Drucilla Y.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 2, 2020

2020002682 (E.E.O.C. Oct. 2, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Drucilla Y.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020002682 Agency No. 2004-0741-2020100718 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated March 5, 2020, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Voucher Examiner for the Veterans Health Administration Office of Community Care at the VAMC in Salem, Virginia. In August 2018, Complainant contacted an EEO Counselor regarding a 14-day suspension issued on August 16, 2018.2 The matter was assigned Agency Case No. 2004-0658-2018105879. According to the Agency, Complainant did not file a formal complaint. Thereafter, Complainant contacted the Office of Special Counsel alleging discrimination based on disability and reprisal with respect to the denial of reasonable accommodation, suspension, an Absent Without Leave (AWOL) charge, non-promotions and her performance evaluation. 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 The proposed suspension was dated July 23, 2018. 2020002682 2 In correspondence dated November 8, 2018, OGC informed Complainant that she “may have a right to seek corrective action from the Merit Systems Protection Board [MSPB].” On January 28, 2019, Complainant filed an MSPB appeal regarding the July 2018 14-day suspension, a September 2018 request for reassignment and additional reasonable accommodations, and an October 2018 AWOL charge. In an “Initial Decision,” dated September 6, 2019, the MSPB Administrative Judge denied Complainant’s requested corrective action. The decision included appeal rights to the Commission. Complainant filed a petition with the Commission seeking review of the MSPB decision. The Commission denied consideration and remanded the matter to the Agency for further processing. See Petitioner v. Dep’t of Veterans Affairs, Petition No. 2020000564 (Nov. 5, 2019). The Agency was ordered to notify Complainant of her right to contact an EEO Counselor within forty-five days of receipt of the Commission’s decision. See id. Further, the Commission expressly stated that “The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO Counselor.” See id. Thereafter, Complainant contacted an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On December 15, 2019, Complainant filed a formal complaint based on disability and in reprisal for her prior protected EEO activity. The Agency framed the claims as follows: On August 18, 2018, Complainant was suspended for fourteen days, for AWOL and failure to follow leave procedures. Additionally, the formal complaint contained a claim of hostile work environment, comprised of the following events a) From July 1, 2018 through July 25, 2018, Complainant’s Supervisor and Manager falsified her time and attendance records to indicate she had not called or sent emails in requesting leave; b) On unidentified dates in 2018, Supervisor charged Complainant AWOL from July 1, 2018 through July 25, 2018; and, c) On unidentified dates in 2018, Supervisor denied Complainant’s request for reasonable accommodation. 2020002682 3 In its March 5, 2020 decision, the Agency dismissed the formal complaint. The Agency dismissed the suspension claim for stating the same claim that was previously raised with the Agency in Case No. 2004-0742-2018105879.3 Regarding the hostile work environment claim, comprised of events (a) through (c), the Agency dismissed the issue on the grounds of untimely EEO Counselor contact. Relying upon the date of Complainant’s earlier MSPB appeal, the Agency reasoned that the contact was past the forty-five day time limit. Additionally, the Agency noted that Complainant had attended several trainings that presented materials concerning the time limitation for contacting an EEO Counselor. Complainant filed the instant appeal. On appeal, Complainant argues that the Agency “did not issue a final order on the initial complaint filed 20 Sept 2018, which was timely filed.” Thereafter, she filed with OSC, which forwarded her case to MSPB, which in turn sent the case to the Commission, and finally back to the Agency. Additionally, she notes that her complaint includes the denial of FMLA between July 1, 2018 and July 25, 2018. Complainant argues the merits of her claims and describes the remedies she seeks. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The instant record reveals that Complainant previously raised the August 2018 14- day suspension in Case No …2018105879. Therefore, the Agency’s dismissal of the claim was proper. As for the remainder of the complaint, the Agency reasoned that her EEO Counselor contact was untimely. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (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 forty-five (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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond 3 We note that the final ten digits of the Agency case numbers match, the middle set of digits cited by the Agency’s decision differ from the file documentation. We do not find this error substantially impacts our analysis. 2020002682 4 his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). The Commission has held that when a complainant files a mixed-case appeal with the MSPB and it is dismissed on jurisdictional grounds, the agency is required to promptly notify a complainant, in writing, of the right to contact an EEO Counselor and file a formal complaint. See 29 C.F.R. § 1614.302(b). The date on which as complainant filed her appeal with the MSPB in such a circumstance shall be deemed to be the date of initial EEO Counselor contact. See Bell v. Department of Defense, EEOC Request No. 05940741 (January 6, 2005). As noted above, Complainant filed her MSPB appeal on January 28, 2019, approximately six months after the allegedly discriminatory events in claims (a) and (b). Therefore, Complainant contact is well beyond the forty-five day time limitation. She has not presented any persuasive arguments to support extending or tolling the time limit. With respect to claim (c), however, Complainant alleges that in 2018 she was denied reasonable accommodations, including reassignment. The EEOC Compliance Manual Section 2 “Threshold Issues”, p. 2-73, EEOC Notice 915.003 (July 21, 2005), provides that “because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it.” Therefore, we find that the Agency’s dismissal of claim (c), pursuant to 29 C.F.R. 1614.107(a)(2) was inappropriate. CONCLUSION The Agency’s decision to dismiss claim (c), regarding the denial of reasonable accommodation, is REVERSED and the matter is REMANDED for further processing in accordance with this decision and the Order below. The remainder of the Agency’s decision is hereby AFFIRMED. ORDER (E1016) The Agency is ordered to process the remanded claim (claim (c)) 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. 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. 2020002682 5 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 CFR § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020002682 6 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, 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). 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. 2020002682 7 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 October 2, 2020 Date