[Redacted], Annice F., 1 Complainant,v.Dat Tran, Acting Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2020004519 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Annice F.,1 Complainant, v. Dat Tran, Acting Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2020004519 Agency No. 2004-0659-2020102945 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 9, 2020, 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 Compensated Work Therapy (CWT) Coordinator, GS-12, at the Agency’s VA Medical Center (VAMC) in Salisbury, North Carolina. On March 13, 2020, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency discriminated against her on the basis of race (African-American), sex (female), and reprisal for prior EEO activity (opposition activity2) when: 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 Complainant began employment with the Agency in January 2020. Complainant stated, as a new supervisor, she informed CWT management that two staff members, who are Caucasian, were years behind in completing their work and were neglecting veterans. Complainant alleged that management failed to correct the staff members’ negligence but disciplined her instead for reporting the behavior of persons outside of her protected class. 2020004519 2 (1) on March 12, 2020, the Chief of Mental Health and Behavioral Services (Chief1) detailed Complainant to the Salisbury Medical Center pending the outcome of a fact-finding investigation about which she had no knowledge; (2) on March 18, 2020, Chief1 issued Complainant a written counseling for “failure in carrying out instructions;” and (3) in February 2020, an Administrative Officer and other staff subjected Complainant to hostile work environment harassment through belittling her qualifications for her position, criticizing her character, questioning her whereabouts in the facility and following her around, and stating that management was removing her and employees had filed an EEO complaint against her. By email dated April 15, 2020, the assigned EEO Counselor sent Complainant a Notice of Right to File a Discrimination Complaint (NORF). The NORF stated, “If you decide to file a formal complaint, you must do so WITHIN FIFTEEN CALENDAR DAYS OF RECEIPT OF THIS NOTICE.” The record shows that the email was “delivered” on April 15, 2020 at 11:26 a.m. On May 27, 2020, Complainant filed a formal EEO complaint reiterating the above claim. Complainant apologized for filing her complaint beyond the 15-day statutory timeframe, stating she “was overwhelmed with grief and stress” because her brother passed away in early April 2020, and her sister was diagnosed with cancer in November 2019, and she was on two months of leave assisting her sister’s family with daily activities and care. Complainant stated that her sister experienced additional medical problems in early to mid-May 2020. In a final decision dated July 9, 2020, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2) for an untimely formal complaint. The Agency stated that Complainant received the NORF on April 15 and filed her formal complaint 27 days beyond the 15-day statutory deadline of April 30. The Agency stated that the dates Complainant cited to excuse her delay occurred prior to issuance of the NORF. The instant appeal from Complainant followed. On appeal, Complainant stated that her eldest brother died on April 3, 2020, a second brother died on July 9, 2020, and her sister died on July 17, 2020 after battling cancer since November 2019. Complainant stated that her sister was in and out of the hospital for weeks at a time in 2020. Complainant stated that her sister required care and her sister’s children (18, 17, 13, and 10) required assistance with daily activities (e.g., grocery shopping, paying bills, meeting with teachers, school assignments). Complainant stated, due to COVID-19, she had to travel to Florida to pack up the 18 year old who was away at college and whose campus closed. She stated she had to travel to Georgia weekly to perform household duties and to assist the younger children with remote learning and other impacts of COVID-19. 2020004519 3 Complainant stated, “I had to focus on my sister’s health care as well as provide emotional/financial support to my niece and nephews.” Separately, Complainant alleged additional incidents of harassment (including a demotion and change of assignment). ANALYSIS AND FINDINGS A complainant must file their formal complaint within fifteen (15) calendar days of receiving the right to do so. 29 C.F.R. § 1614.106. The regulations require the dismissal of complaints that fail to comply with this time limit. 29 C.F.R. § 1614.107(a)(2). Nonetheless, this time limit is subject to waiver, estoppel, and equitable tolling. 29 C.F.R. § 1614.604(c). Generally, the Commission has refused to waive the time limits for a complainant dealing with the death of a relative. See Ponte v. Dep’t of the Treasury, EEOC Appeal No. 01A00899 (May 16, 2000) (death of nephew, in addition to inability to hire attorney, does not justify untimeliness); Smith v. United States Postal Service, EEOC Appeal No. 01965183 (July 10, 1997) (death of aunt not sufficient to extend time limit). However, the Commission has found that the death of a close relative may be sufficient reason to waive the time limit. Kobel v. Dep’t of the Treasury, EEOC Appeal No. 01A01996 (June 14, 2000) (death of mother during fifteen day period, where claimant filed shortly thereafter, enough to waive time limit). The circumstances presented here warrant an extension of the time for filing a formal complaint. Complainant stated that she lost three siblings between April 3, 2020 and July 17, 2020, and, that between November 2019 and July 17, 2020, she assisted with the care of her terminally-ill sister and the sister’s four children who were 18 and younger. In addition, Complainant stated that the circumstances were further complicated by COVID-19 closures and societal changes, and the fact that her sister lived in Georgia and she lived in North Carolina. We find that Complainant dealt with the death of three close relatives and provided care for at least one over a nine-month period about the time her formal complaint was due. The record shows that Complainant’s grief and responsibilities were compounded by the specific circumstances herein. Separately, we note, on appeal, Complainant alleged additional adverse Agency actions since filing the instant complaint. With the reinstatement of the instant matter, Complainant may want to seek amendment of the instant complaint with those alleged incidents. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Chapter 5, § III.B. CONCLUSION Accordingly, we REVERSE the final agency decision dismissing the instant complaint and REMAND the matter to the Agency for further processing consistent with this decision and the Order below. 2020004519 4 ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020004519 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004519 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 2, 2021 Date