0120160482
03-15-2016
Nenita S.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nenita S.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160482
Agency No. 2003-0520-2015103516
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 20, 2015, 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.
BACKGROUND
On October 9, 2014, Complainant was hired as a Registered Nurse at the Agency's Gulf Coast Veterans Health System in Biloxi, Mississippi, subject to a two-year probationary period.
On May 20, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On August 14, 2015, Complainant filed the instant formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when:
on August 15, 2014, she was terminated from her Registered Nurse position during her probationary period.
In its October 20, 2015 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on May 20, 2015, which was more than forty-five days after the alleged discriminatory event occurred. The Agency noted in the EEO Counselor's Report, the EEO Counselor stated that Complainant told him that her EEO contact was untimely because Complainant had attempted to resolve her concerns through the union.
Further, the Agency stated that Complainant attended the Prevention of Workplace Harassment/No FEAR training on April 25, 2014 in which the training provided all participants, including Complainant, information about the requisite 45-day requirement for initiating EEO contact.
Complainant, on appeal, does not dispute the Agency's dismissal of the instant complaint for untimely EEO Counselor contact. However, Complainant argued that because her home was damaged as a result of Hurricane Isaac in September 2012, she was "granted monetary assistant by FEMA/MEMA to move out of our damaged and unhealthy home, causing medical issues for my husband and for me then to have to endure an insult of having a 2 year work probationary period, is even more of insulting, because time was missed from work, related to as mentioned above, appointments with FEMA/MEMA, sickness from our damaged molded flooded home...I certainly didn't have a choice but to miss time off from my new job. I couldn't come to work sick and subject anyone to my respiratory illnesses."
The instant appeal followed.
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 personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory event occurred on August 15, 2014. However, Complainant did not initiate contact with an EEO Counselor until May 20, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor.
With respect to Complainant's claim that despite her due diligence, she was prevented from pursing the EEO process due to her medical conditions, we observe that Complainant stated that in September, she faced various health issues as a result of her home being damaged by Hurricane Isaac which caused her to miss work. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. USPS, EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record, such as medical documentation, supporting Complainant's assertion that she was so incapacitated during the applicable forty-five day period as to prevent her from timely initiating EEO Counselor contact.
Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).
Complainant, therefore, has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the instant complaint for untimely EEO Counselor contact.
The Agency's final decision dismissing the formal complaint for the reason stated herein 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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 15, 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.
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