Karen E. Sitton, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Appeal No. 0120090603 Agency No. 2004-0637-2008103349

Equal Employment Opportunity CommissionMay 20, 2009
0120090603 (E.E.O.C. May. 20, 2009)

0120090603

05-20-2009

Karen E. Sitton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Appeal No. 0120090603 Agency No. 2004-0637-2008103349


Karen E. Sitton,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Appeal No. 0120090603

Agency No. 2004-0637-2008103349

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dated November 12, 2008, 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. the Age Discrimination in Employment Act of 1967

(ADEA), as amended, 29 U.S.C. � 621 et seq.

Complainant is employed as a program specialist in the Cardiology

Department of the Asheville VA Medical Center. She recounts that a

patient left threatening voice mail messages with staff, and on June 20,

2007, she was asked to handle this. Complainant contacted the Patient

Advocate's office, who in turn contacted security. Complainant recounts

that an agency police report misidentified her as having reported this

patient to the police. Complainant writes the police report was released

to the patient, who then filed a complaint, and she learned about all this

on August 21, 2007. Complainant contends that this patient is mentally

unstable and potentially dangerous, and his belief of her involvement

made her extremely anxious, leading to a diagnosis of anxiety disorder

and PTSD. Complainant writes that she suffers from debilitating panic

attacks, which were initially triggered by fear of the patient and

distrust of the agency police department because it erroneously using

her name in the police report. She contends that due to this condition,

she stopped working on or about August 25, 2007. She returned part time

on February 22, 2008, and returned full time about a month later.

In her complaint, complainant alleged that she was subjected to

discrimination based on disability (post traumatic stress disorder)

and age (53) when:

1. on November 14, 2007, she was made by human resources to sign a form

authorizing the union to represent her even though she already signed

such a form on October 24, 2007,

2. an agency manager lied that he previously sent unspecified

documentation to her, and thereafter she finally received a letter by

him postmarked November 15, 2007, that was not on official letterhead,

3. by letter dated November 21, 2007, and postmarked December 11, 2007,

she was charged with absence without authorized leave (AWOL),

4. by letter dated November 21, 2007, the agency advised that her medical

documentation for the leave donor program was inadequate because it did

not indicate an ending date to her period of incapacitation or indicate

something like she was incapacitated to a specified date at which time

she would be reevaluated,

5. on different dates from 2007 to January 15, 2008, the agency denied

her requests for advanced sick and advanced annual leave, 1

6. although she was approved to be a recipient of donated leave, the

agency sent out an email on December 6, 2007, only giving potential

donors two days to donate leave,2

7. on January 11, 2008, management, referencing case law, threatened

her with termination for excessive absenteeism in an attempt to force

her to return to work before she was medically ready,

8. by letter dated January 28, 2008, management did not take action to

grant her request for reasonable accommodation that she requested on

December 12, 2007,3

9. she did not receive an out of system payment for 104 hours of advanced

sick leave until February 15, 2008, almost a month late,

10. on February 28, 2008, while working half-time, management directed

complainant to check in each day to confirm she was present for duty,4

11. on April 25, 2008, the agency issued her a letter on its denials of

her requests for advanced leave, and

12. in July 2008, the agency failed to reasonably accommodate her

disability by not taking measures to make her feel safe, and this also

constituted harassment.

On appeal, complainant argues that the FAD mischaracterized her complaint,

including listing matters intended as background on how she acquired

her anxiety disorder and PTSD as claims. After reviewing the complaint

and the record, and complainant's clarifications on appeal, we defined

the complaint as recounted above.

The FAD dismissed claims 1 through 7, and 9 through 11 on the grounds

that complainant did not initiate contact with an EEO counselor until

June 4, 2008, beyond the 45 calendar day time limit to do so.5 29

C.F.R. � 1615.105(a)(1) & .107(a)(2). It did not define claim 8

The FAD characterized claim 12 as alleging: (1) on July 16, 2008,

complainant felt unsafe in her work environment and did not open her

closed office door to her supervisor when she learned that there was a

troubled patient in the department, and (2) on July 18, 2008, complainant

received an email from her supervisor stating VA patients are eligible

for care at the VA and if she felt threatened she should contact the

Police and Security Service. Reasoning complainant was not harmed by

these matters, but feared a harm that did not occur, the FAD dismissed

them for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).

On appeal, complainant argues that the agency engaged in a pattern of

harassment, especially as it involves leave usage. She argues this

culminated in the memorandum denying her request for advanced leave on

April 25, 2008, which was issued within the 45 calendar day period of

her contact with an EEO counselor on June 4, 2008. Complainant argues

that the FAD misdefined claim 12. She argues this claim is the agency's

refusal to reasonably accommodate her by taking measures to make her

feel safe, and that this also constitutes harassment.

In opposition to complainant's appeal, the agency does not controvert

complainant's observation that for the April 25, 2008, memorandum,

the FAD miscounted the 45 calendar day time period to initiate EEO

counseling. The agency argues, however, that the memorandum was not

an adverse employment action because it merely explained the reasons

for the denials. The agency argues that claim 12, as characterized in

the FAD, fails to state a claim because it was about minor workplace

incidents with no adverse employment action against complainant.

An aggrieved person must seek EEO counseling within 45 days of the date

of the alleged discriminatory action, or in the case of a personnel

action, within 45 days of the effective date of the action. 29 C.F.R. �

1614.105(a)(1) & .107(a)(2). The FAD's dismissal of claims 1 through

though 7 and 9 through 11 for failure to timely initiate contact with

an EEO counselor is affirmed. We dismiss claim 8 for the same reason.

Complainant does not provide sufficient justification for her delay in

contacting an EEO counselor. While she contends that the agency engaged

in a pattern of harassment, especially involving leave usage; culminating

in a memorandum denying her request for advanced leave on April 25, 2008,

we disagree with her characterization of the memorandum. The memorandum

was a response to complainant for documentation on prior disapprovals

of her requests for advanced sick leave and advanced annual leave.

Complainant failed to timely initiate EEO counseling on these prior

disapprovals, which occurred from January 27 2007 and January 15, 2008.

The memorandum did not revive an otherwise untimely claim. As argued

by the agency, the April 25, 2008, memorandum was not an adverse action,

i.e., the memorandum matter fails 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).

We agree with the complainant that the FAD mischaracterized claim 12.

In support of claim 12, complainant described an incident of telling

her supervisor on July 16, 2008, that since he did not respond to her

request for identification after he knocked, she did not open her door as

the patient with the behavior problem was in her clinic area that day.

She continued that she was told by a co-worker that the above patient

was disruptive in another area of the hospital around this time and

was arrested. Complainant expressed her concern to her supervisor.

Complainant recounted that in response to this, her supervisor sent her

an email on July 18, 2008, advising that any patient eligible for care

at the VA can present himself to the hospital, and if she perceived

being threatened, to please contact the Police and Security Service.

Complainant wrote in her complaint that she is still hyper-vigilant.

She alleged therein that because the agency has not released the erroneous

police report to her, despite her past repeated requests for it to do so,

she did not know which officer to avoid, creating a fear of the entire

force. She alleged in her complaint that her personal safety concerns

were not addressed when interacting with agency police, nor with the

patient, such as giving the patient mobility/escort restrictions when

on the medical center grounds. The failure to provide complainant the

police report is part of this claim.

We find claim 12 states a harm. Complainant is alleging that the agency

is not reasonably accommodating her disability of anxiety disorder and

PTSD by taking steps to allow her to feel safe, and this constitutes

harassment. While complainant has made the same allegation in the

past, claim 12 is still timely. Because an employer has an ongoing

obligation to provide a reasonable accommodation, failure to provide such

accommodation constitutes a violation each time the employee needs it.

EEOC Compliance Manual, Threshold Issues, Section 2-IV.C.1.a. (after

example 3), page 2-73 (May 12, 2000) (available at www.eeoc.gov).

Accordingly, the FAD is affirmed in part and reversed in part. Claim 12

is remanded in accordance with the order below.

ORDER

The agency is ordered to process claim 12, as defined in this decision,

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 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 (K1208)

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 (M1208)

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), 9-18 (November 9, 1999). 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney

with the

Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

May 20, 2009

__________________

Date

1 On November 27, 2007, the agency approved 104 hours of advanced sick

leave.

2 On three separate occasions the agency approved complainant to be a

recipient of donated leave for three uninterrupted periods running from

November 9, 2007 through March 4, 2008.

3 The letter asked for medical documentation to support complainant's

request for reasonable accommodation. The letter indicated that the

request included limited contact with her supervisor; entrance/exits

near her office and hallway having key locks; being transferred; and a

reserved parking space.

4 Complainant wrote that this discontinued after she returned to

full-time. Medical documentation dated March 17, 2008, indicated

complainant was expected to return to full-time on March 24, 2008.

On appeal complainant stated that she worked part time for a month.

5 The FAD defined claim 5 as complainant learning on December 12, 2007,

that her request for advanced leave was denied. This does not impact

our analysis on timeliness.

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Office of Federal Operations

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Washington, DC 20013

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