U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120181343 Hearing No. 520-2016-00473X Agency No. 200H05182015103757 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Equal Employment Opportunity Commission Administrative Judge (AJ) decision dated February 5, 2018, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-0610-05 at the Agency's Medical Center in the Patient Care Services, Nursing Services in Bedford, Massachusetts. Following an on-the-job injury and pursuant to a claim with the Office of Workers Compensation Programs (OWCP), Complainant provided a medical note dated May 24, 2013, indicating that her limitations were permanent. As a result, on August 24, 2014, Complainant was reassigned from her Registered Nurse position to the position of Health Technician in Audiology in the Rehabilitation Therapies Program within the same facility. Complainant asserted that she was never assigned to the Auditory position which was promised. She provided a note on April 1, 2015, stating that her medical restrictions had been lifted and sought a reassignment back to her Registered Nurse position. Complainant asserted that she had been in contact with the EEO Office during this process. Complainant resumed contact with the EEO Office on June 5, 2015. When the matter could not be resolved informally, on September 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic), sex (female), disability, and age (63) when: 1. On-going since August 26, 2014, the Agency has failed to accommodate Complainant's disability. 2. On August 24, 2014, she was converted to a lower paying position from a Nurse II to Health Technician. GS-4, and in June 2015, became aware that the position was permanent despite promises from management that the position was temporary and she would be restored to a Registered Nurse position. The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 8, 2018, the Agency filed a motion to dismiss the matter with the AJ, pursuant to 29 C.F.R. § 1614.107(a)(1) and 29 C.F.R. § 1614.107(a)(2). The Agency asserted that the complaint should be dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim because Complainant's allegations were a collateral attack on decisions by the Office of Workers Compensation Programs (OWCP). In addition, the Agency argued that Complainant indicated that she was aware that the reassignment was permanent in August 2014. As such, Complainant's contact on June 5, 2015, was well beyond the 45-day time limit for seeking EEO counseling. The AJ issued a decision summarily granting the Agency's motion to dismiss the complaint. The Agency adopted the AJ's decision. This appeal followed. On appeal, Complainant, through her attorney, argued that the Agency's motion to dismiss constituted a twisting of factual assertions. According to Complainant, the correct facts are as follows. She sustained an injury to her arm in March 2012, which was determined to be permanent. Complainant had been performing light duty work for years when Complainant met with the EEO Office in June 2014. The Agency presented Complainant with an offer in August 2014 for an OWCP-approved vacant position of Health Technician in Audiology. Complainant accepted the position and was reassigned, at least on paper, on August 24, 2014. However, Complainant argued that she was never sent to the new unit. Instead, she indicated that she was detailed out as a floating employee who was not performing her core duties. During this time, Complainant asserted that there was no Audiology department until mid-January 2016. Complainant claimed that she promptly complained to management that she was not in the Health Technician position as promised. On September 18, 2014, Complainant met with management and was told that her current status was "temporary" and that her Audiology position would be coming soon. She was supposed to receive training, but was not provided with any despite following up with management in October 2014 and the EEO Office in November 2014. By April 1, 2015, Complainant's medical restrictions were lifted and she could perform the full duties of her Registered Nurse position again. Complainant continued to perform "floating" assignments. Complainant contacted the EEO Counselor on June 4, 2015. Complainant argued that she has been denied a reasonable accommodation because she was never placed in the new assignment. As such, Complainant claims that the Agency has delayed providing her with any reasonable accommodation. Further, Complainant asserted that the accommodation provided in the interim was not effective as it exacerbated her medical condition and caused her pain. She also noted that the Agency admitted that the Auditory Department did not exist at the time of the offer in August 2014 and was not operational until mid-January 2016. Complainant never actually worked in that position. Complainant noted that she kept the EEO Manager informed of the situation. It became clear to her that after a year of allegedly being place in a position in a department that did not exist, she was not going to be placed in the promised position. Further, she argued that the Agency led her to believe that she would eventually occupy the offered position. As to the AJ's decision dismissing the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, Complainant argued that the complaint is not a collateral attack. Complainant indicated that she did not take issue with the Health Technician position, but that she was not actually provided with the position. She was willing to perform the position but was left in "limbo-land" by the Agency. Therefore, Complainant asserted that she was not challenging the OWCP process. As such, Complainant asked that the matter be remanded back to the AJ. ANALYSIS AND FINDINGS The Agency did not issue a final decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), because the Agency did not issue a final decision within forty days of receipt of the AJ decision, the AJ's decision is the final action of the Agency. Untimeliness EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Upon review of the record, we find that the AJ erred in dismissing the matter pursuant to 29 C.F.R. § 1614.107(a)(2). A review of the matter indicated that Complainant alleged that she was denied the reassignment she had been offered as a reasonable accommodation in August 2014. Since the reassignment, Complainant asserted that she has not been actually placed in that position. She alleged she was misled by the Agency into believing that she would eventually be placed in that position. However, when it became apparent to Complainant that she would not work in the Health Technician position, she contacted the EEO Counselor in June 4, 2015. The Commission has previously held that an agency may not dismiss a complaint based on Complainant's untimeliness, if that untimeliness is caused by the Agency's action in misleading or misinforming Complainant. See Wilkinson v. U.S. Postal Serv., EEOC Request No. 05950205 (Mar. 26, 1996), see also Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). Therefore, we determine that the AJ's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2) was not appropriate. Failure to State a Claim 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Upon review of the record, we find that the AJ's decision to grant the Agency's motion to dismiss the matter pursuant to 29 C.F.R. § 1614.107(a)(1) was not appropriate. Complainant alleged discrimination when the Agency failed to provide her with the work duties of her Health Technician position which she received following her OWCP claim. Complainant is not challenging the position's duties or the processing of the OWCP claim. We find that such a claim by Complainant is separate from the OWCP claim. Therefore, we find that the dismissal of the complaint was not appropriate. CONCLUSION The Agency's final action dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below ORDER The Agency is ordered to submit to the Hearings Unit of the EEOC's New York District Office a hearing request, a copy of this decision and the complaint file within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the remanded complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. in accordance with 29 C.F.R. § 1614.108. 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 June 5, 2018 __________________ 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 0120181343 7 0120181343