0120140317
04-07-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140317
Agency No. 200H07572013103060
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated October 4, 2013, 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. and 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 Surgical Technician at the Agency's Medical Center facility in Columbus, Ohio.
On July 27, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), disability (asthma), and reprisal for whistle blowing when:
1. On November 16, 2009, the Surgical Nurse Manager (SNM) accessed Complainant's medical records without her consent.
2. On August 19, 2010, SNM suggested that Complainant go to Employee Health, questioned the way she held her hands during a medical procedure, and indicated Complainant might be unable to perform her duties as a Surgical Technician.
3. On October 13, 2009, and September 10, 2012, SNM and the Nurse Executive (NE) failed to take action following Complainant's complaint that a coworker's cologne was causing Complainant to experience asthma-like symptoms.
4. On May 17, 2013, and June 25, 2013, SNM and the Nurse Executive (NE) failed to take action following Complainant's complaint that a coworker's cologne was causing Complainant to experience asthma-like symptoms.
5. On March 12, 2013, SNM questioned Complainant about the administration of medication to a patient.
6. On April 16, 2013, CW instructed Complainant to use a broken instrument on a patient.
The Agency characterized the claims slightly differently, consolidating claims 3 and 4 into a single claim, and dismissed the claims for untimely EEO Counselor contact and/or failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of an alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
The record in the instant case establishes that Complainant first initiated EEO counseling contact on the matters raised in her complaint on May 15, 2013. This was beyond the 45-day limitation period for the events raised in allegations (1), (2), (3) and (5).
However, the Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Court recognized that allegations of harassment and the existence of a hostile work environment involve, by their nature, a series of incidents linked by a pattern of conduct. This is contrasted with claims involving discrete acts such as a promotion or termination which are clearly defined. In those instances, the Court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. Untimely discrete acts may be used as background evidence in support of a timely claim, however. Id.
Applying the Morgan decision, we find that the significant break in time between allegations (1) - (3), and the remaining allegations that occurred in the spring of 2013, does not support a finding that they are part of a series of related events that form a single claim of harassment/hostile work environment. Moreover, with regard to allegation (1), having one's medical privacy violated is a discrete act which should have triggered Complainant's duty to contact an EEO Counselor within 45 days.1 Accordingly, we find that the Agency correctly dismissed allegations (1) - (3) from the complaint as untimely raised.
Failure to State a Claim
With regard to allegations (4), (5), and (6), we note that in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Following a review of the record we find that ignoring Complainant's complaints about a coworker's cologne, questioning Complainant about the administration of medication to a patient, and instructing Complainant to use a broken instrument on a patient would not subject Complainant, even if proven true and considered together, to harassment sufficiently severe or pervasive to alter the terms of Complainant's employment. Hence allegations (4), (5) and (6) fail to state a viable claim of harassment/hostile work environment. Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997);
While we have determined that Complainant has not stated a timely-raised claim of harassment or disparate treatment, we do find that allegation (4) is a timely-raised claim of denial of reasonable accommodation. While Complainant did not expressly state that she made a reasonable accommodation request and that it was denied, a fair reading of her allegations makes it evident that she was alleging a denial of accommodation for her asthma. Robinson-Brooks v. U.S. Postal Service, Appeal No. 0120120732 (2012) (an employee is not required to use "magic words" when making a reasonable accommodation request). Accordingly, an investigation is required to determine whether Complainant was denied a reasonable accommodation.
CONCLUSION
Complainant's EEO counselor contact was untimely for allegations (1), (2) and (3), and allegations (5) and (6) fail to state a claim. However allegation (4) was improperly dismissed as it states a valid claim of denial of reasonable accommodation. Accordingly, the FAD is AFFIRMED in part and REVERSED in part, and allegation (4) is REMANDED for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (denial of reasonable accommodation) 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 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 (November 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 (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 (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, Director
Office of Federal Operations
April 7. 2014
__________________
Date
1 Complainant alleged that SNM accessed her private medical records on November 16, 2009. Complainant stated in her Formal Complaint that "no one was made aware of the privacy violated in 2009," but Complainant has not specified when she learned of SNM's alleged action. The record shows, however, that Complainant filed a Freedom of Information Act (FOIA) request on February 23, 2012, and received a reply that same day, informing her that her records had been accessed. Complainant, however, did not initiate contact with an EEO Counselor until May 15, 2013.
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0120140317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140317