0120152752
11-30-2017
Margaret L.,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
Margaret L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
Agency.
Appeal No. 0120152752
Agency No. 200305492014101469
Agency No. 200305492014103098
DECISION
Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from Agency decisions dated September 12, 2014 and June 19, 2015, concerning her complaints 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. For the following reasons, the Commission AFFIRMS the Agency's decisions.
BACKGROUND
At the time of the events giving rise to the complaints, Complainant worked as a Certified Nursing Assistant at the Agency's Dallas Veterans Administration Medical Center facility in Dallas, Texas. Complainant was responsible for assisting the Registered Nurses with the patient care needs within the Hospice Unit providing care for veterans with end-stage conditions.
On February 28, 2014, Complainant received a Notice of Right to File a Discrimination Complaint concerning Agency Complaint No. 2003-0549-2014101469. Complainant was informed that she had to file a formal complaint with the Agency on or before March 17, 2014. However, her formal complaint was not received until August 25, 2014. Complainant's only justification for the late filing was her assertion that she was diagnosed with depression and anxiety. On September 12, 2014, the Agency issued a final decision dismissing Agency Complaint No. 2003-0549-2014101469 on the grounds that it was filed in an untimely manner.
Subsequently, Complainant filed Agency Complaint No. 2003-0549-2014103098. Complainant alleged that she was discriminated against on the basis of race (African-American) and reprisal for engaging in EEO activity when she was subjected to a hostile work environment as follows: (1) the Unit Supervisor (S-1) solicited co-workers for documentation of any negative interactions that they experienced with Complainant; (2) a Registered Charge Nurse (N-1) followed Complainant from room to room asking her when she will be finished with her patient, stated that she was taking too long and commented negatively about Complainant's hair; (3) a second Registered Nurse (N-2) stated, as Complainant walked a patient to the shower, "...your damn ass acts like you are crazy, just like you have a damned mental problem. You are nothing but a mother f... C. N. A. (Certified Nursing Assistant) and you act like you have a damned mental problem"; (4) S-1 informed Complainant of a report that Complainant abused the patient taken to the shower without his pain medicine; (5) N-2 falsely accused Complainant of taking a patient to the shower without permission; (6) S-1 detailed the Complainant to another nursing service, pending the outcome of an investigation into the allegations of patient abuse; and (7) the Agency disclosed her medical records violating her privacy.
The Agency accepted allegations (1) - (6) for investigation. The Agency dismissed allegation (7), on the grounds that Complainant failed to state a claim because she had alleged that her privacy rights had been violated, which was outside the purview of the EEO statutes. The Agency's investigation indicated that: with regard to allegation (1), S-1 was gathering information from other nurses about Complainant's interactions with them pursuant to an official fact-finding inquiry in connection with complaints by the Charge Nurse regarding threatening conduct by Complainant. The Agency noted a Report of Contact in the record from April 2014 concerning an allegation by N-1 of a hostile work environment created by Complainant. With respect to allegations (2) and (3), N-1 explained that she was not at work on April 9, 2014, as evidenced by her pay stub; and N-2 denied making the statements that were attributed to her. According to the record, N-2 was not in the unit when Complainant maintained the comments were made. Complainant, according to N-2, was not authorized to take the patient to the shower because she, N-2, was not in the unit on April 14, 2014. Complainant asked another nurse to unhook the patient's pain pump. With regard to allegation (4), S-1 stated that he merely informed Complainant of the report.
Allegation (5) and (6) concern the re-assignment of Complainant on April 21,2014, in connection with the investigation of an allegation of patient abuse. The testimony by S-1, N-1, N-2, and the HRO indicated that the re-assignment was a routine and uniformly applied nursing practice during investigations of nurses regarding alleged patient abuse reports. There is no dispute that Complainant was returned to the unit after the investigation was completed. Regarding her disparate treatment claim, Complainant maintained that another nurse in her unit was accused of patient abuse but was not required to move on a detail off the unit. The record contains testimony by the other nurse, who identified her race as African American (the same as Complainant's race) denying that she ever had a patient abuse charge lodged against her.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Administrative Judge. Although she received the notice on February 25, 2015, she did not request a hearing during the required timeframe. Consequently, the Agency issued a final decision.
CONTENTIONS ON APPEAL
Complainant asserts that she was diagnosed with depression and anxiety. She contends it was caused by a racially hostile work environment. She contends that she was bullied continuously and called the N-word and other epithets. With regard to Complainant's failure to timely file a formal complaint concerning Agency Complaint No. 2003-0549-2014101469 and a timely request for a hearing concerning Agency Complaint No. 2003-0549-2014101469, she asserts that depression and anxiety, her lack of legal training, and the fact that she was not represented by counsel all contributed to the untimely submissions.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Agency Complaint No. 2003-0549-2014101469
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with the agency that allegedly discriminated against a complainant within fifteen (15) calendar days after the date of receipt of the notice of right to file an individual complaint required by 29 C.F.R. �1614.105(d), (e), or (f). A complaint is deemed timely filed if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604(b). An agency shall dismiss a complaint which is not filed within the fifteen-day time period. See 29 C.F.R. �1614.107(a)(2).
The record discloses that Complainant received the notice of right to file a formal complaint on February 28, 2014. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until August 25, 2014, which was well beyond the limitation period.
As an explanation for filing her complaint in an untimely manner, Complainant asserted that she was diagnosed with depression and anxiety. She also contends that it was caused by a racially hostile work environment.
When a complainant claims that a physical condition prevents them from meeting a particular filing deadline, we have held that in order to justify an untimely filing, the complainant must be so incapacitated by the condition as to be rendered physically unable to make a timely filing. See Zelmer v. United States Postal Service. EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity attributable to psychiatric or psychological conditions. See Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992).
We find that Complainant's above referenced statement, without more detail, is too general in nature to support a finding of incapacitation for the specific appeal period at issue, such as to justify her untimely filing. Accordingly, we find that Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. The Agency's dismissal of the complaint is AFFIRMED.
Agency Complaint No. 2003-0549-2014103098
At the outset, we find that Complainant did not submit a timely request for hearing. The Agency provided Complainant with a copy of the Investigative File and notice of her right to request a hearing which Complainant received on February 25, 2015. Therefore, Complainant had until Friday, March 13, 2015 (30 calendar days) to request a hearing. Although Complainant cites her medical condition as the reason she did not submit a timely request, we find, for the same reasons provided above, that she has not provided an adequate justification.
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, for purposes of this case only, that Complainant established a prima facie case of discrimination based on race and reprisal, we find that the Agency articulated legitimate, non-discriminatory reasons for allegations (1) - (6) or indicated that some of these matters did not in fact take place as alleged. We further find that Complainant did not establish that the Agency's explanations were a pretext for discrimination based on either race or reprisal.
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions allegedly taken by the Agency above were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With respect to claim (7), we note that Complainant did not allege that there was a violation of the Rehabilitation Act. Her only basis of discrimination was race and reprisal under Title VII. As such, we find that the Agency properly dismissed her allegation that her privacy rights were violated on the grounds that she failed to state a claim.
CONCLUSION
Accordingly, the Agency's final decisions dismissing both complaints are AFFIRMED.
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 (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
__11/30/17________________
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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