0120172549
01-04-2018
Janay K,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
Janay K,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172549
Agency No. 200I05462017102008
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 20, 2017, 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. Upon review, the Commission finds that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary in the Posttraumatic Stress Disorder (PTSD) Clinic at an Agency Medical Center in Miami, Florida. On April 28, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against her based on disability (Veteran with 30% or more disabilities) when it subjected her to hostile work environment harassment between June 2014 and October 2016. Complainant alleged that management badgered her about her use of sick leave, issued her a reprimand for a delay in completing tasks, accused her of falling asleep during meetings, issued two Reports of Contact to Complainant alleging failure to complete a task properly, issued Complainant a 15-day suspension and a reprimand, failed to place Complainant's rebuttal letter with her reprimand letter, removed her from the PTSD Clinic, marked Complainant as absent without official leave, and gave her a competency assessment. In her complaint summary, Complainant stated that she initiated EEO contact, on November 4, 2016, with an EEO Representative (E1).
In a final decision, dated June 20, 2017, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant contacted its EEO Manager Office on November 4, 2016 and December 19, 2016 and was informed that she needed to contact the Office of Resolution Management (ORM) to initiate EEO contact. The Agency stated that E1 provided Complainant pamphlets about the EEO process and ORM's contact information. The Agency stated although it gave Complainant proper EEO information, she did not take appropriate action until February 15, 2017, which is beyond the 45-day limitation period. The Agency stated that Complainant signed documents acknowledging that she needed to contact ORM to initiate EEO contact.
The instant appeal from Complainant followed. On appeal, Complainant stated that she contacted E1 on November 4, 2016 to file an EEO complaint following harassing incidents in October 2016. Specifically, Complainant stated, "Based on my understanding, [E1] was the individual I needed to come to with my complaint." Complainant stated that E1 provided her information and a form to complete. Complainant stated that she initiated EEO contact in a timely manner and returned to the same office when she did not receive any additional documentation.
The record contains two documents titled "EEO Complaint Notice & Workplace Dispute Tracking Report" (Report). The first Report is dated November 4, 2016 and the second is dated December 19, 2016. On the first Report, Complainant stated "I [Complainant] came in today to make an EEO complaint [and] record for a hostile work environment [and] harassment in PTSD clinic." Both Reports state, "By signing below, I acknowledge that this meeting does not satisfy my obligation to contact an ORM EEO counselor within 45 calendar days of the date of the alleged discrimination in order to pursue an EEO complaint," and both are signed by Complainant. The Reports provide ORM contact information.
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
Under 29 C.F.R. � 1614.105(a)(2), 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 his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army, EEOC Appeal No. 01992817 (Dec. 19, 2000) (citing Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996)).
Here, Complainant satisfied the EEO Counselor contact requirement on November 4, 2016, although she did not contact ORM as dictated by the Agency. We find that Complainant reasonably considered an EEO Manager Office in the facility to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process as she stated on the Report that she wanted to file an EEO complaint.
The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because the Agency informed Complainant that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). The Agency has not met this burden with respect to Complainant's knowledge that she had to contact ORM. Complainant diligently pursued her rights visiting the EEO Manager Office on November 4, 2016 and December 19, 2016, and did not fully understand the need to contact ORM instead.
Based on the specific circumstances herein, we find that the Agency improperly dismissed the complaint for untimely EEO Counselor contact. We caution the Agency about the confusion the EEO Complaint Notice & Workplace Dispute Tracking Report may cause with laypersons who reach out to an Agency office logically connected to the EEO process, such as an EEO Manager Office.
CONCLUSION
We REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the matter to the Agency for further processing.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
January 4, 2018
__________________
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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