EEOC Appeal No. 0120180977
04-05-2018
Maricruz Y. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maricruz Y,1
Complainant,
v.
Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs
(Veterans Benefits Administration),
Agency.
Appeal No. 0120180977
Agency No. 200H-0310-2017104555
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 22, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Veterans Service Representative at the Agency's facility in Philadelphia, Pennsylvania. On November 27, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and age.
In its final decision, dated December 22, 2017, the Agency determined that Complainant's complaint was comprised of the following claims:
1. In the Spring 2012, upon becoming aware that Complainant applied for the position of Overseas Military Service Coordinator complainant's supervisor [at the time],...questioned Complainant's health and subsequently Complainant was not selected for the position.
2. In the Spring 2013, Complainant's supervisor [at the time] ... rated Complainant [threes and fours] on the Supervisor Recommendation for the position of Overseas Military Service Coordinator and after Complainant discussed the rating with his immediate supervisor... [the supervisor] questioned Complainant's health, subsequently Complainant was not selected for the position.
3. In March 2017, Complainant was placed on a Performance Improvement Plan (PIP).
4. On August 3, 2017, QRT supervisor...sent an email to all coaches and peers divulging deficiencies in Complainant's work and that Complainant was under review.
The Agency dismissed claims (1) and (2) for untimely EEO Counselor contact. The Agency reasoned that these events occurred in 2012 and 2013, but Complainant did not initiate EEO contact until August 14, 2017, outside of the applicable time period. The Agency further found that these claims were barred by the doctrine of laches.
The Agency dismissed incidents (3) and (4) for failure to state a claim. The Agency reasoned the alleged incidents are not sufficiently severe or pervasive to set forth an actionable claim of harassment.
The instant appeal followed. On appeal, Complainant requests that we reverse the Agency's final decision dismissing her complaint. Complainant states that the Agency violated her privacy.
ANALYSIS AND FINDINGS
We find that the Agency properly dismissed claims (1) and (2) for untimely EEO Counselor contact. 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.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
We find that Complainant should have reasonably suspected discrimination at the time of the alleged incidents in 2012 and 2013. Thus, Complainant's August 14, 2017 EEO contact is outside the applicable time period for claims (1) and (2). Complainant has not presented sufficient justification for waiving the applicable time limit.
We further find that claims (1) and (2) are barred by the doctrine of laches. In the instant matter, Complainant did not initiate EEO contact until four to five years after the alleged discriminatory acts set forth in claims (1) and (2). Thus, these claims are barred by the doctrine of laches.2
We further find that the Agency improperly dismissed incidents (3) and (4) for failure to state a claim. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:" and the complainant subjectively perceives it as such. Harris, supra at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainant cannot prove a set of facts in support of the claim which would entitle the complainant to relief. The trier of fact must consider all of the alleged harassing incidents and remarks, and considering them together in the light most favorable to the complainant, determine whether they are sufficient to state a claim. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
In the instant matter, Complainant is alleging that she was placed on a PIP and that an Agency official sent an email to Complainant's entire facility listing various employees that were on a PIP, which included Complainant. We find that the alleged incidents when considered collectively, are sufficiently severe or pervasive to set forth an actionable claim of harassment.
Accordingly, we AFFIRM the Agency's final decision dismissing claims (1) and (2). However, we REVERSE the Agency's dismissal of incidents (3) and (4), defined herein, as a hostile work environment claim, and we REMAND these matters to the Agency for further processing in accordance with the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims (claims (3) and (4)) defined herein as a hostile work environment claim) 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.
A copy of the Agency's letter of acknowledgement 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (T0610)
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 (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
April 5, 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 Because the alleged incidents set forth in (1) and (2) occurred several years before the incidents in set forth in (3) and (4), we do not find that claims (1) and (2) are part of the same ongoing hostile work environment claim. Thus, claims (1) and (2) are not considered in our analysis of Complainant's hostile work environment claim.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180977
6
0120180977