Adriene B,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Aug 18, 2020

2020003600 (E.E.O.C. Aug. 18, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adriene B,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003600 Agency No. 200J-0553-2020101647 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 1, 2020, dismissing a formal 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 Sterile Processing Technician, GS 6 at the Agency’s John D. Dingell VA Medical Center in Detroit, Michigan. On January 6, 2020, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On April 20, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on disability. As summarized by the Agency, Complainant’s formal complaint consisted of the following matters: 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. 2020003600 2 1. Whether Complainant was discriminated against when on August 1, 2019, she received a notice that she would be transferred back to her unit due to the completion of an investigative interview. 2. Whether Complainant was subjected to a hostile work environment based on disability when: (a) since January 2019, Complainant was, “caught up in a tug of war” between belligerent managers; (b) in February 2019, Complainant learned that she was to be subjected to “corrective action;” (c) in March 2019, a supervisor physically bumped into her on three occasions; and (d) includes the following independently actionable claims: I. From April through August 2019, Complainant was not given light-duty in her unit and was instead transferred to work different positions as a reasonable accommodation. II. On October 2, 2019, Complainant submitted a Letter of Resignation due to her, “unbearably threatening” hostile work environment.2 In its May 1, 2020, the Agency dismissed Complainant’s formal complaint on two procedural grounds. First, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that Complainant was lodging a collateral attack on an administrative proceeding - the Agency’s internal investigation. Second, the Agency dismissed Complainant’s entire complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency found that Complainant’s initial EEO Counselor contact was January 6, 2020, which was well beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS 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. Here, the last discriminatory act Complainant alleges in her formal complaint involves a personnel action - her resignation from the Agency on October 2, 2019. 2 The record does not include a copy of Complainant’s resignation. 2020003600 3 Because Complainant’s resignation is a personnel action, Complainant had 45 days from the date of the personnel action, or until November 18, 2019,3 to timely contact an EEO Counselor. However, the EEO Counselor’s report reflects that Complainant initiated EEO Counselor contact on January 6, 2020, which was more than 45-days after she submitted her resignation on October 2, 2019. EEOC regulations provide that 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 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 his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). However, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We note that a copy of Complainant’s resignation is not included in the record. However, the record reflects that Complainant does not dispute that she resigned from the Agency on October 2, 2019. Rather, Complainant explained in the EEO Counselor’s report that on December 6, 2019, she was instructed to return to the office to re-sign her resignation and back-date it to October 2, 2019. Consequently, there is no dispute in the record that Complainant resigned on October 2, 2019, and, in turn, she was required to initiate EEO Counselor contact within 45 days from her resignation. Therefore, we find that the Agency properly dismissed Complainant’s formal complaint for untimely EEO Counselor contact. Because we affirm the Agency’s dismissal for untimely EEO Counselor contact, we need not address the Agency’s alternative procedural grounds for dismissing claim 1. CONCLUSION The Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact is AFFIRMED. 3 Because 45-days from October 2, 2019 fell on Saturday November 16, 2019, Complainant’s deadline was extended to the next business day on Monday, November 18, 2019. 2020003600 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. 2020003600 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 August 18, 2020 Date