[Redacted], Kimber L., 1 Complainant,v.Dak Tran, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020005410 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kimber L.,1 Complainant, v. Dak Tran, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020005410 Agency No. 2004-0659-2020102526 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 16, 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 Registered Nurse at the Agency’s VAMC facility in Salisbury, North Carolina. On May 25, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when: 1. She was non-selected for six positions.2 2. She was subjected to harassment as evidenced by the following incidents: 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 During counseling Complainant raised 6 non-selections which she later added to her formal complaint. The non-selections appear to have occurred during 2018 and 2019. 2020005410 2 a. On May 31, 2019, the Nurse Manager did not inform Complainant that two employees had called out. b. In October 2019, she was subjected to a fact-finding investigation involving allegations of a hostile work environment. c. On January 9, 2020, management failed to share the results of the fact- finding investigation with her. d. On an unidentified date, the Nurse Manager failed to keep her abreast of what was going on in the operating room when she learned that the Nurse Manager was taking an employee to the hospital. However, the Nurse Manager did not share the information with Complainant. e. In December 2018, the Nurse Manager kept her out of a work discussion when she learned that an employee asked for “The Day of Mourning” holiday off, and the employee’s request was denied. 3. She was subjected to a hostile work environment based on her race (Black) as evidenced by the following events: a. On or about November 6, 2017, the Nurse Manager and MP, an employee, spoke to Complainant in the Operating room (OR) Core and she felt it was unprofessional. b. In April 2019, MP asked Complainant, “[Complainant] what’s wrong with this calendar?” further stating “oh, and you are going to ignore me.” c. In May 2019, an employee accused Complainant of putting her hand up at her during a conversation about supplies for a procedure. d. In June 2019, OR Personnel filed a hostile work environment complaint against Complainant. e. In August 2019, LW, another Nurse Manager, filed a hostile work environment complaint against Complainant. f. On January 15, 2020, the Nurse Manager rated Complainant unsatisfactory on her FY-19 proficiency rating which was lower than her previous years rating. g. On May 23, 2019, BA, an employee, told Complainant, “[Complainant], you did not have to go over to undermine me and make me look bad in front of Dr. A.” h. On June 25, 2020, Complainant was non-selected for the position of Gynecologist Nurse Practitioner, under vacancy announcement number CBTA-106-96133-RLK. i. On an unidentified date, the Nurse Manager told Complainant, “[Complainant], I am tired of your passive-aggressive behavior! It is not your job to take over the room, but to help out!” 2020005410 3 j. On an unidentified date, MP told Complainant, “I’m mad, I can’t work like this. You analyze everything I say, and use big words like I am a dumb ass!” The Agency dismissed claim 1 (involving the six non-promotions in 2018 and 2019) for untimely EEO counselor contact noting that Complainant did not contact an EEO counselor until February 25, 2020. The Agency also dismissed claim 2 for failure to state a claim, and the entire complaint for failing to file the formal complaint in a timely manner. The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. The record discloses that Complainant received the notice of right to file a formal complaint on May 5, 2020. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until May 25, 2020, which is beyond the limitation period. On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Because we find that Complainant’s formal complaint was untimely filed, we need not address the Agency’s alternate reasons for dismissing claims 1 and 2. However, we note that claim 3h involves a non-selection that is alleged to have occurred on June 25, 2020, one month after Complainant filed her formal complaint. As this is a non-selection claim that appears to have been timely raised as an amendment to the May 25, 2020 complaint, we find that Complainant should be given a chance to pursue this separately as a new complaint. This claim is being remanded for further processing. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED in part and REVERSED in part. ORDER (E0618) The Agency is ordered to process the remanded claim (3h) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. 2020005410 4 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. 2020005410 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). 2020005410 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 February 9, 2021 Date