0120152061
10-29-2015
Lynnette M.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lynnette M.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152061
Hearing No. 570-2014-00450X
Agency No. 200406882013101209
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 27, 2015, 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 is a former Practical Nurse at the Agency's facility in Washington, D.C.
On January 4, 2012, Complainant contacted the EEO Counselor alleging discrimination. Complainant raised some 25 events from February 2010 to December 3, 2012, when she learned that a supervisor was making changes to her forms which resulted in issues with her pay. When the matter could not be resolved informally, the Agency issued Complainant a Notice of Right to File a Formal Complaint. On April 10, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when she was subjected to harassment from 2009 to 2012. She indicated that she was subjected to harassment by her supervisor and male patients which the Agency did not resolve. She asserted that the harassment negatively impacted her mental health and she sought reassignment out of the harassing area and reasonable accommodation. She noted that this culminated in her diagnosis of depression in December 2012, and she has been removed from federal service for medical inability to perform her duties.
The Agency issued a partial dismissal/partial acceptance letter. The Agency noted that Complainant alleged she was subjected to a hostile work environment based disability as evidenced by the following events:
1. On December 10, 2009, Complainant's request for an adaptive chair as an accommodation was denied.
2. On December 31, 2009, the OWCP coordinator called Complainant "nigger" and "smartass".
3. On February 2, 2010, the Nursing Supervisor, asked questions about Complainant's working status; made jokes that she was on leave without pay and that she must be getting paid nothing and how does she survive.
4. On February 4, 2010, the Reasonable Accommodation Coordinator, refused to present complainant's reasonable accommodation packet to the Reasonable Accommodation Committee.
5. On February 11, 2010, Complainant submitted a statement from Occupational Health which stated she should be reassigned from the Emergency Room, however, the statement went unnoticed by management.
6. On April 5, 2010, Complainant became aware that the Supervisor requested coworkers to keep notes on her.
7. On June 3, 2010, the Human Resources Chief (HR Chief) denied Complainant's request to be given the EMS-10-2305 position.
8. On July 12, 2010, Complainant was not selected for the vacancy announcement number DEN-10-106-GS-303-5/6.
9. On August 10, 2010, the Reasonable Accommodation Coordinator denied Complainant's request of a reasonable accommodation to be placed in a vacant position.
10. On August 25, 2010, Complainant requested to be placed in the vacant position RAD-10-163-GS-303-5/6 but was denied.
11. On September 24, 2010, the Reasonable Accommodation Coordinator denied Complainant's request to be reassigned out of the Emergency Room.
12. On October 29, 2010 and November 13, 2010, Complainant requested unpaid sick leave as an accommodation but was denied.
13. On January 5, 2011, the Supervisor gave complainant a letter threatening her with termination if she did not return to work.
14. On March 4, 2011, Complainant was denied unpaid sick leave as a reasonable accommodation.
15. Effective April 1, 2013, Complainant was removed from Federal employment.
On May 31, 2013, the Agency dismissed events 1, 4, 7, 8, 9, 10, 11, 12, and 14 as discrete events finding that Complainant failed to contact the EEO Counselor in a timely manner. The Agency accepted the events for investigation in support of her claim of harassment. In response to the Agency's statement of Complainant's claim of discrimination, Complainant indicated on June 15, 2013, that the Agency failed to properly identify her complaint. Complainant noted that the Agency's statement of events was not complete. In addition, Complainant clarified that she was not alleging discrimination when she was terminated effective March 2013.
The matter was investigated. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On January 14, 2015, the AJ dismissed the matter finding that Complainant alleged a mixed case complaint, particularly Complainant's claim of termination. The AJ remanded the matter back to the Agency for issuance of a final decision with appeal rights to the Merit System Protection Board. On January 20, 2015, Complainant responded to the dismissal action and noted that she had never raised the termination action as part of her complaint of harassment.
The Agency issued its final decision. The Agency noted that Complainant had withdrawn her claim of discrimination based on her termination. As such, the Agency determined that Complainant's mixed case complaint was no longer mixed. Therefore, the Agency reviewed Complainant's claim of harassment. The Agency found that Complainant alleged harassment based on events that occurred from December 10, 2009 and March 4, 2011. The Agency noted that Complainant contacted the EEO Counselor on January 4, 2013, well beyond the 45 day time limit. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). This appeal followed. Complainant alleged that the Agency improperly dismissed the complaint. Further, Complainant asked that the Commission reverse the Agency's final decision and remand the matter for a hearing.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the agency or Commission.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id. Here, we find that the Agency failed to properly identify Complainant's claim of harassment. Based on all the documents provided in the record including the formal complaint and the EEO Counselor report, Complainant alleged that she was subjected to harassment based on her disability based on events from December 10, 2009 to December 3, 2012. Complainant contacted the EEO Counselor on January 4, 2013. We find that Complainant's contact was well within 45 calendar days of the most recent event alleged, namely December 3, 2012. Therefore, we find that the Agency's dismissal of the matter was not appropriate.
Remand for a Hearing
In addition, we note that Complainant, for years, has been trying to withdraw the Agency's erroneous inclusion of her termination. As such, the Agency correctly determined that the complaint at hand is no longer mixed and processed accordingly. See generally Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). The Agency is required to process the allegation of discrimination as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The matter should be remanded back to the point where processing ceased. Therefore, the Agency should remand the matter to the AJ for a hearing.
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 Complainant's claim of harassment for further processing in accordance with the ORDER below.
ORDER
Within 15 days of the date this decision becomes final, the Agency shall request that the EEOC's Washington Field Office schedule a hearing. The Agency is directed to also submit a copy of the complaint files to the Hearings Unit of the Washington Field Office within 15 days of the date this decisions becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint files have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 et seq., and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0815)
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, 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 (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
October 29, 2015
__________________
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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