0120122797
01-04-2013
Erlinda Cordita, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Erlinda Cordita,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122797
Agency No. 200P06632012101682
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 4, 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 Staff Nurse at the Agency's VAMC Seattle facility in Seattle, Washington.
On April 18, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (Physical) and reprisal for prior protected EEO activity under the Rehabilitation Act when: around December 2011/January 2012, management requested that she provide additional medical evidence to support her request for a reasonable accommodation. Complainant also alleged that she had been subjected to a hostile work environment regarding the terms and conditions of her employment.
According to the EEO Counselor's Report, Complainant's reasonable accommodation request to work the day shift was granted and she received a signed copy of the approval. However, she would also need to submit medical documentation based on her comments that she was taking medication. The Agency wanted to know how the medication affects her so that it can be sure that she can perform as a nurse.
Concerning Complainant's challenge to the Agency's request for additional evidence supporting her need for an accommodation, the Agency dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant does not state a viable claim of retaliation in this matter. Concerning Complainant's harassment claim, the Agency dismissed it pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that this claim is not like or related to the reasonable accommodation matter raised in Complainant's original complaint during EEO counseling. The Agency further noted that with the exception of two events that occurred on April 18, 2011, and around October 5, 2011, the events in the harassment claim occurred before the matter that was discussed with the EEO Counselor and, therefore, could not have grown out of the original complaint. Additionally, the events that occurred on April 18, 2011, and on or about October 5, 2011, involved Complainant being moved to the Blue Team to perform Licensed Practical Nurse (LPN) duties and being threatened with termination. Consequently, the Agency found that none of the events in the harassment claim add to or clarify the matter brought before the EEO Counselor, i.e., when Complainant complained of being required to provide additional medical evidence to support her request for reasonable accommodation, which was ultimately granted, effective February 9, 2012.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission finds that Complainant's claim regarding the Agency's medical request for her reasonable accommodation fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Further, we find that the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in protected activities. Thus, the Agency's dismissal of this claim for failure to state a claim was proper.
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 raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990).
Here, as the Agency correctly noted, the events in Complainant's harassment claim do not add to or clarify the matter brought before the EEO Counselor, again, when Complainant complained of being required to provide additional medical evidence to support her request for a reasonable accommodation. Therefore, the Agency's dismissal of this claim for raising a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which Complainant has received counseling, was proper.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
January 4, 2013
__________________
Date
2
0120122797
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122797