0120171955
09-08-2017
Dino V,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Dino V,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171955
Agency No. 200400012017100080
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 9, 2017, dismissing his 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 a Senior Counsel, GS-13 at the Agency's facility in Washington, D.C.
Complainant contacted the EEO Counselor regarding his claim of unlawful discrimination. When the matter could not be resolved informally, on December 16, 2016, Complainant was issued a Notice of Right to File his formal complaint (Notice). Complainant received the Notice on December 19, 2016.
On January 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when:
1. Whether Complainant was discriminated based on disability when on June 29, 2016, Complainant's verbal request for reasonable accommodation was not granted.
2. Whether Complainant was discriminated based on disability when on September 21, 2016, the Chief, Veterans Law Judge (Chief) counseled Complainant for Conduct and Suitability for Continued Employment.
3. Whether the Complainant was discriminated based on disability when on September 26, 2016, the Deputy Vice-Chair terminated Complainant during probationary period, effective September 30, 2016.
4. Whether the Complainant was discriminated based on disability when on September 28, 2016, he was subjected to Constructive Discharge when he learned he was being terminated effective September 30, 2016.
5. Whether the Complainant was discriminated based on disability when on unidentified date, Complainant was denied training on how to create a board decision.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for filing the formal complaint in an untimely manner. The Agency noted that Complainant received the Notice on December 19, 2016, but filed the formal complaint on January 5, 2017, beyond the 15 calendar time limit. The Agency noted that it requested additional information from Complainant and his attorney (Attorney). The Attorney indicated that the EEO Counselor had mutually agreed to extend the time limit to January 5, 2017. The Agency found that the Attorney's argument was not persuasive and pointed to the Notice clearly stating that Complainant had 15 calendar days from the date of receipt to file the formal complaint. The Agency determined that the formal complaint was filed beyond the time limit and dismissed the complaint as a whole.
This appeal followed. On appeal, the Attorney reiterated his assertion that they relied on the extension of time agreed upon by the EEO Counselor. He noted that the parties were engaged in informal resolution of the complaint at the time. As such, they sought the extension to try to resolve the matter. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling.
The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming the 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).
The Attorney has asserted that the EEO Counselor was aware of when Complainant had opened the Notice and agreed to extend the filing date for the formal complaint to January 5, 2017. The Attorney and Complainant filed the formal complaint on this date based on the EEO Counselor's extension. The Agency did not challenge the Attorney's assertions. Based on the record, we find that the Attorney and Complainant relied upon the misinformation provided by the EEO Counselor. As such, we determine that the Agency's dismissal is not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 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 (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
September 8, 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.
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