Chrystal S,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 11, 2017
0120171283 (E.E.O.C. May. 11, 2017)

0120171283

05-11-2017

Chrystal S,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Chrystal S,1

Complainant,

v.

Dr. David J. Shulkin,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120171283

Agency No. 200406522016104955

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated January 27, 2017, 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 Nurse Practitioner at the Agency's McGuire VAMC facility in Richmond, Virginia.

On December 1, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to unlawful retaliation for prior EEO activity when: (1) from 2014 to March 21, 2016, the a Physician Assistant-Cardiothoracic ("DM") has created a hostile work environment while on the CT Surgery service; (2) on March 18, 2016, Complainant was intimidated when DM looked at her with an angry expression; (3) on March 18, 2016, DM yelled at the Complainant, "I want to know what you meant by Paul doing all the thoracic surgery cases?"; (4) on March 19, 2016, DM called Complainant at home and questioned her concerning two cases scheduled on the same day; (5) on March 21, 2016, Complainant was singled out by [Dr. Q], for scheduling two cases in one day; and (6) on March 21, 2016, DM questioned Complainant's aptitude for scheduling patients for surgery.

The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency also dismissed the complaint for failure to state a viable hostile work environment claim.

The instant appeal followed.

ANALYSIS AND FINDINGS

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 record discloses that the last alleged discriminatory event occurred on March 21, 2016, but Complainant did not initiate contact with an EEO Counselor until August 25, 2016, which is beyond the forty-five (45) day limitation period. The Agency provided a sworn statement regarding the posting of information in Complainant's work site regarding the EEO process, as well as information showing that Complainant had received appropriate training regarding the EEO process. As such, she is presumed to have been aware of the time limits for contacting an EEO counselor.

On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant stated that she was waiting for the results of a management investigation during the relevant time period. However, the Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).

Because we dismiss the complaint for untimely EEO counselor contact, we need not address whether the complaint states a claim.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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

May 11, 2017

__________________

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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