0120172095
08-29-2017
Maya F,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
Maya F,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120172095
Agency No. 200H05412017102124
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 24, 2017, dismissing her complaint 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. and 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 employee at the Agency's Louis Stokes Medical Center facility in Cleveland, Ohio.
On March 8, 2017, Complainant contacted the Agency's EEO Office. Subsequently, when the matter could not be resolved informally, on April 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when: Complainant was subjected to harassment and denial of reasonable accommodation culminating in her resignation in August 2015.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to raise the matter in a timely manner to the EEO Counselor. The Agency noted that Complainant alleged discrimination involving events in July 2015 which she alleged led to her constructive discharge. The Agency also noted that Complainant asserted that events occurred in 2016. However, none of these events were within 45 calendar days of her contact with the EEO Counselor. Therefore, the Agency dismissed the complaint as a whole.
CONTENTIONS ON APPEAL
Complainant, through her attorney (the Attorney), alleged that the events that led to her resignation were not the only events. Complainant indicated that she sought medical treatment at the same hospital and would run into her former coworkers who continued to harass her. In support of the Attorney's assertions, he provided copies of letters dated February 9, 2016 and August 19, 2016, to the Medical Center Director informing her of the continued harassment Complainant received as a patient of the facility. Complainant also asserted that she sought help from the Reasonable Accommodation Coordinator which the Attorney argued should be considered, in essence part of the EEO process. As such, she asked that the Commission reverse the Agency's final decision and remand the matter for an investigation. The Agency asked that the Commission affirm its decision dismissing the complaint as a whole.
ANALYSIS AND FINDINGS
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 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.
Upon review of the record, we find that the dismissal was appropriate. Complainant contacted the EEO Counselor in March 2017, alleging harassment that resulted in her resignation in August 2015. We note that the Attorney argued that additional events occurred after her resignation in August 2016. Assuming these claims are properly raised in the EEO compliant, Complainant's contact of the EEO Counselor in March 2017, was still well beyond the 45 day time limit. Further, to the extent Complainant asserted to the EEO Counselor that she was not aware of the time frames, we find that Complainant should have known about the EEO complaint process and the 45 day time limit. The Agency provided evidence that Complainant had received training and provided copies of the information given during the training including the EEO complaint time frame and EEO complaint process. Finally, we are not persuaded by the Attorney's assertion that Complainant reached out to the Reasonable Accommodation Coordinator to pursue an EEO complaint regarding her claim of harassment. We find that Complainant did email the Reasonable Accommodation Coordinator and expressed her concerns about the hostile workplace. However, she sought his assistance in obtaining a reasonable accommodation by removing herself from the stressful environment. As such, we conclude that Complainant has not shown that the time period should be extended.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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
August 29, 2017
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172095
2
0120172095