0120151139
03-01-2016
Spencer T.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Spencer T.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151139
Agency No. 200J-0515-2014103136
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 21, 2014, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Peer Support Specialist at the Agency's Medical Center in Battle Creek, Michigan.
The record indicated that Complainant received a letter dated March 18, 2013, from the Medical Center Director informing him that pages from the Family Medical Leave Act records were shared with three Administrative Investigation Board members. On June 6, 2013, Complainant sent an email to the Case manager EEO Specialist (EEO Specialist) informing her of the release of his medical documentation to other Agency officials. The EEO Specialist solely instructed Complainant to call the Agency's toll free EEO number. Complainant also raised the letter with the Investigator assigned his prior EEO complaint.
On May 22, 2014, Complainant contacted the EEO Counselor alleging discrimination when the medical documents were released. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a formal complaint. On June 24, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, on March 18, 2013, he was informed that his medical records were shared with the members of an Administrative Board of Investigators.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant was aware of the alleged discrimination when he received the letter. He emailed the EEO Specialist seeking an amendment to his pending EEO complaint. The EEO Specialist indicated to Complainant that he needed to call the Agency's EEO Counselor number regarding this new claim of discrimination. The Agency found that Complainant waited until May 22, 2014, to initiate informal counseling on this new matter, well beyond the 45 day time limit. Without explanation for an extension, the Agency found that the matter should be dismissed pursuant to 29 C.F.R. �1614.107(a)(2) for untimeliness.
This appeal followed. On appeal, Complainant indicated that his appeal is based on the March 2013 letter he received stating that his medical information was shared with Agency officials. Complainant asked that the matter be addressed. The Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the 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).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
The record indicated that Complainant had received the March 2013 letter. Complainant contacted the EEO Specialist via e-mail asking to amend his pending EEO complaint to include the new issue based on the release of his medical information to Agency officials. The only response that the EEO Specialist provided was that Complainant needed to contact the Agency's toll free EEO line. The EEO Specialist failed to give any reason or explanation. The record also contains transcripts from the investigation into Complainant's prior EEO matter which was dated October 7, 2013. During the interrogatory, Complainant raised the issue of the March 2013 letter and noted that he provided a copy of the letter to be included with the prior EEO complaint's investigation. Further, within the record, there is a copy of an e-mail between Complainant and the EEO Counselor in the instant matter. In the e-mail, Complainant stated that the EEO Specialist told him that medical disclosure was a mistake and that there was no intent on the part of the Agency to violate the law.
Upon review of the record, we find that Complainant was not provided with sufficient guidance on how to proceed with his claim of unlawful medical disclosure in violation of the Rehabilitation Act. When Complainant received a copy of the letter informing him of the medical disclosure, he contacted the EEO Specialist seeking an amendment to his existing EEO complaint, namely Agency No. 1200J-0515-2013100601. At any time prior to the Agency's mailing of the notice required by 29 C.F.R. � 1614.108(f) at the conclusion of the investigation, 29 C.F.R. � 1614.106(d) permits Complainant to amend a pending EEO complaint to add claims that are like or related to those claim(s) raised in the pending complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5 III.B. (Aug. 5, 2015).
The EEO Specialist should have instructed Complainant to submit a letter to the agency's EEO Director or a designee describing the new incident and stating that he wishes to amend his complaint to include the new incident. Id. The EEO Director or designee shall review this request, determine whether the new incident constitutes a new claim or one that is like or related to the pending complaint. The EEO Specialist failed to provide Complainant with such guidance. Furthermore, it appears that the EEO Specialist dissuaded Complainant from pursuing the matter and indicated that it was a mistake and that there was motive or intent to violate the law on the part of the Agency. In addition, Complainant informed the Investigator of this new claim in October 2013. The Investigator similarly should have instructed Complainant to make his amendment request in writing to the EEO Director. The Investigator failed to do so as well. Based on the totality of the circumstances of this case, it appears that the Agency officials failed to provide Complainant with the appropriate steps in order to amend his complaint. Furthermore, it appears based on Complainant's email that the EEO Specialist dissuaded him from pursuing this claim that the Agency violated the Rehabilitation Act when it disclosed medical documentation to Agency officials.
The Commission has previously held that the Agency may not dismiss a complaint based on a Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996). See also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if Agency officials misled Complainant into waiting to initiate EEO counseling, Agency must extend time limit for contacting EEO Counselor). Based on the record before us, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. �1614.107(a)(2) was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERES the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, unless the matter is otherwise resolved prior to that time. 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 1, 2016
__________________
Date
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.
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0120151139