Lemuel M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019005142 (E.E.O.C. Sep. 30, 2019)

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

Lemuel M.,1
Complainant,

v.

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

Appeal No. 2019005142

Hearing No. 420-2019-00014X

Agency No. 200I-0521-2018102846

DECISION

On July 3, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 5, 2019 final order concerning his equal employment opportunity (EEO) complaint alleging
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 an Advance Medical
Support Assistant, GS-6, at the Agency’s Medical Center facility in Birmingham, Alabama.

On March 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of disability (Anxiety, chronic Post Traumatic Stress Disorder) when, on
February 28, 2017, and subsequent dates, Complainant was denied a reasonable accommodation.

At the conclusion of the investigation into the complaint, the Agency provided Complainant with
a copy of the report of investigation and notice of his right to request a hearing before an Equal

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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Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing.

On June 3, 2019, the AJ assigned to the case determined that the complaint should be dismissed
for untimely EEO counselor contact. Specifically, the AJ found that the alleged discriminatory
act occurred on February 28, 2017, but that Complainant did not contact a counselor until March
7, 2018, which is beyond the regulatory time limit. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant’s EEO counselor contact was untimely.

The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.

Complainant alleged in his Formal Complaint, and elsewhere in the record, that on February 28,
2017, he was denied a reasonable accommodation when the Director of Primary Care stated,
“We are not giving you your own office to work in and an advance MSA can only work near a
kiosk.” Because Complainant’s EEO counselor contact did not occur until over a year later on
March 7, 2018, the AJ dismissed the complaint for untimely counselor contact.

On appeal, Complainant argues that the Agency denied a subsequent reasonable accommodation
request in February 2018, making his March 2018 EEO counselor contact timely. In his appeal
statement, Complainant states, “On February 28, 2018, the Agency denied [Complainant’s]
request, instead transferring him to another facility. See Ex. B; Ex. C at page 2.” A review of
Complainant’s appeal package, however, reveals that it did not contain any exhibits labeled B or
C. Nor do any exhibits in the record appear to match Complainant’s citation.

The record does show that after a lengthy delay, Complainant, on January 19, 2018, was offered
an accommodation in the form of a transfer to another facility. The record further shows that
Complainant agreed to this accommodation, although we note that before beginning his new
position, Complainant, on February 2, 2018, sent a group email to various management and EEO
officials stating, “I am only taking this reassignment because all parties directly and indirectly
involved in my reasonable accommodations have failed me. I should not have to leave this clinic
and go more than 60 miles one-way to a job when accommodations can be made for me here in
Oxford.” We note, however, that Complainant did not state or indicate in the email what
accommodations he was denied in 2018 or that he felt the reassignment constituted a denial of a
reasonable accommodation. The record shows that Complainant began the new position on
February 26, 2018.

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On appeal, Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the AJ correctly found that Complainant’s EEO
counselor contact was untimely, and we AFFIRM the Agency’s final order.

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.
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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.
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 30, 2019
Date