[Redacted], Dania S., 1 Complainant,v.Denis Richard McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021000136 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dania S.,1 Complainant, v. Denis Richard McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021000136 Agency No. 2003-0671-2020104229 DECISION On October 2, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a September 4, 2020 final Agency decision (FAD) 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Registered Nurse, VN-2, at the Veterans Affairs Medical Center, Frank Tejeda Outpatient Clinic in San Antonio, Texas. 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 We take this opportunity to advise the Agency’s Continental District, Office of Resolution Management in Houston, Texas to double check that the EEOC’s NOTICE OF APPEAL/PETITION form 573 it provides with its FAD to complainants is current. The version Complainant received was from January 2001, and it advised that the appeal be mailed to an EEOC Office of Federal Operations address that is over 12 years out of date. 2021000136 2 On July 31, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that she was subjected to discrimination and a hostile work environment based on her sex (female) and disability when: 1. In November and December 2018, her Nurse Manager failed to act after she notified her that Coworker 1 made sexual remarks to her and physically touched her. 2. Between January 29, 2019 and February 13, 2019, her Nurse Manager made multiple requests to her while she was incapacitated for her leave without pay (LWOP) packet, her diagnosis, and subsequently called her and stated/asked, “When are you coming back to work? I just don’t see why your doctor won’t release you to work 8 hours, this would solve your problem.” 3. Between January 29, 2019 and April 26, 2019, her Nurse Manager requested she submit her Family Medical Leave Act (FMLA) paperwork on five different occasions to delay the process. 4. Between February 12-25, 2019, her Nurse Manager failed to act after she notified her that she was being harassed by coworkers about her wheelchair, she was being referred to as “handicapped,” asked “Your handicap now or what? … When are you coming back to work?” and said, “There is nothing wrong with you.” 5. Between February 19, 2019 and February 5, 2020, the Chief Nurse (superior to the Nurse Manager) delayed her request for reasonable accommodation to telework. 6. On February 19, 2019, her Nurse Manager and the Chief Nurse failed to bring the clinic in compliance with Americans with Disabilities Act (ADA), standards. 7. On February 25, 2019, her Nurse Manager told her that she was directed by the Chief Nurse to send her home and to not return until she was fit for duty, and the Nurse Manager told her to change her FMLA paperwork to “incapacitated.” 8. On February 25, 2019 in July 23, 2019, her Nurse Manager and the Chief Nurse failed to act when she notified her that a coworker was harassing her by sending her messages via Facebook messenger. 9. On February 25, 2019, the Chief Nurse directed her to take a fitness for duty exam. 10. On February 25, 2019, her Nurse Manager failed to act when she notified her that a coworker threatened to back over her in her wheelchair with her truck. 11. On February 25, 2019, her Nurse Manager denied her reasonable accommodation request to telework from home. 2021000136 3 12. Between February 26, 2019 and February 5, 2020, her Nurse Manager and the Chief Nurse forced her to take LWOP. 13. On July 22, 2019, her Nurse manager rated her less than outstanding on her annual performance appraisal. 14. On February 5, 2020, her Nurse Manager denied and/or failed to follow her physician’s directives that she work a “restricted” six-hour duty shift. 15. On February 5, 2020, she was left no alternative than constructive discharge and/or constructive resignation from her Registered Nurse position. The Agency dismissed the complaint because Complainant initiated EEO counseling on May 18, 2020, beyond the 45-day time limit. According to the EEO counselor’s report Complainant explained that she delayed because she continuously worked with management and human resources to resolve the issues and human resources until human resources told her around December 2019 or January 2020, that the events did not constitute discrimination or harassment that would be actionable as an EEO claim. Referring to the part of the explanation that Complainant was continuously working with management and human resources, the Agency found this did not justify the delay because her attempts to resolve the matter by working with them did not toll the time limit to initiate EEO counseling. The instant appeal followed. On appeal Complainant, who is represented by counsel, argues that the FAD is misleading because while it addressed the background of her explanation for delay, it did not address the reason for it - that human resources informed her that the underlying events did not constitute discrimination or harassment that would be an actionable EEO claim. In her EEO complaint, Complainant wrote that she relied on this advice by a human resources representative to her detriment, which is why she delayed initiating EEO counseling. In reply to Complainant’s appeal, the Agency argues that Complainant did not identify who in human resources allegedly gave her the bad advice or on what basis it was given. ANALYSIS AND FINDINGS 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). This time limit is subject to waiver, estoppels, and equitable tolling. 29 C.F.R. § 1614.604(c). Complainant argues that the time limit for her to initiate EEO counseling should be equitably tolled because she relied on the advice of a human resources representative that her claims did not constitute discrimination or harassment that would be an actionable EEO claim. 2021000136 4 We agree with the Agency that this contention is not persuasive because Complainant has not identified the human resources representative who allegedly told her this, or the context in which the alleged advice was given that would justify her reliance on it. Accordingly, the FAD is AFFIRMED. 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. 2021000136 5 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). 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 8, 2021 Date