0120122840
04-16-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122840
Agency No. 200H06502012100548
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 18, 2012, dismissing her 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 Receptionist at the Agency's Medical Center in Providence, Rhode Island.
Complainant contacted the EEO Counselor alleging that she was subjected to discrimination and a hostile work environment. When the matter was not resolved in formally, on February 7, 2012, the EEO Counselor set Complainant a Notice of Right to file a formal complaint (Notice). The record indicated that the Notice was received on February 8, 2012.
On February 25, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of disability (legally blind) when:
1. On August 29, 2011, the Human Resources Specialist ordered the Agency's Police to provide video surveillance of Complainant in her work area.
2. On September 30, 2011, the Human Resources Specialist suggested that Complainant consider a disability retirement.
3.
On November 3, 2011, Management would not consider Complainant's doctor note asking to move Complainant out of the hallway as it was an uninhabitable work area exposing her to cold, damp and insufficient lighting. Complainant sought assistance from the Human Resources Specialist but he did not assist her.
The Agency sent Complainant a letter dated June 8, 2012, asking Complainant to provide additional information to explain why she filed her formal complaint beyond the 15 day time limit. On June 15, 2012, Complainant indicated that she underwent retinal surgery on February 13, 2012. In addition, her Representative had the medical documentation supporting her claim scanned and indicated the Agency could contact him to get the documents. Complainant provided a copy of her leave summary indicating that Complainant had been out on either sick or annual leave from February 13- 27, 2012.
The Agency issued its decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency found that the events listed by Complainant were not sufficiently severe or pervasive enough to state a claim of harassment.
In addition, the Agency noted that Complainant received the Notice of Right to File on February 8, 2012, but did not file the formal complaint until February 25, 2012, two days after the expiration of the 15 day limit. The Agency determined that Complainant failed to provide sufficient justification to extend the time limit. As such, the Agency alternatively dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(2).
Complainant appealed asserting that she had been subjected to harassment by the Human Resources Specialists actions. She indicated that the Agency failed to change her workstation despite medical documentation stating that it needed to be changed. Further, as to the 15-day time limit, Complainant stated that it she was hospitalized, blind, immobilized, drugged, and unconscious. She also noted that her representative did not receive a copy of the Notice. As such, she could not file her complaint within the 15 day time limit. Accordingly, Complainant requested that the Commission reverse the Agency's dismissal.
In response, the Agency argued that the Commission should uphold its decision. As to the video surveillance, the Agency noted that Complainant claimed that the Agency was going to use the video tape against Complainant if she were to file a claim with the Office of Worker's Compensation Program (OWCP), which constitutes a collateral attack on the OWCP process. The Agency contends that the events listed by Complainant are not sufficiently severe or pervasive to state a claim of harassment. In addition, the Agency noted that Complainant notified it of her new representative on February 10, 2012. Therefore, the Agency argued that Complainant could have had the representative file the formal complaint.
ANALYSIS AND FINDINGS
Failure to State a Claim
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. In determining whether a harassment complaint states a claim in cases where a complainant had not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission has repeatedly examined whether a complainant's harassment claims, when considered together and assumed to be true, were sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Admin., EEOC Request No. 05970388 (February 26, 1999).
Here, we find that the Agency failed to properly characterize the claims raised in Complainant's formal complaint. Complainant alleged that she was subjected to discrimination based on her disability when she was denied a reasonable accommodation in the form of a change in the workplace. In addition, she alleged that she was subjected to a hostile work environment on the basis of her disability when the Human Resources Specialist asked for video surveillance; told her to consider retiring, and denied her a reasonable accommodation. We find that Complainant has alleged viable claims of discrimination based on her disability. As such, the Agency's dismissal, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim was in error.
Untimely Filing of the Formal Complaint
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Based on a thorough review of the record and consideration of the arguments on appeal, we conclude that the Agency dismissal, due to the untimely filing of the formal complaint, was improper. Given the specific circumstances of this case, including her medical condition and the surgery on her retina, we find sufficient justification to extend the 15-day limitation period. Therefore, we determine that the dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE 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 et seq. 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.
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 (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 (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 16, 2014
__________________
Date
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0120122840
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122840