0120111935
09-26-2012
Wilma Taylor, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Wilma Taylor,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111935
Agency No. 2003-0586-2010104568
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January 19, 2011, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Support Clerk at the Agency's G.V. Sonny Montgomery Medical Center in Jackson, Mississippi. Complainant filed a formal complaint dated December 10, 2010, alleging that the Agency subjected her to discrimination on the basis of disability when:
1. On December 23, 2009, Complainant's request for an equitable position was denied.
2. On April 2, 2010, Complainant's supervisor (S1) denied her a reasonable accommodation.
3. On November 4, 2010, during mediation, the job criteria for a position was changed which caused the Agency not to settle the complaint.
The Agency dismissed issues (1) and (2), pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated that Complainant did not initiate contact with an EEO Counselor until August 24, 2010, which was beyond the applicable limitations period. The Agency noted Complainant was aware or should have been aware of the applicable time limits for contacting an EEO Counselor.
Additionally, the Agency dismissed issue (3), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that participation in mediation and settlement of a complaint is strictly voluntary and confidential. The Agency noted that settlement of a complaint is not guaranteed. The Agency determined that comments made during mediation that cause an Agency not to settle the complaint, cannot give rise to an EEO complaint.
On appeal, Complainant provides a detailed account of her employment history with the Agency. Complainant acknowledges that she signed her paperwork late, but she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly. She also states that she broke out in the shingles and started suffering from Post Traumatic Stress Disorder (PTSD).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the 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.
The record reveals that Complainant attended EEO related training when she attended the New Employee Training Orientation on July 15, 2009, Prevention of Sexual Harassment training on July 15, 2009, No Fear Act training on July 15, 2009, ADR Mediation training on July 15, 2009, and EEO training on July 15, 2009. The record reveals that these courses discussed the EEO complaint process, including the requirement to contact an EEO Counselor within the applicable 45-day time frame.
With regard to issue (1), the record discloses that the alleged discriminatory event occurred on
December 23, 2009. With regard to issue (2), the record reveals that on July 31, 2009, Complainant requested that Dragon Naturally Speaking (DNS) Equipment be installed on her computer as a reasonable accommodation for her claimed disability. The record reveals that on September 4, 2009, the Agency installed DNS on Complainant's computer in the back of the unit. Complainant stated that she felt the Agency did not provide her a reasonable accommodation because the Agency did not provide DNS on the reception area computers which she states she also had to use. The record reveals that Complainant submitted a resignation letter to the Agency on March 16, 2010, with an effective date of resignation on April 4, 2010. Although Complainant listed April 4, 2010, as the date she was denied accommodation, we note that the denial of accommodation was an ongoing issue for Complainant from September 2009, through her last day of employment with the Agency on April 4, 2010.
Complainant alleged that she contacted the EEOC Office in Birmingham, Alabama during the last week of December 2009 and again in January 2010, regarding her denial of accommodation claim. Complainant stated that she received a letter from the EEOC in January 2010, advising her to contact the Agency in reference to her denial of accommodation claim. The record does not contain a copy of any letter from the EEOC.
The record reveals that on January 21, 2010, Complainant requested EEO counseling regarding a claim that she was subjected to harassment based on her disability beginning on January 11, 2010 (Agency No. 2003-0586-2010101425). There is no indication that Complainant raised issues (1), (2), or (3) with an EEO Counselor during the processing of Agency No. 2003-0586-2010101425. Nor does Complainant contend on appeal that she raised the issues in the present complaint during the processing of her prior complaint.
Complainant contends that in February 2010, she contacted the EEO Program Manager regarding her concerns of discrimination. The record contains a Report of Contact from the EEO Case Manager. The EEO Case Manager stated he spoke with the EEO Program Manager and that the EEO Program Manager remembered meeting with Complainant. The EEO Program Manager stated the conversation concerned an adverse relationship between Complainant and a co-worker. The EEO Program Manager stated that when an employee contacts him concerning an EEO complaint, he advises them that he is not an Office of Resolution Management (ORM) EEO Counselor and provides the individual an explanation of the complaint process. The EEO Program Manager stated he also advises them that ORM's Central Plains Operations has jurisdiction for processing EEO complaints for the Medical Center. The EEO Program Manager stated he also provides each individual a pamphlet outlining the complaint process which advises that "If you feel that you have been discriminated against and wish to file an EEO complaint, you must contact an ORM counselor within 45 calendar days of the alleged incident."
Upon review, we find Complainant had knowledge of the applicable time frame for initiating EEO Counselor contact. Although the alleged discriminatory incidents occurred with regard to issue (1) on December 23, 2009, and with regard to issue (2) beginning in September 2009, we find Complainant did not initiate EEO Counselor contact until August 10, 2010. While the record reveals that Complainant did contact the EEO Program Manager in February 2010, we find no evidence she exhibited an intent at that time to initiate the EEO complaint process regarding issues (1) and (2). In addition, we note that with regard to issue (2), Complainant stated that she contacted the EEOC Birmingham Office in December 2009 and January 2010, with regard to her claims that she was denied a reasonable accommodation. However, Complainant provided no evidence concerning this alleged contact. Moreover, we note that as of January 2010, Complainant had another EEO matter in the informal counseling process; however, there is no indication that she raised the present issues in that other complaint.
Finally, we note that on appeal, Complainant acknowledges that she was late in filing; however, she states that she was under extreme stress at that time. Specifically, Complainant notes that during this time, her brother died unexpectedly in December 2009. There is no evidence in the record that shows that the time limit should be tolled over seven months due to the death of Complainant's brother. We note that Complainant claims she was attempting to pursue her claims in January and February 2010, which further undercuts her claim of incapacitation. She also states that she broke out in the shingles and started suffering from PTSD. There is no documentation in the record supporting Complainant's argument that PTSD caused her to miss the time limit for contacting an EEO Counselor. Upon review, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We have consistently held in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Service, EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992). We find Complainant has not presented persuasive evidence that she was so incapacitated by her condition that she was unable to meet the regulatory time limits.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a).
Upon review, the Commission finds that issue (3) was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. It appears Complainant is challenging statements made during settlement negotiations. The Commission has held settlement negotiations are to be treated as confidential and privileged in order to facilitate a candid interchange in order to settle disputes informally. Therefore, Complainant cannot bring a new complaint regarding statements made during mediation. Moreover, to the extent issue (3) does not concern settlement negotiations, we find this issue was properly dismissed for failure to state a claim under the EEOC regulations because Complainant failed to show that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2012
__________________
Date
2
01-2011-1935
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111935