[Redacted], Ivelisse S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionMay 24, 2021Appeal No. 2021001725 (E.E.O.C. May. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivelisse S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001725 Agency No. 200J05782020105737 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from a December 22, 2020 Final Agency Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging 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 Part-Time Licensed Practical Nurse ("LPN"), GS-6, at the Edward Hines Jr. VA Hospital in Hines, Illinois. On November 23, 2020, Complainant filed a Formal EEO Complaint alleging that the Agency subjected her to a hostile work environment/harassment on the basis of race (Black) when: 1. In July 2020, the Nurse Manager turned several employees against her, and, 2. On April 21, 2020, the Nurse Manager informed Complainant that she was not selected for the Full-Time LPN Position. 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. 2021001725 2 In July 2019, Complainant, who had been working at the Agency for 10 years, made it known to the Nurse Manager that she wanted to convert from Part Time to Full Time. Over the next eight months, when Complainant inquired, the Nurse Manager told Complainant that she was consulting with HR about converting her status. Then, in or around February 2020, a full-time position became available, and instead of converting Complainant to Full-Time, the Nurse Manager posted the position and let other LPNs who were interested know about the vacancy. Complainant did not apply, but the Nurse Manager, aware of her interest in the opportunity, asked Complainant to submit her resume. She also told Complainant that she would need to interview for the position. Complainant interviewed on March 12, 2020. On April 21, 2020, Complainant said she was devastated when the Nurse Manager told her that another employee was selected for the full-time position. According to Complainant, the Nurse Manager had hired, reassigned or converted about 20 employees between April 2019 and August 2020, yet did not convert her to full-time. In May 2020, a temporary employee was hired, even though the Nurse Manager allegedly assured Complainant this would not happen. As a result, Complainant’s hours were decreased, at the next schedule change, in July 2020, and there appeared, according to Complainant, to be no foreseeable opportunities to convert from Part- Time to Full-Time. 2 The Agency dismissed the matter for untimely filing of the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2). Alternately, the Agency dismissed Claim 2 for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. § 1614.107(a)(2), and Claim 1 for failure to state a claim pursuant to C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS Timeliness The regulation set forth under 29 C.F.R. §1614.107(a)(2) states, in relevant part, that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§1614.105, 1614.106, and 1614.604(c). These time limits are subject to waiver, estoppel, and equitable tolling pursuant to 29 C.F.R. §1614.604(c). 2 Complainant contacted the Union about the temporary nurse hire as the Nurse Manager was aware Complainant was still seeking conversion to Full-Time. On May 28, 2020 an informal meeting was held with management. The notes state that, Complainant was told her hours would decrease when the staff schedule changed on July 4, 2020, and that the temporary RN was contracted for 17 months. Complainant’s nonselection was also referenced. No formal grievances were filed. 2021001725 3 Where there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Formal Complaint Under 29 C.F.R. §1614.106(b) a complainant must file a written complaint with the agency that allegedly discriminated against them within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint. In instances of untimely filing, the Agency must not only demonstrate that the complainant received Notice, but that the Notice clearly informed the complainant of the 15-day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995). In cases where complainant designates an attorney as representative, service of all official correspondence must be made on the attorney and the complainant, but time frames for receipt of the materials shall be computed from the time of receipt by the attorney. 29 C.F.R. §1614.605(d). However, at all times, Complainant is responsible for proceeding the complaint whether or not a representative has been designated. See 29 C.F.R. §1614.605(e). Complainant received a Notice of Right to File a Discrimination Complaint (“NORTF”) on November 2, 2020, but she did not file her formal complaint until November 23, 2020, which is past the deadline. There is no dispute that Complainant was on notice of the fifteen-day time limit to file her formal complaint. On appeal, Complainant contends that the Agency failed to issue a copy of the NORTF to her legal representative (“LR”). The record reflects that during her initial EEO interview on August 11, 2020, Complainant provided her EEO Counselor with the name and contact information for LR. Based on the August 11, 2020 intake form, LR is Complainant’s attorney of record. There is no evidence that the Agency issued a copy of the NORTF to LR in the record. The Agency argues that Complainant “replaced” LR because she provided the name and number of a non-legal representative instead of LR on the August 20, 2020, Notice of Rights and Responsibilities and mediation agreement with the Office of Resolution Management (“ORM”). This is not sufficient to overcome the August 11, 2020 intake form identifying LR as Complainant’s attorney of record. Moreover, Complainant provides evidence that ORM was on notice that LR continued to represent her. Efforts spanning months to schedule and reschedule mediation were based around LR’s busy schedule, and an October 28, 2020, email Complainant sent to an ORM EEO Specialist expressly identifies LR as her representative for mediation. In instances where an agency did not serve complainant's attorney with the necessary notice, the Commission has previously found that the formal complaint was timely filed. Blakemore v. Dep’t of the Navy, EEOC Appeal No. 01A42421 (Aug. 5, 2004). Therefore, we deem that Complainant’s complaint was timely filed. 2021001725 4 EEO Contact - Claim 2 In relevant part, 29 C.F.R. §1614.107(a)(2) states that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 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. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). Based on the record, we find that reasonable suspicion of discrimination existed for the events in Claim 2 by April 21, 2020, and no later than May 28, 2020, which is beyond the 45 day limitation period. When the Nurse Manager met with Complainant on April 21, 2020, she told Complainant the name of the selectee, who worked in one of the same areas as Complainant. Complainant would have been aware of the selectee’s race. Complainant would also have been aware that the selectee received alleged favorable treatment. In her Formal Complaint, she expresses the sense of unfairness she had at the time she learned of her nonselection, stating, “I cannot see how a temporary employee with only 6 months spinal cord experience was [the] more qualified employee,” as well as alleging that the Nurse Manager said the selectee “deserved” the position more than she did. Knowledge of the selectee’s race and favorable treatment is sufficient to establish reasonable suspicion. Also, Complainant indicated reasonable suspicion when she raised the issue of her nonselection during a meeting with Union officials and Management on May 28, 2010. Claim 2 is untimely. Harassment/Hostile Work Environment- Claim 1 Where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Upon review, Claim 1 lacks the necessary specificity to state a claim of harassment because, beyond the bare assertion that the Nurse Manager turned several employees against her, Complainant failed to allege facts sufficient to show that she suffered a harm or loss with respect to a term, condition or privilege of employment for which there is a remedy. See Hayes, v. United States Postal Serv., EEOC Appeal No. 0120090119 (Jun. 29, 2010), see, e.g. Carlan v. Dep’t of the Treasury, EEOC Appeal No. 01A32447 (Aug. 1, 2003) (finding failure to state a claim due to lack of specificity where “Complainant has not identified when the events occurred, what happened, how she was directly disadvantaged, or how these matters altered the terms, conditions, or privileges of her employment”). Claim 1 fails to state a claim. 2021001725 5 CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 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. 2021001725 6 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 May 24, 2021 Date Copy with citationCopy as parenthetical citation