Iris D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 25, 2019

2019002984 (E.E.O.C. Jul. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Iris D.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 2019002984

Agency No. 200P-0501-2019100599

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 7, 2019, 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. Upon review, the Commission finds that
Complainant’s complaint was improperly dismissed.

ISSUE PRESENTED

Whether the Agency properly dismissed Complainant’s complaint as untimely and failing to state
a claim, when the Complainant contacted the EEO counselor on November 11, 2018 and the date
of the discriminatory act is disputed by Complainant.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physician at the
Agency’s New Mexico Health Care System in Albuquerque, New Mexico.

Complainant first contacted an EEO counselor on November 7, 2018. On December 21, 2018,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on
the basis of sex (female).

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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The Agency defined Complainant’s claim as on September 18, 19, and 26, 2018, her second level
supervisor, and immediate supervisor, failed to take immediate corrective action to protect her
safety and ban a VA patient after she reported that the VA patient made death threats against her
on September 18, 2018.

In her complaint, Complainant detailed that on September 18, 2018, she was made aware that a
veteran, who Complainant was treating, stated he was, “… going to kill that fucking bitch
[Complainant].” On September 19, 2018, Complainant states that her Supervisor (S1) was given
instructions, by his Supervisor (S2), instructing S1 to ban the veteran who threatened to kill
Complainant from the facility. S1 stated that he disagreed with the decision to ban the veteran. On
September 26, 2018, Complainant learned that S1 did not ban the veteran in question, as S1 was
instructed to by S2, but instead advocated for that same veteran to be permitted to stay at the
facility where Complainant works. On October 1, 2018, the Director of Outpatient Mental Health
Program granted Complainant’s request to ban the patient from the clinic.

On March 7, 2019, the Agency issued a final decision dismissing Complainant’s appeal, pursuant
to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, and pursuant to 29 C.F.R.
§ 1614.107(a)(2), for failing to comply with regulatory time limits. The Agency stated that any
incidents taking place prior to September 23, 2018, fell outside of the 45-day time limit for
initiating timely contact with an EEO counselor. The Agency also stated there was no persuasive
evidence in the record that Complainant was subjected to any adverse employment action or denied
any entitlement in retaliation to a term, condition or privilege of employment as a result of the
incident she raised in her complaint. This appeal followed.

CONTENTIONS ON APPEAL

In the instant appeal, Complainant clarifies that she was not aware of the discriminatory action
until September 26, 2018. Complainant contends that S1 was given the instruction by S2 to ban
the veteran from the clinic on September 19, 2018, but she did not learn that S1 failed to do so
until September 26, 2018. In contrast, she argues that in June 2018, S1 handled a similar threat by
a patient against a male physician on the same day as the threat was made by contacting the VA
Police and having the patient held for psychiatric evaluation.

Complainant also argues against the Agency’s contention that her management’s deferral of the
decision to ban the threatening patient from the clinic did not render her sufficiently aggrieved.
Complainant states the fact that S1 acted quickly to protect Complainant’s male colleague, but not
her, has left her with tremendous anxiety and it has negatively affected her working environment,
due to stress and fear that these events could happen again. Complainant states that the veteran
was still permitted on the campus, and as a result of this situation, Complainant has felt distressed
and frightened enough to purchase a weapon and to learn self-defense. Complainant avers that she
suffers from sleep loss, anxiety, and depression, due to this matter.

The Agency submitted a brief in opposition to Complainant’s appeal in which it argued that it
properly dismissed Complainant’s complaint.
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ANALYSIS AND FINDINGS

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. The Commission has adopted a
“reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when
the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC
Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a
complainant reasonably suspects discrimination, but before all the facts that support a charge of
discrimination have become apparent. The Agency dismissed Complainant’s complaint pursuant
to 29 C.F.R. § 1614.107(a)(2), which says it shall dismiss when the complaint fails to comply with
the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c), unless the agency
extends the time limits in accordance with 29 C.F.R. § 1614.604(c), or 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.

Here, Complainant has raised a clear claim of disparate treatment discrimination when S1 treated
Complainant’s male colleague and his situation differently than Complainant’s situation. The
Agency identifies September 19, 2018 as the date when Complainant knew or should have known
that S1 was not going to ban the veteran who threatened her. However, it was not until September
26, 2018 when Complainant found out that S1 had not banned the veteran who threatened her, and
while S1 acted promptly to protect Complainant’s male colleague. On September 19, 2018,
Complainant only knew that S1 did not agree with the idea of banning the veteran from the clinic
where Complainant works. However, it was on September 26, 2018 that Complainant learned that
S1 had not actually taken any action in accordance with S2’s directive.

The Commission finds that a fair reading of the record reflects that the first two incidents, on
September 18 and 19, 2018, are connected to the action by S1 on September 26, 2018. Therefore,
while September 18 and 19, 2018 are outside of the 45-day timeframe of Complainant’s first
contact with an EEO counselor on November 7, 2018, it is the September 26, 2018 date when
Complainant became aware of S1’s actions. We therefore find her EEO Counselor contact to be
timely.

The Agency also dismissed Complainant’s complaint for failure to state a claim. The regulation
set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a
complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29
C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an
“aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
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The Agency found in its FAD that Complainant was not harmed because there was only a 12-day
period where S1 had not acted, the patient was eventually banned, and then S1 was no longer her
supervisor. We find that the Agency in essence is arguing that Complainant’s claim is moot
because her desired outcome was eventually effectuated. The regulation set forth at 29 C.F.R.
§ 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in Complainant’s complaint are moot, the factfinder must
ascertain whether (1) it can be said with assurance that there is no reasonable expectation that the
alleged violation will recur; and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979); Kuo v. Dep’t of the Navy, EEOC Request No. 05970343 (July 10, 1998).
However, when a complainant has requested compensatory damages, the complaint is not moot
unless the agency can show that the complainant is not entitled to such damages. See Ellicker v.
Department of Agriculture, EEOC Request No. 05931079 (September 22, 1994).

We note that Complainant’s formal complaint indicates that she is seeking compensatory damages.
Therefore, the Agency’s actions have not rendered Complainant’s complaint moot. Should
Complainant prevail in the complaint, the possibility of an award of compensatory damages exists,
and her complaint is not therefore moot. See Glover v. U.S. Postal Serv., EEOC Appeal No.
01930696 (Dec. 9, 1993).

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.
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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.
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.
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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 (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
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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

July 25, 2019
Date