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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022000839 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Farah S,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000839 Agency No. 200J-0579-2021103361 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 18, 2021, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Technologist, GS-12, at the Agency’s Black Hills VA Health Care System, Hot Springs Campus facility in Hot Springs, South Dakota. On June 25, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (mental/physical), and age (54) when: 1. From 2011 to April 10, 2020, Complainant experienced numerous harassing events; and includes the following independently actionable claim: 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. 2 2022000839 a. On April 10, 2020, Complainant was forced to resign (constructive discharge). The Agency conducted an investigation into the complaint. In an August 18, 2021, final agency decision (FAD), the agency dismissed the complaint as untimely because Complainant failed to contact an EEO counselor within 45 days of the underlying events. Specifically, the Agency asserted that Complainant contacted the EEO Counselor on April 19, 2021, regarding incidents that occurred approximately one year before, on about April 10, 2020. The Agency noted that during informal counseling, Complainant explained that she only recently learned who to contact to file an EEO complaint. However, according to the Agency, records showed that Complainant took the EEO, No FEAR, and Whistleblower Rights and Protection Policy Statement training on September 6, 2017, and EEO posters are displayed at the entrance to the Canteen, on the main bulletin boards, and at the entrance to Complainant’s work area. Therefore, the Agency concluded that Complainant was aware of how to file an EEO Complaint. The Agency provided Complainant with appeal rights to the Commission pursuant to 29 C.F.R. § 1614.302(a)(1). On September 7, 2021, Complainant filed a mixed-case appeal with the Merits Protection Board (MSPB). The Board DISMISS the appeal for lack of jurisdiction due to the untimely EEO filing. The Board did not reach the second jurisdictional issue regarding Complainant’s alleged involuntary resignation for the same reason. This appeal followed. ANALYSIS AND FINDINGS The record discloses that the last alleged discriminatory event occurred on April 10, 2020, but Complainant did not initiate contact with an EEO Counselor until April 19, 2021, which is close to a year beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no 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. 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. 3 2022000839 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). 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. 4 2022000839 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 13, 2023 Date