[Redacted], Shaniqua W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2022000887 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaniqua W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000887 Agency No. 200I-0733-2021105253 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 15, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and 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 Reimbursable Billing Technician at the Agency’s facility in Orlando, Florida. On October 8, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (African American), disability, and in reprisal for prior protected EEO activity. In its November 15, 2021 final decision, the Agency determined that the formal complaint was comprised of a harassment claim comprised of numerous incidents. The Agency dismissed the formal complaint on the grounds that her formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complaint (Notice) via email on September 15, 2021, but did not file her formal complaint until October 8, 2021, outside of the applicable time limit. 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. 2022000887 2 The Agency further found that Complainant requested the Agency add the bases of whistleblower and abuse of authority to her formal complaint. The Agency found that these bases are not within the jurisdiction of the Commission. The instant appeal followed. On appeal, Complainant asserts that she has undergone mental health treatment for several months and the medication has altered her ability to process or retain information. Complainant submits, on appeal, medical documentation regarding her medical condition. In response, the Agency requests that we affirm its final decision dismissing Complainant’s complaint. The Agency asserts that Complainant did not present any evidence in support of her claims that she has been under treatment and medication that impairs her ability to comprehend. In addition, the Agency asserts that Complainant has had a representative in this matter. The Agency asserted “[e]ven assuming arguendo that Complainant’s ability to understand specific instructions and her ability to read was impaired, it’s fair to conclude that [Complainant’s representative] was not affected by whatever allegedly affected [Complainant’s] ability to comprehend.” Agency Brief at 3. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c). The Agency improperly dismissed Complainant’s complaint on the grounds her formal complaint is untimely filed. The Agency sent the Notice of Right to File (Notice) to Complainant via email dated September 15, 2021. Complaint File at 108. Therein, the EEO Counselor stated that he was issuing Complainant the Notice and to respond to his email to request the password for the attached Notice so it could be released to Complainant. Id. While the record contains a notification that the email was delivered to Complainant’s email, the record does not reflect that Complainant actually received the email containing the Notice on that date. Complaint File at 28. Rather, the record contains an email from Complainant to the EEO Counselor dated September 20, 2021 in which Complainant confirmed the EEO Counselor’s email and requested the password for the Notice. In an email from Complainant to the EEO Counselor dated Thursday, October 7, 2021, Complainant stated that she never received the password for the Notice and requested it from the EEO Counselor again.2 Complaint File at 105. 2 In an email from Complainant to an EEO Case Manager dated November 16, 2021, Complainant stated in pertinent part that she requested the password from the EEO Counselor but did not receive it until days later. Complaint File at 103. 2022000887 3 The EEO Counselor responded on October 7, 2021 via email and sent the password. The EEO Counselor stated “please submit before Friday close of business.” Complaint File at 105. Complainant filed her formal complaint, the next day, October 8, 2021. Complaint File at 39. As set forth above, Complainant did not receive the password for the Notice until October 7, 2021, the day before she filed the formal complaint and the EEO Counselor informed her to submit it by October 8, 2021, based on these circumstances, we find Complainant’s formal complaint is timely filed. Even assuming arguendo that Complainant’s formal complaint was filed outside the time period, we find an extension of the time limit is warranted in the instant matter. Complainant, on appeal, asserts that she had been treated for a mental health condition which altered her ability to process and retain information. The Commission has consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated that she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 0598Q475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Complainant has met this standard. Complainant submits, on appeal, an FMLA form signed by a certified Physician Assistant dated August 24, 2021. Therein, the Physician Assistant asserted that Complainant would be incapacitated for a continuous period from June 16, 2021-November 1, 2021 (during the time period involving the Notice and the filing of the formal complaint) and would be receiving treatment for significant anxiety due to work-related stress. The Physician Assistant asserted that Complainant is not able to analyze, make decisions, and gather/collect information. Based on the foregoing, we find even assuming arguendo that Complainant’s formal complaint was untimely filed, these circumstances warrant an extension of the applicable time limit.3 Finally, regarding the basis of reprisal for whistleblower activity/abuse of authority, we find that the Agency properly dismissed this basis. The Commission has previously held that whistleblower activities are generally outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). We note that whistleblower complaints are addressed by the U.S. Office of Special Counsel. Accordingly, we AFFIRM the Agency’s dismissal of the basis of reprisal for whistleblower activity. However, we REVERSE the dismissal of the remainder of Complainant’s complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 3 While the record reflects that Complainant had a non-attorney representative at the time of the filing of her formal complaint, as referenced by the Agency, this does not alter our decision that Complainant has met the standard to warrant an extension of the applicable time limit. 2022000887 4 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2022000887 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000887 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 March 9, 2022 Date