U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite W,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120170318 Agency No. 200405122016103734 DECISION Complainant timely appealed to this Commission from the Agency's October 6, 2016 dismissal of 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 At the time of events giving rise to this complaint, Complainant worked as a Purchase Agent for Prosthetics (GS-7) at the Agency's VA Medical Center in Perry Point, Maryland. On June 24, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of national origin (African) and reprisal for prior protected EEO activity when: 1. In June 2012, her supervisor ("S1"), Supervisory Purchase Agent for Prosthetics, embarrassed her when she stated, "Your patients do not understand you because you talk too fast and your accent gets in the way;" 2. On April 20, 2013, S1 failed to assist her when the fax machine stopped working; 3. On April 28, 2015, S1 yelled, "You do not come here to collect a paycheck for doing nothing" and instructed her to complete 32 assigned tasks; and 4. On October 29, 2015, she received a proposal Letter of Removal from S1. Complainant alleges that S1 has subjected her to ongoing harassment since 2012, and that S1 bullies and "targets" her specifically by holding her to different standards and treating her more harshly than her America-born coworkers. For instance, if one of Complainant's coworkers had a problem using a fax machine, Complainant alleges that S1 did not question the coworkers' proficiency in using the equipment and was quick to help, if necessary, providing alternate means of delivery, such as overnight mailing materials. The fax machine referenced in the April 20, 2013, allegation was dedicated for orders to a particular vendor and was constantly jammed or malfunctioning, preventing Complainant from submitting documents and delaying orders to that vendor. When Complainant asked S1 for assistance, she alleges that S1 accused her of being unable to operate a fax machine and rather than provide alternate methods for delivering the order documentation, S1 blamed Complainant for the resulting delays. Complainant also alleges that S1 undermines her performance by assigning an unreasonably heavy workload, and pressuring her to close pending or incomplete orders, in violation of Agency policy. Regarding the April 28, 2015 allegation, the record includes a statement from a witness, who was so concerned when she overheard S1 repeatedly shout "Just do your Job" at Complainant in a "very degrading and demeaning tone," that she reported it to her supervisor. This incident, along with the EEO training she received on May 1, 2015, inspired Complainant to seek EEO counseling. Complainant raised her first three claims with her "Local EEO Office," also referred to as the facility EEO Office on May 6, 2015. Although Complainant attempted to file a complaint, her EEO contact informed her that they could only provide mediation services, and it appears Complainant did not pursue claims 1, 2, and 3 further until May and June 2016. On October 29, 2015, Complainant received the proposed removal letter for "unacceptable performance," which she appealed with the assistance of counsel. The Director issued a letter reversing the proposed removal, stating the charges were not sustained. On appeal, Complainant asserts that she did not visit the facility EEO Office on May 16, 2016 intending to raise the October 29, 2015 allegation, but to obtain documents from her previous attempt to file an EEO Complainant. However, this time she contacted the facility EEO Office, for reasons undisclosed in the record, Complainant was contacted by an EEO Counselor from the Office of Resolution Management ("ORM") who provided pre-complaint counseling for all four claims and provided the necessary forms to file her formal complaint. The Agency cites May 16, 2016, as the date of Complainant's first EEO contact. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides 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. 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 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. Under 29 C.F.R. §1614.105(a)(2), 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. It is well established that a complainant satisfies the requirement of counselor contact by contacting an agency official "logically connected" with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (Jul. 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, Complainant satisfied the EEO Counselor contact requirement on May 6, 2015 even though she did not contact the Office of Resolution Management ("ORM") as dictated in the Agency's EEO regulations. We find that an EEO office within the facility, which Complainant reasonably considered her "Local EEO Office" to be logically connected to the EEO process. Complainant also exhibited an intent to begin the EEO process multiple times within the 45 day limitation period in phone calls and emails with the facility EEO office's EEO Assistant ("EA"). Complainant believed EA would file an EEO Complaint on her behalf, but on May 21, 2015, EA referred her to a union representative instead. Aware of the time limitation and that she could not pursue an EEO complaint through the Union, Complainant contacted EA again specifying that she wanted to file a complaint. Complainant alleges, and the record supports, that the only option EA provided to her was mediation between Complainant and S1, facilitated by EA and a union representative, which Complainant declined. The Agency argues that Complainant's contact with the facility EEO office cannot be considered EEO Counselor contact for timeliness purposes because Complainant was aware that she needed to contact an EEO Counselor within ORM to initiate an EEO complaint. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). The Agency has not met this burden with respect to Complainant's knowledge that she had to contact ORM. The training documents in the record do not specify this information and although the Agency references an affidavit by the EEO Manager confirming Complainant was aware that EEO Complaints are to be brought to ORM, the affidavit is not in the record. Notwithstanding the ORM requirement, we note that Complainant states that she went to the facility EEO office again on May 16, 2016 to retrieve her documents, which the Agency considers EEO contact. We find this inconsistency and the demonstrated lack of clarification from individuals in a position to direct Complainant to ORM sufficient to excuse Complainant from pursuing her initial complaint further prior to May 16, 2016. See Myers v. Dep't of the Army, EEOC Appeal No. 0120120759 (May 1, 2012) (Complainant's delay should be excused when her EEO counselor first advised her to pursue her complaint with another office.) Claims 1, 2, and 3 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." EEOC Compliance Manual, Section 2, Threshold Issues al 2 - 75 (revised July 21, 2005) referencing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). For the reasons stated above, we find May 6, 2015 to be the date Complainant initiated EEO contact. Hence, Complainant timely raised Claim 3, which allegedly occurred on April 28, 2015 with an EEO Counselor. As Complainant is raising a harassment complaint, Claims one and two are also considered timely under Morgan. Claim 4 The 45 day limitation period for Claim 4 was triggered on October 29, 2015, when Complainant became aware of the alleged discriminatory act, a Letter of Proposed Removal. There is no evidence that Complainant sought EEO counseling with the facility EEO Office, ORM, or any other office logically connected to the EEO process. Claim 4 was properly dismissed under 29 C.F.R. § 1614.107(a)(2) for untimely contact with an EEO Counselor. CONCLUSION Accordingly, the Agency's final decision dismissing Claims 1, 2, and 3 of Complainant's complaint is REVERSED, and the Agency's final decision dismissing Claim 4 is AFFIRMED. Claims 1, 2, and 3 are hereby REMANDED in accordance with the Order below. ORDER (E1016) 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 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. 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 (M0416) 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 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. The requests 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 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 March 9, 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 0120170318 7 0120170318 8 0120170318