2020001695•EEOC Appeal 2020001695
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vernia M., 1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020001695 Agency No. 200H-0631-2019104207 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 5, 2019, 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 At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant, GS-6, at the Agency’s VA Central Western Massachusetts facility in Leeds, Massachusetts. On September 30, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity when: 1. the Agency collaterally attacked a decision by the Department of Labor’s (DOL) Office of Workers Compensation Programs (OWCP) when her medical records that were maintained by the OWCP were accessed and she was offered a position that the OWCP had previously found unsuitable for her; and 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.
2020001695 2 2. On April 24, 2019, Complainant was notified that her health insurance had been cancelled; 3. On June 7, 2019, Complainant was notified that her health insurance was still canceled, effective March 17, 2019; and 4. On July 7, 2019, Complainant was threatened with loss of benefits of employment if she did not accept a position as a Medical Administrative Assistant. The Agency dismissed the complaint in its entirety. It dismissed claims (1), (3), and (4) pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim; and claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely contact with an EEO counselor. The instant appeal followed. ANALYSIS AND FINDINGS Failure 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). With respect to claim (1), the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). Without allegations of other instances of discrimination, this claim is outside of EEOC jurisdiction and this is not the proper forum for Complainant to have raised this issue. See e.g., Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC Appeal No. 0120100241 (Oct. 5, 2010). Thus, we find dismissal of this claim was proper. With respect to claim (4), we also find Complainant has failed to state a claim. Claim (4) alleges that Complainant was threatened with loss of benefits of employment if she did not accept a position as a Medical Administrative Assistant. However, there is no evidence that Complainant has suffered an adverse action with respect to this allegation.
2020001695 3 The Commission has held that when verbal remarks have no accompanying concrete agency action, these remarks do not state a claim. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No. 05940695 (February 9, 1995). Therefore, we find that this claim also does not state a viable claim of discrimination or unlawful retaliation. Untimeliness 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 personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 C.F.R. §1614.107(b) provides, in pertinent part, that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §1614.105, unless the agency extends the time limits in accordance with 29 C.F.R. §1614.604(c). EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits are subject to waiver, estoppel and equitable tolling. With respect to claims (2) and (3), the record shows that Complainant’s health insurance was cancelled on March 17, 2019 and Complainant was notified of the cancellation on April 24, 2019. However, Complainant did not contact an EEO counselor until June 19, 2019, which is more than 45 days after she was notified. Therefore, claim (2), which alleges discrimination on April 24, 2019, when Complainant learned of the cancellation, is untimely. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). Complainant has failed to offer sufficient justification for extending or tolling the time limit. Therefore, we find dismissal of this claim on this basis was proper. With respect to claim (3), we agree with the Agency that Complainant has failed to state a claim. Complainant had already been notified of the cancellation of the insurance on April 24, 2019, as discussed in claim (2). The allegation that Complainant was notified that the health insurance was still canceled does not allege a present harm or loss with respect to a term, condition, or privilege of employment. The claim, as written, without more, simply does not state a viable claim of discrimination or unlawful retaliation. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
2020001695 4 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 (S0610) 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. 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.
2020001695 5 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 September 3, 2020 Date
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