U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jutta A.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120172048 Agency No. 200I05082017101376 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated April 24, 2017, 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 for the Agency in Decatur, Georgia. On March 9, 2017, the Agency emailed Complainant the Notice of Right to File an Individual Complaint of Discrimination (hereinafter referred to as "Notice"). The Notice informed Complainant that she had fifteen days from the date of receipt of the Notice in which to timely file a formal complaint. On the same day, Complainant responded, acknowledging receipt of the Notice, and requested that the Agency add two additional claims: that the Facility Director declined to mediate in her case; and that on February 2, 2017, the Facility Director denied Complainant's request to attend the Agency's ADPCS annual conference due to an Office of Accountability Review investigation. On March 28, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race, color, and in reprisal for prior protected EEO activity when: 1. on November 10, 2016, during a telephone conference meeting, the VISN 7 Network Director berated Complainant in front of other management officials; 2. on December 1, 2016, the Facility Director gave Complainant a letter which removed her from all National Committees and work groups; 3. on December 2, 2016, after Complainant discussed with the Facility Director that fact the Facility Director had a "harsh communication style/inconsistencies" which impacted Complainant and others; the Facility Director became angry and vengeful towards Complainant; 4. on December 12, 2016, the Facility Director called the Agency police about a letter missing from her desk and implicated Complainant; 5. on December 12, 2016, after Complainant met with the Facility Director to explain why she took the letter from the Facility Director's desk, the Facility Director replied, "I do not want to talk to you, get up and leave my office, you can come back tomorrow, and I will tell you what the next step is."; 6. on December 13, 2016, the Facility Director placed Complainant on telework assignment (virtual detail), and stated she was under investigation and would be notified of the outcome; 7. on December 19, 2016, the Facility Director sent a memorandum to staff and managers of VISN 7 that designated an employee (E1) as the "Interim Associate Director, Nursing/Patient Care Services," until further notice; 8. from December 20, 2016 and "ongoing", the Facility Director permitted E1 to use the title "Interim Associate Director'' instead of "Acting Director: Nursing/Patient Care Services; 9. on December 27, 2016, Complainant received a certified letter from the Facility Director, which contained a Performance Plan dated December 21, 2016, while Complainant was on Family Medical Leave Act status until January 3, 2017; 10. on an unspecified date, the Facility Director declined to mediate in her case; and, 11. on February 2, 2017, the Facility Director denied Complainant's request to attend the Agency's ADPCS annual conference due to an Office of Accountability Review investigation. On April 24, 2017, the Agency issued the instant final decision. Therein, the Agency dismissed Claims 1 - 9 on the grounds that the formal complaint was not timely filed, pursuant to 29 C.F.R. § 1614.106(b). Specifically, the Agency determined that Complainant received the Notice on March 9, 2017, but that she did not file the formal complaint until March 28, 2017. Regarding Claims 10 and 11, the Agency dismissed both claims for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined discussions and actions regarding mediation fail to state a claim, and that an action taken against Complainant based on an Office of Accountability Review is not a basis of discrimination for which the Commission has jurisdiction. The instant appeal followed. ANALYSIS AND FINDINGS Untimely Filed Complaint Pursuant to EEOC Regulation 29 C.F.R. § 1614.106(b), a complaint must be filed within 15 days of the receipt of notice of the right to file a complaint. When confronting untimeliness issues, the Commission has consistently held that in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by their condition that he or she is unable to meet the regulatory time limits. See May v. Department of Transportation, EEOC Request No. 0120091792 (June 18, 2010). In this case, Complainant has provided sufficiently persuasive evidence that she had become so mentally incapacitated during the relevant time period that she was rendered unable to meet the deadline for filing a timely formal complaint. Here, she provided medical documentation from two medical professionals who noted that Complainant was experiencing "debilitating anxiety symptoms and was unable to complete and submit a formal complaint by the 15-day deadline." One note specified that the medical provider had been treating Complainant for: severe anxiety stemming from workplace harassment and bullying since December 2016 and I hereby attest to [Complainant's] incapacitation between the time she filed her initial EEO complaint [received EEO counseling] and the deadline for the formal complaint to be submitted. During that highly stressful time, [Complainant] was experiencing crippling anxiety associated with various physical symptoms. She also developed and was treated for a respiratory tract infection that she developed during that time. The 15-day period between her receipt of the letter and the deadline for response was a highly stressful time for her as she was facing returning to work in a hostile environment while dealing with debilitating levels of anxiety. Given these particular circumstances, and the short amount of time which elapsed between the expiration of the fifteen-day limitation period and the Agency's receipt of the formal complaint - just four days - we determine that there is sufficient justification for exercising our discretion to excuse the delay in the filing of the formal complaint. See 29 C.F.R. § 1614.604(c). Failure to State a Claim: Claims 10 and 11 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) The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Regarding Claim 10, that that she was discriminated against when the Facility Director declined to mediate with her, we determine that the Agency correctly determined that Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. Regarding Claim 11, that she was discriminatorily denied the opportunity to attend the Agency's ADPCS annual conference, we find that the Agency improperly dismissed this claim for failure to state a claim. Here, Complainant is alleging that she was denied a privilege of her employment - specifically, the ability to attend an annual conference by the alleged responsible management official, the Facility Director. Therefore, we determine that Complainant has addressed a personal loss or harm to a term, condition or privilege of employment for which there is a remedy. We determine further that the subject claim has been articulated with sufficient clarity. Accordingly, we AFFIRM the Agency's final decision dismissing Claim 10. However, we REVERSE the Agency's final decision dismissing Complainant's formal complaint in Claims 1-9, and 11, and we REMAND these matters to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims (Claims 1 - 9 and 11) 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 (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. Carlton M. Hadden, Director Office of Federal Operations September 22, 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 0120172048 7 0120172048