Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 20, 2013

0120113565 (E.E.O.C. Aug. 20, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120113565

Agency No. 2004-0652-2011-101364

DECISION

Upon review, the Commission finds that the Agency’s decision dated June 22, 2011,
dismissing Complainant’s complaint due to untimely EEO Counselor contact and for stating
the same claim previously raised is proper pursuant to 29 C.F.R. §§ 1614.107(a)(2) and (1),
respectively. For the following reasons, we AFFIRM the Agency’s decision.

BACKGROUND

In its decision, the Agency identified Complainant’s complaint as alleging discrimination based
on race (Black), disability, and in reprisal for prior EEO activity when: (1) during April 2010,
her supervisor informed her that she was not qualified to participate in the pilot telework
program and stated that she had not met accuracy standards for the year; and (2) on November
23, 2010, the supervisor did not approve her participation in the pilot telework program.
Complainant did not contest the Agency’s framing of her complaint.

On June 22, 2011, the Agency issued its decision dismissing claim (1) due to untimely EEO
Counselor contact. Specifically, the Agency stated that Complainant did not contact an EEO
Counselor regarding the incident until January 5, 2011, which was beyond the 45-day time
limit. The Agency also dismissed claim (2) for stating the same claim since Complainant
alleged the same matter in claim (1), i.e., she was informed in April 2010, that her coding
production standards had not been met for the year and she could not participate in the
telework program.

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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory
event, or the effective date of an alleged discriminatory personnel action. In claim (1),
Complainant alleged that she was denied to participate in the pilot telework program in April,
2010. The record indicates that Complainant, however, did not contact an EEO Counselor
regarding the incident until January 5, 2011, which was beyond the 45-day time limit set by
the regulations. On appeal, Complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor. Complainant does not
argue that she was requesting a reasonable accommodation. Thus, we find that the Agency
properly dismissed claim (1) due to untimely EEO Counselor contact. 29 C.F.R.
§1614.107(a)(2).

Regarding claim (2), the Agency indicated that Complainant alleged the same telework issue
about which she was previously informed in April 2010, described in claim (1). The Agency
stated that Complainant was previously made aware of her non-eligibility to participate in
telework because she did not meet coding production standards for the year. The Agency
indicated that since their initiation of the pilot telework program, described in claim (1), the
program had not yet been reassessed by management. Upon review, we find that since claim
(2) did not involve a new separate incident, the Agency properly dismissed it for stating the
same claim. 29 C.F.R. § 1614.107(a)(1).

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
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Part 1614

(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

August 20, 2013
Date