0120143076
03-30-2016
Laurice S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Laurice S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120143076
Agency No. 200P06912014102310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 1, 2014, 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 Registered Nurse (VN-3) at the Agency's West Los Angeles Veterans Administration Medical Center ("VAMC"), in West Los Angeles, California.
On June 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity (Agency No. 200P-0691-2014102310, brought July 26, 2012 resolved via settlement agreement October 2, 2012) when:
1. Between 2011 and 2013, Complainant was subjected to disparate treatment.
2. On May 15, 2012, Complainant was harassed after filing for leave under the Family Medical Leave Act (FLMA).
3. On August 20, 2012, Complainant did not receive clinical support.
4. On December 20, 2012, Complainant was demoted "due to deficits."
5. Subsequent to RMO1's request for submission of a self-evaluation on August 3, 2013, Complainant was not issued an evaluation for FY 2012.
6. Subsequent to RMO2's request for submission of a self-evaluation on April 16, 2013, Complainant was not issued an evaluation for FY 2013.
7. Between June 2012 and August 2013, Complainant was reprised against by the actions of RMO1 and RMO2.
8. Effective January 12, 2014, Complainant was reassigned to the position of RN/Nurse Case Manager in Administrative Medicine which included a reduced salary.
Complainant alleges that two supervisors ("RMO1" and "RMO2") routinely and maliciously harassed her. In 2012, among other things, she alleges that her unit was audited more than any other unit and that she was the only Nurse Manager who was demoted due to a "staffing issue." This demotion occurred after her repeated attempts to fill vacancies, and obtain additional staff, and RMO1 "maliciously" transferred one of Complainant's subordinates while Complainant was on vacation. Complainant alleges that RMO1 and RMO2 would not grant her leave and ignored her seniority when granting requests. In 2013, Complainant submitted her self evaluation twice at RMO2's request and did not receive either of her annual reviews.
On May 3, 2013, Complainant received a "Notice of Proposed Charges" and was detailed for "safety reasons." Complainant submitted a Freedom of Information Act ("FOIA") request so she could find out and respond to the charges. Upon receipt of the file, she was surprised to find documents dating back to 2011, including a complaint that had been lodged against her. She did not agree with the complaint, but was instructed to only respond to the Notice.
On December 11, 2013 the Medical Center Director issued Complainant a letter with the subject line, "Change in Assignment and Reduction in Basic Rate of Pay." Per the letter, on January 12, 2014, Complainant was reassigned from Head Nurse/Nurse Manager (VN-3, Step 13) to a non-managerial Staff Nurse (VN-3, Step 11) which translated to a loss of approximately $20,000 in gross annual income. The letter erroneously informed Complainant that she could appeal the reassignment to the Disciplinary Appeals Board ("DAB"). On February 7, 2014, DAB denied Complainant's appeal due to lack of jurisdiction, and recommend she appeal her reassignment through the Agency's administrative grievance procedure. Complainant filed the instant complaint on March 27, 2014 and an administrative grievance on April 10, 2014.
The Agency dismissed Complainant's complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. �1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in pertinent part, 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. Under 29 C.F.R. �1614.105(a)(1) an aggrieved person must initiate contact with an EEC 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 the 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 lime limit, or for other reasons considered sufficient by the agency or Commission.
Complainant had knowledge of the time limit for contacting an EEO Counselor.
On appeal, Complainant contests the Agency's position (consistent with EEOC precedent) that due to her prior EEO activity, she was considered to have knowledge of the EEO process, including the 45 day time limit for contacting an EEO Counselor. The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011); Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. U.S. Postal Serv., EEOC Request No. 05980473(June 24, 1999) The record reflects that Complainant filed an EEO complaint an Agency EEO counselor on July 26, 2012 (resolved via settlement agreement October 2, 2012) alleging discriminatory acts that occurred in or around May and June 2012. While we sympathize with Complainant's explanation on appeal, that at the time of her first EEO activity she was "an emotional wreck full of anxiety, overwhelmed by fear;" she was still able to successfully engage in the EEO process prior to bringing the instant complaint. This is sufficient to show Complainant had constructive knowledge of the 45 day limitation period.
For Claim 8, Complainant also received express notice of the 45 day time limitation including the actual deadline to file when she received the "Change in Assignment and Reduction in Basic Rate of Pay" notice dated December 11, 2013, referenced above. Page 2 provided:
If you believe that this personnel action is based on discrimination because of your race, color, religion, sex, national origin, age, or handicap, you may file a complaint of discrimination with VA in accordance with Office of Resolution Management (ORM) discrimination complaint procedures. Should you elect to do so, you may appeal this action by contacting ORM at 1-888-737-3361 within 45 calendar days of the date you receive this letter. (emphasis original)
The record reflects, and Complainant confirmed that she received the letter on December 17, 2013. We find Complainant had knowledge that she had to contact an EEO counselor no later than January 13, 2014 (the 45th day, January 11, 2014, fell on a Saturday) if she wanted being a claim of discrimination concerning her reassignment.2
Reasonable suspicion of discrimination existed for more than 45 days prior to EEO contact.
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 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. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr.19, 2012)) The Commission has consistently held that a complainant must act with due diligence in the pursuit of their claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (Nov. 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting� an EEO Counselor); O'Dell v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990) The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his or her claim.
Claims 1, 2, 3, 4, and 7 in the instant complaint all allege discriminatory acts that occurred either around the same time of the alleged discriminatory acts in Complainant's prior EEO claim, or during her engagement in the EEO process and resolution of that EEO claim. Complainant explicitly links the instant complaint to her prior EEO activity by identifying it as the basis of her retaliation claim. Additionally, both of Complainant's complaints are (in part) based on racial discrimination. We find the timing and common basis for discrimination sufficient evidence that reasonable suspicion discrimination existed on or around the time the alleged acts occurred.
Reasonable suspicion of discrimination also existed on or around the time the alleged discriminatory actions in Claims 5 and 6, which took place during or around the time of ongoing discrimination described in Claims 1 and 7. In addition to sharing the same bases of discrimination, Claims 5 and 6 name the same RMOs who Complainant alleges regularly discriminated against her for over a year in Claim 7. Complainant provides numerous specific details in the record that also reference RMO1 and RMO2 supporting her claims. Based on Complainant's experiences with RMO1 and RMO2 prior and during the discriminatory actions described in Claims 5 and 6, we find reasonable suspicion of discrimination existed when they occurred, over a year before Complainant initiated EEO contact.
Alternatively, Complainant is time barred from further pursuing Claims 1 through 7 under the doctrine of latches.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 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.
2 Even if Complainant calculated the 45 day limitation period based on the effective date of the personnel action (January 12, 2014), in accordance with EEOC Regulation 29 C.F.R. �1614.105(a)(1), the EEO contact deadline for Claim 8 would fall on February 26, 2014, which is still prior to Complainant's EEO contact date.
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