0120180035
02-15-2018
Jenna P,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
Jenna P,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120180035
Agency No. 200J05372017102092
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 5, 2017, 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 Respiratory Therapist at the Agency's Medical Center facility in Chicago, Illinois.
On March 9, 2017, Complainant contacted the EEO Counselor alleging discrimination. Complainant asserted that she was reassigned to work the night shift in December 2014 when she had been approved for leave under the Family Medical Leave Act in order to take care of her elderly mother. Complainant asserted that she was denied FMLA and she had to remain at home in order to provide her mother with 24-hour care. As such, Complainant had been absent from her position since January 5, 2015. Complainant asserted that the supervisor (Supervisor) made decisions based on her personal relationships. In July 2016, Complainant contacted the Union regarding an opening on the morning shift wishing to be placed into that position.
When the matter could not be resolved informally, on June 15, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when she was subjected to harassment. In support of her claim, Complainant stated the following:
1. From 2014 to January 16, 2017, She worked Thanksgiving, Christmas, took my mother to a funeral, worked New Year's Day, and scheduled for Martin Luther King holiday. Management refused to change her schedule. The next holiday is in February and Management gives it to someone they like and those they don't like, have to work the holidays.
2. She has been subjected to disparate treatment since 2011.
3. In August 2016, Complainant sought emergency leave before her shift.
4. Favored employees are given better schedules and granted their requests for leave.
On August 1, 2017, the Agency mailed Complainant a request for additional information within 15 calendar days. The information sought by the Agency was to clarify Complainant's claim of discrimination and/or harassment. Complainant failed to respond to the Agency's request.
In its final decision dated September 5, 2017, the Agency defined Complainant's complaint as a claim of discrimination because she was denied FMLA in 2015. The Agency dismissed such a claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant's claim of denial of FMLA constituted a collateral attack on the FMLA process. Further, the Agency noted that it had requested additional information from Complainant which she failed to provide. The Agency cautioned Complainant that failure to respond within 15-calendar days may result in dismissal of the complaint as a whole. Based on Complainant's failure to cooperate, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7). Further, to the extent Complainant alleged that she was subjected to discrimination and harassment from November 2014 to January 16, 2017, regarding assignments and leave, the Agency found that Complainant failed to raise these events in a timely manner with the EEO Counselor. The Agency noted that Complainant contacted the EEO Counselor on March 9, 2017, which was beyond the 45-day time limit. Therefore, the Agency also dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
This appeal followed. The Agency responded to the appeal asking that the Commission affirm its decision dismissing the complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that 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 �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
A fair reading of the complaint at hand indicates that Complainant alleged that she was subjected to disparate treatment and harassment. In support of her claim of harassment, Complainant provided a series of events from 2014 through Martin Luther King holiday which was January 16, 2017. Complainant contacted the EEO Counselor on March 9, 2017. We note that Complainant's contact occurred beyond the 45-day time limit. As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.2
CONCLUSION
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 decision.
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 15, 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 Since the Commission has affirmed the Agency's dismissals of the complaint as a whole, we need not address the Agency's alternative bases for the dismissals.
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