[Redacted], Mozelle G., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 13, 2021Appeal No. 2021003660 (E.E.O.C. Sep. 13, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mozelle G.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021003660 Agency No. 2004-0540-2021101929 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 20, 2021, dismissing her complaint alleging 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Nursing Assistant in Clarksburg, West Virginia. On January 26, 2021, Complainant contacted an EEO Counselor. Informal efforts to resolve her concerns were unsuccessful. On April 19, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female). In its final decision dated May 20, 2021, the Agency determined that the formal complaint was comprised of the following claims: Whether Complainant was subjected to a hostile work environment based on sex (female/sexual harassment) as evidenced by the following events: 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 2021003660 a. From April 2019 to September 2020, [a named physician (P1)] subjected Complainant to sexual assault. b. From April 2019 to September 2020, management failed to take remedial action against [P1]. c. On September 8, 2020, Complainant was subjected to constructive discharge when she resigned from her position, effective September [17], 2020.2 In its final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact The Agency reasoned that Complainant initiated EEO Counselor contact on January 26, 2021, more than 45 days from the alleged discriminatory incidents. The Agency further found that Complainant had knowledge of the applicable time limit based on several EEO trainings she had attended during her employment. The instant appeal followed. On appeal, Complainant, through her attorney, asserts that the Agency’s dismissal of her formal complaint is improper. Complainant asserts that she was not aware of the applicable time limits to initiate EEO contact and her facility did not have postings of the applicable time limit. Complainant asserts that she only became aware of the EEO process and the applicable time limit when she contacted an attorney in January 2021. Regarding the Agency’s assertion that Complainant was provided with relevant trainings, Complainant asserts that the Agency failed to provide sufficient evidence that the trainings covered the applicable time limit to initiate the EEO process. Moreover, Complainant asserts that around September 2020, she informed a supervisor of the alleged assault by P1, but that the supervisor did not provide information on the EEO process. Complainant notes that P1 subsequently pled guilty to two counts of assault of Agency employees and that at the plea hearing, P1 admitted to touching Complainant’s breasts. In response, the Agency requests we affirm its final decision dismissing Complainant’s complaint for untimely EEO Counselor contact. In addition, the Agency submits additional information on the EEO trainings Complainant completed during her employment. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. 2 While the Agency’s final decision listed the effective date of Complainant’s resignation as September 22, 2020, the record contains a copy of Complainant’s Notification of Personnel Action Form reflecting that her resignation was effective September 17, 2020. 3 2021003660 EEOC regulations provide that 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. In the instant matter, Complainant contacted an EEO Counselor on January 26, 2021, approximately four months after her resignation on September 2020. However, Complainant, in her formal complaint and in an affidavit, asserts that around September 2020, she informed one of her supervisors of the alleged assault by P1 and that the supervisory official did not take any action and failed to provide her any information on the EEO process.3 Complainant further asserts that even after she informed the supervisor of the alleged assault, P1 continued to work at the facility. Here, Complainant asserts she was unaware of the time frame for initiating EEO counseling contact and requests that her delay in doing so be excused. We acknowledge that the record reflects that the Agency provided several EEO trainings during Complainant’s employment which covered the applicable time limit. Moreover, the record reflects that one of the trainings Complainant completed during her employment provided that contacting a supervisor (rather than an EEO Counselor) would not constitute initiating the EEO process. However, the Commission has found that contact with an Agency official who was not an EEO Counselor, but who was “logically connected with the EEO process,” was sufficient to constitute EEO contact notwithstanding the fact that a complainant apparently was aware of the EEO process. See George v. Dep’t of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Furthermore, the Commission has found that in the case of sexual harassment, contact with a supervisory official, may be sufficient to constitute EEO contact. See Buckli v. Dep’t of the Army, EEOC Request No. 05970223 (Oct. 8, 1998) (citing Landmesser v. Dep’t of Housing and Urban Develop., EEOC Request No. 05920835 (May 6, 1993)). Under the circumstances of this case, we find that Complainant’s contact with a supervisory official around September 2020, was sufficient to constitute EEO contact since Complainant put the Agency on notice of her allegations of sexual harassment. Complainant alleges the harassment was ongoing from April 2019 until her resignation (alleged constructive discharge) in September 2020. Based on the foregoing and the specific circumstances herein, we find that Complainant timely initiated EEO contact regarding the matters set forth in the formal complaint. We REVERSE the Agency’s final decision dismissing Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. 3 The Agency does not expressly contest or provide documentation clearly contradicting Complainant’s assertion that she informed a supervisor in September 2020, of the alleged assault by P1. 4 2021003660 ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 5 2021003660 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 6 2021003660 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 September 13, 2021 Date Copy with citationCopy as parenthetical citation