Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2012-3197-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120123197

Hearing No. 520-2012-00039X

Agency No. 200H-0620-2011-102357

DECISION
Complainant filed a timely appeal with this Commission from the Agency’s July 7, 2012 final
order implementing an Equal Employment Opportunity Commission Administrative Judge’s
dismissal of his complaint of 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
At the time of events giving rise to this complaint, Complainant worked as a Transportation
Operator at the Agency’s VA Medical Center in Montrose, New York. On April 15, 2011,
Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination
on the bases of disability and in reprisal for prior protected EEO activity when:

1. He realized that he was not paid in a timely manner for overtime he worked on
February 4 and 12, 2011, and March 3, 2011; and

2. His rights under the Freedom of Information Act were violated when he was not
given a copy of a Police Report on February 17, 2011.

In addition, Complainant alleged that he was subjected to a hostile work environment based on
disability and reprisal as evidenced by three emails from March 2011, including, a follow-up
email he received from the General Foreman regarding a meeting he had with the General
Foreman and the Union regarding overtime assignments on March 8, 2011; a conversation
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with the Transportation Supervisor when she asked him to work overtime, and he refused to
work overtime for snow removal on March 10, 2011; and an email from the Acting Dispatcher
when Complainant refused to work overtime for snow removal on March 16, 2011.

On May 11, 2011, the Agency dismissed claim (2) and Complainant’s hostile work
environment claim pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. At the
conclusion of the investigation of claim (1), the Agency provided Complainant with a copy of
the report of investigation and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing; however, on May 21, 2012, the AJ issued a bench decision dismissing
Complainant’s complaint.

In his decision, the AJ initially noted that the Agency and Complainant had agreed to settle
claim (1); therefore, the AJ dismissed that claim. Next, the AJ explained that, Complainant
had submitted a handwritten letter on February 10, 2012, labeled “Claim that was dismissed by
the Agency,” in which he raised arguments about one of the March 2011 letters alleged in his
hostile work environment claim. The AJ allowed the parties to present arguments regarding
this letter, which the AJ considered an attempt by Complainant to reinstate previously
dismissed claims. The AJ noted that the October 24, 2011 Acknowledgment and Order
provided that the parties had 30 days from receipt of the Order to identify and oppose any
dismissed claims. Complainant’s counsel acknowledged that Complainant’s attempt to
reinstate the dismissed claims was untimely; however, counsel argued that Complainant
believed that he was acting in good faith by responding to the AJ’s January 23, 2012
Scheduling Order. The AJ determined that the Scheduling Order did not contain any language
allowing Complainant to reinstate previously dismissed claims, and found no evidence
warranting a waiver of the 30-day requirement from the Acknowledgment Order. As a result,
the AJ held that the claims raised in Complainant’s February 10, 2012 letter were not properly
before him. As the parties had settled claim (1), the AJ dismissed the complaint.

CONTENTIONS ON APPEAL
On appeal, Complainant argues, through counsel, that the AJ’s orders were confusing and that
he believed he had timely responded to the Acknowledgment Order. Complainant contends
that he was denied the opportunity for his day to be heard about the issues that led him to file a
complaint in the first place. Accordingly, Complainant requests that the Commission reverse
the final order.

ANALYSIS AND FINDINGS
EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct
of a hearing and related proceedings, including whether to accept additional claims. See 29
C.F.R. § 1614.109. In the instant case, Complainant submitted a written letter attempting to
reinstate previously dismissed claims. The October 24, 2011 Acknowledgment and Order
specifically stated that the parties had “thirty (30) calendar days…to identify any claims the
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agency has dismissed from the complaint” and “[i]f the complainant fails to oppose in writing
the dismissal within thirty (30) calendar days, the opportunity to have the dismissal reviewed
by the Administrative Judge shall be deemed waived.” The AJ found that Complainant did not
file a motion or seek review of the dismissals within the stated timeframes. The Commission
has reviewed the documentary evidence in the record and finds no evidence that the AJ abused
his discretion in denying Complainant’s untimely request to reinstate previously dismissed
claims. The record reveals that claim (1) was withdrawn following a settlement agreement.
As a result, the Commission agrees with the AJ that no other pending claims remain.

Accordingly, the Agency's final order affirming the AJ’s dismissal of Complainant's complaint
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.
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).

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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
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

Date
July 22, 2015