0120171943
10-17-2017
Edward W,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
Edward W,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171943
Agency No. 200P03772016104343
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 7, 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 Veterans Service Representative at the Agency's Regional Office facility in North San Diego, CA.
On June 30, 2016, Complainant contacted the EEO Counselor alleging discrimination. The matter was before the EEO Counselor. At the same time, the Agency and Complainant with his representative (Attorney) were engaging in mediation. Complainant requested alternative dispute resolution to resolve his informal complaint, and a mediation session was scheduled for September 15, 2016. On September 20, 2016, the Attorney received an email from the EEO Counselor seeking a status update related to mediation. The Attorney indicated that the parties are still involved in mediation.
On September 28, 2016, Complainant and the Attorney received an email from the EEO Counselor stating the informal EEO Counseling had closed. The EEO Counselor stated, "It is my understanding that mediation did not result in resolution, as such, the informal process must conclude and the Notice of Right to File and Complaint of Employment Discrimination (VA Form 4939) must be issued." The Attorney responded to the email to the EEO Counselor correcting him in his statement regarding mediation and informing him that they were still awaiting the Agency's representative's response to their settlement offer. As such, the Attorney believed that the Notice was issued in error.
The parties continued to engage in mediation. Complainant and the Attorney received emails from the Agency's representative indicating that the informal process of resolving the matter was still ongoing. Based on the ongoing mediation, Complainant and the Attorney anticipated the EEO Counselor would issue a new Notice of Right to File. On January 20, 2017, when Complainant had not received anything, he contacted the EEO Counselor informing him of the failure to resolve the matter through mediation and inquiring about a final interview. The EEO Counselor directed Complainant to proceed with his formal complaint and provide an explanation for the confusion in filing the formal complaint.
On February 6, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when: Complainant sought and requested a reasonable accommodation since March 2, 2016, through on or about July 1, 2016, which was not properly provided or implemented to include interim accommodations while complainant was on a Leave Without Pay (LWOP) status. The Attorney provided a letter explaining the confusion regarding the final interview and the issuance of the Notice while the matter was still pending mediation. The Attorney asked that the Agency accept the complaint in light of error.
The Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that Complainant and the Attorney received the Notice of Right to File a formal complaint on September 28, 2016, via e-mail. Complainant and the Attorney were informed of the 15 calendar time limit. However, Complainant and the Attorney did not file the formal complaint until February 6, 2017, 116 days after the filing deadline of October 13, 2016. The Agency noted that Complainant and the Attorney provided reasoning for the delay in filing the formal complaint. The Agency determined that the reasons provided did not rise to the level of incapacitation, active military duty status or natural disaster or catastrophic event as envisioned by the EEOC for tolling time. Accordingly, the Agency found no basis to permit the waiver of the 15-day filing deadline and the Agency dismissed the complaint as a whole.
This appeal followed. Complainant and the Attorney argued that they were under the impression that the matter was still in the informal process while the parties were trying to obtain resolution through mediation.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so.
Here Complainant and the Attorney received the Notice of Right to File on September 28, 2016. Upon receipt of the Notice, the Attorney responded to the EEO Counselor that the matter was still being mediated. Based on the Attorney's email to the EEO Counselor, Complainant and the Attorney indicated that they were under the impression that Complainant would have more time to complete mediation with the Agency before he would be required to file his formal complaint. 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 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). Therefore, we find that the dismissal of the complaint as a whole was 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 for further processing 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
October 17, 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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