0120140346
10-03-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120140346
Agency No. 200H-0526-2013103489
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 4, 2013, 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.
BACKGROUND
During the period at issue, Complainant worked as a Restoration Technician Trainee at the Agency's James J. Peters Medical Center facility in Bronx, New York.
On July 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and religion (Judaism).
In its final decision dated October 4, 2013, the Agency determined that the formal complaint was comprised of the following claims:
Whether Complainant was subjected to a hostile work environment as evidenced by the following events:
1. From July 2012 through October 2012, the [named Dental Practice Chief] and the Trainee Program Supervisor, S1] regularly failed to provide Complainant with material and training in maxillofacial procedures;
2. On August 30, 2012, [S1] pointing at Complainant made several inappropriate anti-Semitic comments. Additionally, [S1] made inappropriate comments and drew several images of circles and obelisks, stating "that is the penis...that is the vagina...;"
3. On September 26, 2012, on Yom Kippur, [S1] assigned Complainant an usually large number of laboratory cases;
4. On September 28, 2012, [S1] refused to provide Complainant training, demanded she perform a moulage task although never taught the technique, and made numerous inappropriate comments about women;
5. On October 4, 2012, [S1] refused to provide Complainant any training and made several anti-Semitic remarks;
6. On October 22, 2012, [S1] threatened and taunted Complainant with stories about a sexual predator;
7. On October 23, 2012, [S1] refused to train Complainant, told her to "figure it out yourself", directed her to "experiment on veterans" and compared her to his wife in a derogatory manner. [S1] then compared Complainant to another VA employee while expressing "violent fantasies" about that employee. [S1] later laughed when another employee asked if he could "make impressions" of Complainant's breasts; and
8. On November 13, 2012, Complainant constructively resigned from her position.1
The Agency found that incidents 1, 3-5, and 7-8 are discrete acts and were not raised within the applicable time limit. Thus, the Agency dismissed these incidents on the grounds of untimely EEO Counselor contact. However, the Agency did include these incidents as part of Complainant's overall harassment claim. The Agency found that the incidents collectively set forth an actionable harassment claim. However, the Agency dismissed Complainant's hostile work environment claim on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant did not initiate EEO contact until June 18, 2013, outside of the applicable time period.
In addition, the Agency stated:
In reply to our request for an explanation for the delay in contacting an EEO Counselor, [Complainant] stated that [she] believed contacting the facility's EEO program Manager on November 14, 2012, met the criteria for timely contact. Since the Office of Resolution Management's (ORM's) inception in 1997, ORM removed the responsibility for processing EEO complaints from individual facility EEO Program Managers and centralized the responsibility under ORM. Because of this reorganization, the facility EEO Program Managers are not logically connected to the EEO complaint process; and therefore, their only obligation is to properly advise a prospective complainant on how to exercise their EEO rights, including who to contact, which...is ORM.
The instant appeal followed.
On appeal, Complainant requests that we reverse the Agency's final decision dismissing her complaint on the grounds of untimely EEO Counselor contact. Complainant asserts that she met with her facility's EEO Officer/Manager (EEO1) in November 2012, and was not informed that she would need to contact ORM to initiate an EEO complaint. In addition, Complainant submits Agency materials (a copy of the facility's EEO poster and a copy of a portion of the facility's employee handbook) indicating that EEO1 is one of the proper contacts to initiate the EEO complaint process. Complainant is also requesting that her complaint be amended to include additional claims, including a reprisal claim.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant is alleging that she was subjected to a hostile work environment which culminated in her constructive resignation. Thus, all the incidents set forth above are encompassed as part of Complainant's hostile work environment claim.
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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
The Agency improperly dismissed Complainant's formal complaint for untimely EEO Counselor contact. We are not persuaded by the Agency's assertion that Complainant's contact in November 2012, with EEO1 does not constitute the date on which Complainant initiated EEO contact. We find that the facility EEO poster, provided by Complainant on appeal, does not clearly set forth the proper contact to initiate the EEO complaint process. The EEO poster lists the 45-day time limit and provides the telephone numbers for both ORM and EEO1. We note that the poster also has the name of EEO1 and his picture. In addition, Complainant submits a copy of a portion of the employee handbook for this particular facility. Therein, under the section entitled "EEO Discrimination Complaint Process" the handbook informs employees to initiate the EEO process by contacting ORM or the Medical Center's EEO Officer. The record also contains training materials on the topic of sexual harassment. The materials contain EEO1's name, picture and phone number as the contact for more information or consultation on this topic. 2 Based on these circumstances, we find that Complainant's November 2012 contact with EEO1 constituted her initial EEO contact date.
As set forth above, Complainant is alleging a hostile work environment claim. The record reflects that several of the alleged incidents occurred within the 45 day period preceding her November 2012 contact. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2-72, (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Thus, Complainant timely initiated contact with respect to her hostile work environment claim.
Finally, Complainant seeks to amend the formal complaint to include additional claims. If Complainant wishes to amend her complaint to include additional claims, she should put this request in writing to the Agency's (VA) EEO Director or Complaints Manager. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO) MD-110, Chap. 5, Sect III(B) (1999).
Accordingly, 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.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (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 (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 (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
October 3, 2014
__________________
Date
1 We note that the record contains a letter from Complainant dated November 13, 2012, in which she resigned from her position. The record also contains a Notification of Personnel Action form for Complainant which lists Complainant's effective date of her resignation as January 11, 2013.
2 We strongly advise the Agency to consider revising the EEO facility poster and the EEO facility employee handbook at issue to clearly indicate the proper contact for initiating the EEO complaint process. In Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140863 (May 6, 2014), we also advised the Agency to consider revising this facility's EEO poster. The complainant in EEOC Appeal No. 0120140863 was the co-worker of the Complainant in the instant matter. We again advise the Agency to consider reviewing all EEO training material used at this facility to ensure that such material clearly indicates the proper contact for initiating the EEO complaint process.
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0120140346
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140346