[Redacted], Drucilla F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2021003906 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Drucilla F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003906 Agency No. 2003-0554-2021101970 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 28, 2021, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as a Medical Support Assistant, GS 6 at the Agency’s VA Eastern Colorado Health Care System in Aurora, Colorado. On January 27, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On, April 30, 2021, Complainant filed a formal EEO complaint claiming that the Agency subjected her to hostile work environment and discrimination based on race and sex. As summarized by the Agency, the formal complaint consisted of the following claims: 1. Complainant raised a claim related to her “fully successful” performance evaluation received in December 2019. 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. 2021003906 2 2. Complainant wanted to include a Report of Contact (ROC) she submitted on August 8, 2019, which described a sexual harassment matter. 3. Complainant raised matters related to mediation sessions that she participated in on January 13, 2020 and April 12, 2021.2 In its final decision dated May 28, 2021, the Agency dismissed the formal complaint on several procedural grounds. First, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(4), finding that Complainant had previously raised this matter in a negotiated grievance procedure. The Agency determined that its collective bargaining agreement permits employees to use the EEO complaint process or the negotiated grievance process, but not both. Second, the Agency dismissed claim 3, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency explained that the claims Complainant raised occurred during mediation sessions. The Agency further explained that the Commission has generally held that actions related to mediation and statements made during mediation fail to state a claim and cannot be made the subject of an EEO complaint. Third, the Agency dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency determined that Complainant initiated EEO Counselor contact on January 27, 2021, which it found beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS As an initial matter, we note that, on appeal, Complainant only disputes the Agency’s dismissal of claim 2 for untimely EEO counselor contact. Complainant explains that she learned in early April 2021, during another Agency investigation involving her alleged harasser (H1), that H1 admitted to the sexual harassment Complainant reported in her August 2019 ROC. Complainant further explains that after she learned this information, she included this claim in her April 30, 2021 formal complaint. 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. Here, the only alleged discriminatory incident at issue occurred on August 8, 2019, when Complainant wrote the ROC describing her allegation of sexual harassment. Complainant did not initiate EEO counselor contact on this matter until January 27, 2021, a year and a half later. 2 During these mediation sessions, Complainant learned that her alleged harasser’s input was considered in Complainant’s performance appraisal. 2021003906 3 We do not find persuasive Complainant’s argument that she did not learn until April 2021, that H1 had admitted to the sexual harassment claims Complainant reported in August 2019. The Commission uses 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). Therefore, the time limit was triggered when Complainant alleged that that she was sexually harassed in her August 8, 2019 ROC, and not when Complainant learned of supporting evidence of the alleged discrimination (i.e., the circumstances regarding the Agency’s investigation of H1 revealing that H1 admitted to the sexual harassment claims Complainant reported in the ROC). We further note that, neither in the record nor on appeal, has Complainant alleged ongoing sexual harassment by H1. There is no allegation of sexual harassment occurring beyond August 2019. A review of the EEO Counselor’s report indicates that the EEO Counselor: asked [Complainant] about the sexual harassment… however, [Complainant] indicated that she was moved to a position away from the alleged harasser . . . but this complaint was regarding [Complainant’s] concern of her [alleged] harasser having participation with her evaluation. Consequently, Complainant indicated during EEO counseling that her claim primarily related to H1’s alleged involvement with her performance evaluation and did not include a more recent claim of sexual harassment by H1. Complainant has not provided adequate justification for extending the limitation period beyond 45 days. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above 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. 2021003906 4 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). 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. 2021003906 5 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 September 27, 2021 Date