she could appeal the dismissal of Claims 1 & 2 following the investigation and after the Agency had issued a decision on the merits of the remaining claims, the Agency instead provided Complainant with appeal rights to this Commission and Complainant subsequently appealed the August 2015 FAD dismissing Claims 1 & 2. Because Complainant received appeal rights from the Agency, we shall accept this appeal and shall address solely the dismissal of Claims 1 & 2. The remaining claims may be addressed once the Agency issues a FAD addressing those claims and Complainant appeals such a FAD to this Commission.
ANALYSIS AND FINDINGS
With regard to Claim No. 1, we note that EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The record discloses that Complainant contacted the facility's EEO Manager (EM) on January 27, 2015. The FAD notes that Complainant argued that she did not develop "reasonable suspicion" about the incidents alleged in Claim No. 1 until January 12, 2015 and hence her January 27 contact with EM was timely. The Agency has not disputed Complainant's "reasonable suspicion" argument and we therefore shall not address it on appeal. Instead, the Agency argues that EM notified Complainant that he was not the appropriate person to contact and that if she wished to initiate an EEO Complaint, she should instead contact the Agency's Office of Resolution Management (ORM). The Agency further found that Complainant did not do so in a timely manner. Specifically, the FAD found that Complainant notified EM via email, on February 3, 2015, that she had called the ORM telephone number provided by EM and had left a message on an answering machine. The FAD next found that ORM received a fax from Complainant on March 6, 2015 indicating that she wished to initiate a formal complaint. The FAD further found that there was no record of Complainant's February 3 voicemail to ORM and that Complainant's official date of initial EEO contact would therefore be deemed to be March 6. Because Complainant learned of the discriminatory act in claim No. 1 on January 12, 2015 but did not successfully contact ORM until March 6, which is beyond the forty-five (45) day limitation period, her initial contact was deemed untimely and the claim was dismissed.
The Commission has long held that for purposes of timeliness, contact with an agency official who is "logically connected with the EEO process" is deemed a Counselor contact. Jones v. Department of the Army, EEOC Request No. 05900435 (Sept. 7, 1990); see Kemer v. General Services Administration, EEOC Request No. 05910779 (Dec. 30, 1991). Complainant argues that she contacted EM in a timely manner and that EM is logically connected with the EEO process, so her EEO contact was timely. The FAD found that "since ORM's inception in 1997, facility EEO program managers have no involvement whatsoever in EEO complaint processing as these responsibilities reside solely with ORM." On appeal, the Agency further argues that the "logically connected" standard should not apply to Complainant because she was represented by a law firm "which is experienced in federal-sector EEO complaints." We find such an argument unpersuasive, however, since an attorney experienced in federal sector complaints would know that the regulations state that complainants should contact an EEO Counselor, not the Agency ORM. Furthermore, an attorney experienced in federal sector EEO complaints would also know the "logically connected" standard, and while it may be true that, in fact, EEO Managers for this particular Agency "have no involvement whatsoever in EEO complaint processing," we do not find Complainant's or her attorney's belief that an EEO Manager is someone logically connected to EEO processing to have been so unreasonable as to justify dismissing the complaint, albeit that the belief subsequently turned out to have been a mistaken one.
The Agency next argues that it has no record of Complainant's February 3, 2015 telephone message to ORM and that Complainant should not have waited from February 3 to March 6 before checking to find out the status of her informal complaint. The Agency contends that Complainant was provided sufficient information by EM regarding how to contact ORM so that Complainant's failure to successfully contact ORM until March 6 means that her claim should fail. On appeal, however, Complainant points out that the materials submitted by EM included just a telephone number for ORM, not a physical address, email address, or fax number. A review of the record confirms that the materials provided to Complainant by EM state "You must initiate contact with an EEO Counselor within 45 days of the alleged act of discrimination by calling [telephone number provided] or visiting your local ORM field office." Complaint File, Tab 11. Thus, using the information provided to her by EM, Complainant is left with no method of proving that she contacted ORM on a specific date, which would not be the case if, for example, email or a fax number were used. Despite the difficulty Complainant faces in proving when she contacted ORM, we further note that Complainant has nevertheless provided strong evidence that she did in fact contact ORM on February 3 when she sent EM an email on that date notifying him what she had done that same day. See Complainant's Appeal Brief, Exhibit 3. EM confirms that Complainant contacted him on that date. See Complaint File, Tab 11. Considering that this email was sent before Complainant had any reason to believe her claim would be dismissed, we find it sufficient to establish her claim that she contacted ORM via telephone on February 3, 2015 and not March 6, 2015, making her contact timely.
With regard to Claim No. 2, the FAD found that Complainant "should have raised the above matters involving actions of management from April to May 24, 2015, during the open informal counseling period." We note that 29 C.F.R. � 1614.107(a)(2) states that an Agency "shall dismiss a complaint that . . . raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor." We note that Complainant raised the matter regarding three supervisors allegedly accessing Complainant's private medical information before the Counselor, while Claim No. 2 involved Complainant's supervisor (not the same individual as any of the three named in Claim No. 1) making harassing comments and charging Complainant with being AWOL. Because the two claims involved different individuals and different actions, we do not find the matters raised in Claim No. 2 to be "like or related" to the matter raised before the Counselor. Furthermore, Complainant does not deny that the matters raised in Claim No. 2 were not raised before the Counselor. We therefore find that the Agency correctly dismissed Claim No. 2 pursuant to � 1614.107(a)(2).
CONCLUSION
We AFFIRM the FAD in part and REVERSE in part, and we REMAND this case to the Agency to take remedial action in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
February 4, 2016
__________________
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.
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