U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lilian C,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171242 Agency No. 200H-0304-2016104635 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 25, 2016, 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. BACKGROUND During the period at issue, Complainant worked as a Supervisory Veterans Service Representative at the Agency's facility in Providence, Rhode Island. On October 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability. In its final decision, the Agency determined that Complainant's complaint was comprised of the following claims: A. On July 15, 2015, a named Director, made Complainant step down from her management position of Coach, to the position of Rating Quality Review Specialist (RQRS) in order to continue teleworking. B. From July 16, 2015 to March 2016, Complainant's requests to attend training for her new RQRS position were denied by a named Agency management employee. C. on August 4, 2015, Agency management told Complainant that training would be in-house and would only be refresher training, but no training ever occurred. D. On January 22, 2016, a named human resources specialist requested Complainant to provide medical documentation to substantiate her continued interim accommodation before Complainant could be authorized to travel to the RQRS training. E. On January 26, 2016, a named Agency manager informed Complainant she would not be allowed to complete her RQRS Challenge training if she did not provide medical documentation allowing her to travel. F. On June 16, 2016, a named Agency manager gave Complainant her FY 2016 performance evaluation, which was lower than she felt she deserved. In its final decision, the Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on August 10, 2016, outside of the applicable time period. The instant appeal followed. Complainant asserts that she initiated EEO contact on July 28, 2016, not August 10, 2016 as set forth by the Agency in its final decision. Complainant states that she received a performance rating on June 16, 2016 (incident F). Thus, she asserts that she timely initiated EEO contact with respect to the instant matter. Complainant asserts that the other incidents set forth in her EEO complaint each "played a role in the rating provided." In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. As an initial matter, upon review of the record, we find that Complainant is alleging that she was subjected to a hostile work environment by some members of Agency management based on her disability when she was provided with a performance rating which she believed was lower than she deserved, she was denied training, and she was forced to accept a reassignment to a non-supervisory position in order to continue her reasonable accommodation of teleworking. 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 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 of 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 2-75 (rev. July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). We find that Complainant initiated EEO contact regarding the instant matter on July 28, 2016, rather than on August 10, 2016, as set forth by the Agency. As part of her appeal, Complainant submits a copy of an email from an Office of Resolution Management staff member (O1) to Complainant dated August 10, 2016. Therein, O1 asserts "do you have a copy of your written complaint that I can possibly enter for assignment to a counselor...it shows that you called twice on [July 28, 2016] but there is no indication that a packet was sent to you." In a subsequent email to Complainant on August 10, 2016, O1 stated "I will also annotate in the complaint entry that you called ORM twice and what the results of that [were] so that you don't have any problems with timeliness." Based on the foregoing, we find that Complainant initiated EEO contact on July 28, 2016, when she called ORM twice. At least one of the incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's July 28, 2016 EEO contact. Specifically, Complainant on June 16, 2016 received a performance rating which she believes was lower than what she deserved (incident F). We therefore find that the Agency improperly dismissed Complainant's hostile work environment claim for untimely EEO Counselor contact. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint, defined herein as a hostile work environment claim, and we REMAND this matter to the Agency for further processing 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 (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 July 7, 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 0120171242 6 0120171242