[Redacted], Olivia L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 27, 2021

Appeal No. 2021004161 (E.E.O.C. Dec. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Olivia L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021004161 Agency No. 200I05442021102820 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's June 1, 2021 dismissal of 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-11, for the Columbia VA Health Care System in Columbia, South Carolina. On May 10, 2021, Complainant filed a formal EEO complaint alleging that she had been subjected to discrimination by the Agency on the bases of disability and age (60) when, on January 25, 2021, the Acting Nurse Manager (“ANM”) accessed and disclosed Complainant’s medical information. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. 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. 2021004161 2 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. §1614.107(a)(2), 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 §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). Under 29 C.F.R. § 1614.105(a)(1), complaints of discrimination should be brought to the attention of the EEO 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. Here, the record contains documentation identifying March 19, 2021, as the date of initial contact, with March 30, 2021 as the date of the initial meeting. The EEO Counselor’s signed report confirms these dates, and Complainant’s signed formal complaint form identifies January 25, 2021, as the date of the discriminatory act, and March 19, 2021 as the date of initial counseling contact. As such, the record shows Complainant did not initiate contact with an EEO Counselor until March 19, 2021, 56 days after January 25, 2021, the date of the alleged discriminatory act. In its Final Decision, the Agency aptly notes that Complainant did not fill out “Box 14” of the form, which requests an explanation if EEO contact was initiated over 45 days after the discriminatory act. On appeal, Complainant now challenges the date the 45-day limitation period to initiate EEO contact was triggered, arguing it was later than January 25, 2021. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 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. Despite Complainant’s argument on appeal, we determine that reasonable suspicion arose no later than January 28, 2021. Complainant states multiple times in the record that on January 28, 2021, ANM came into Complainant’s office and personally disclosed to Complainant that she, ANM, has accessed Complainant’s medical records out of concern for her. Complainant was aware that ANM’s action was improper, as she immediately contacted the Agency’s Privacy Officer. The February 26, 2021 confirmation from the Privacy Officer was not necessary to give rise to reasonable suspicion of discrimination. Complainant also suggests on appeal that she had an earlier appointment with the EEO Counselor that was within the 45-day limitation period, but it had to be rescheduled because Complainant had a panic attack. Complainant does not identify this date and provides no persuasive evidence that it occurred. There is no other reference to this occurrence in the record. A complainant commences the EEO process by contacting an EEO Counselor and “exhibiting intent to begin the complaint process.” See Hawkins v. Dep’t of the Interior, EEOC Appeal No. 01990377 (Jul. 29, 1999); Gates v. Dep’t of the Air Force, EEOC Request No. 05910798 (Nov. 22, 1991) quoting Moore v. Dep’t of Treas., EEOC Request No. 05900194 (May 24, 1990). We find no evidence that this type of initial contact occurred prior to March 19, 2021, beyond the 45- day limitation period. 2021004161 3 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. 2021004161 4 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 December 27, 2021 Date