Latonya D.,1 Complainant,v.Robert D. Snyder, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 8, 2017

0120151832 (E.E.O.C. Feb. 8, 2017)

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

Latonya D.,1
Complainant,

v.

Robert D. Snyder,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120151832

Agency No. 200P06052015101200

DECISION

Complainant filed an appeal with this Commission from the Agency's final decision dated
April 10, 2015, dismissing her 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

At the time of the events at issue, Complainant worked as a GS-6 Therapy Assistant in the
Nursing Service at the Agency’s VA Medical Center in Loma Linda, California.

Complainant filed mixed case appeals with the Merit Systems Protection Board (MSPB)
alleging that the Agency discriminated against her on the basis of disability (back condition).
In MSPB No. SF-0752-12-0361-I-1, Complainant challenged her January 23, 2012 removal
from the Agency. In MSPB No. SF-0752-12-0487-I-1, Complainant asserted that the Agency
constructively suspended her from May 2011, until her January 2012 removal.

On June 26, 2012, after a hearing, the MSPB Administrative Judge (AJ) issued an initial
decision on the joined appeals.

Regarding MSPB No. SF-0752-12-0361-I-1, the MSPB AJ found no disability discrimination.
First, the MSPB AJ determined that Complainant could not perform the essential functions of

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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the Therapy Assistant position, with or without reasonable accommodation. Second, the
MSPB AJ determined that Complainant failed to show that there was a vacant, funded position
to which she could have been reassigned as a reasonable accommodation.

Regarding MSPB No. SF-0752-12-0487-I-l, the MSPB AJ dismissed the appeal for lack of
jurisdiction. Specifically, the MSPB AJ found that Complainant failed to show that her
absence from work was involuntary.
Complainant filed a petition with the Commission asking for a review of the June 26, 2012
decision issued by the MSPB. The Commission issued a decision under EEOC Petition No.
0320120065 (October 8, 2014). Regarding MSPB No. SF-0752-12-0361-I-l (removal), the
Commission affirmed the MSPB's finding of no disability discrimination.
Regarding MSPB No. SF-0752-12-0487-I-l (constructive suspension), the Commission found
that it had no jurisdiction to review Complainant's petition. The decision noted the MSPB
dismissed Complainant's appeal for lack of jurisdiction and did not make any determinations
on allegations of discrimination. The Commission noted where the MSPB denies jurisdiction,
there is little point in continuing to view the matter as a “mixed case.” The decision noted the
case will be considered a “non-mixed” matter and processed accordingly. The Commission
found the Agency was required to process Complainant’s allegations of discrimination in
MSPB No. SF-0752-12-0487-I-1 as a “non-mixed” matter. The Agency was instructed to
promptly notify Complainant in writing of her right to contact an EEO Counselor within 45
days of receipt of the notice and to file an EEO complaint. The decision stated that the date on
which Complainant filed MSPB No. 0752-12-0487-I-1 shall be deemed to be the date of initial
contact with an EEO Counselor.
Thereafter, Complainant underwent EEO counseling regarding the constructive suspension.
On March 5, 2015, Complainant filed a complaint of discrimination alleging that she was
subjected to discrimination based on disability when from May 11, 2011, through January 23,
2012, she was placed on leave without pay (LWOP).

The Agency issued a final decision on April 10, 2015. The Agency dismissed Complainant’s
complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The
Agency noted that Complainant initiated EEO Counselor contact on April 23, 2012, which was
the date Complainant filed MSPB No. SF-0752-12-0487-I-1. The Agency noted that when the
Commission remanded the case back to the Agency for processing it advised that the date on
which Complainant filed MSPB No. SF-0752-12-0487-I-1 shall be deemed the date of initial
contact with an EEO Counselor.

The Agency noted that Complainant’s initial contact with an EEO Counselor was April 23,
2012. Thus, the Agency found that anything occurring before March 10, 2012, was beyond
the 45-day time limit for initiating timely contact with an EEO Counselor. The Agency stated
that Complainant raised her complaint with an EEO Counselor approximately 90 days after
occurrence. The Agency noted that during a March 30, 2015 conversation with the Case
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Manager, Complainant acknowledged she was aware of the 45-day time limit because she
remembered taking courses on the computer that explained the EEO complaint process,
including time frames. The Agency noted that Complainant stated the reason for her untimely
filing was that she was concerned about her disability and did not pay much attention to filing
an EEO complaint.

Additionally, the Agency stated that documentation provided by the facility indicates that
Complainant received training on EEO time frames and the complaint process on five dates
with the latest being April 14, 2011. The Agency noted the case file contains evidence of
Complainant’s EEO training that specifically addressed the 45-day time limit. The Agency
noted that Complainant attended the following training: prevention of workplace harassment,
prevention of sexual harassment, and federal employee antidiscrimination and retaliation (No
Fear). Thus, the Agency determined Complainant was fully aware or should have been aware
of the applicable time limits for filing an EEO complaint in a timely manner. The Agency
found no evidence that extenuating circumstances prevented Complainant from filing her
complaint in a timely manner. Moreover, the Agency noted the facility indicated that posters
identifying EEO time lines and procedures have been posted on bulletin boards in high traffic
areas since 2011.

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that Complainant was not aware of the
time limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

The record discloses that the alleged discriminatory event occurred at the latest in January 23,
2012, but that Complainant did not initiate contact with an EEO Counselor until April 23, 2012
(the date Complainant filed MSPB No. SF-0752-12-0487-I-1), which is beyond the applicable
45-day limitation period. Upon review, we find Complainant failed to present persuasive
arguments or evidence warranting an extension of the time limit for initiating EEO Counselor
contact.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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.
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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

February 8, 2017
Date