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

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022004634 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hui E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022004634 Agency No. 200H-541-2022-144052 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 28, 2022, 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. BACKGROUND During the period at issue, Complainant worked as a Medical Technologist at the Agency’s facility in Cleveland, Ohio. On May 26, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race, color, age, in and reprisal for prior protected EEO activity. In its final decision dated July 28, 2022, the Agency determined that the formal complaint was comprised of a hostile work environment claim from 2012 to the present encompassing numerous alleged incidents. The Agency dismissed the formal complaint in its entirety on the grounds it was untimely filed. The Agency reasoned that the Notice of Right to File a Formal Complaint (Notice) was received by Complainant on May 10, 2022, but she did not file her formal complaint until May 26, 2022, beyond 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. 2022004634 2 The Agency also dismissed various alleged incidents comprising the hostile work environment for untimely EEO Counselor contact and failure to state a claim. The instant appeal followed. 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 properly dismissed Complainant’s formal complaint on the grounds it was untimely filed. The record reflects that the Agency’s EEO Counselor sent Complainant and her non- attorney representative the Notice on May 3, 2022, via email. The May 3, 2022 email from the EEO Counselor stated, in pertinent part, that, “I have attached the [Notice] (it is password protected please respond to this email to request the password). You and/or your client will have 15 calendar days from the date of receipt of the password being sent back to you to send [the formal complaint form] back to [the Agency]…”. The record also contains a copy of the Notice which informed Complainant that she had 15 days from receipt of the Notice to file a formal complaint. The record reflects that on May 9, 2022, Complainant received the May 3, 2022 email from the EEO Counselor. Specifically, the record contains an email from Complainant dated May 9, 2022 to the EEO Counselor stating that she received the email from the EEO Counselor regarding the Notice and would like the password. The EEO Counselor emailed the password to Complainant on May 10, 2022. Based on the foregoing, we find that Complainant received the Notice on May 10, 2022, but did not file the formal complaint until May 26, 2022, outside the applicable time limit.2 Complainant has not provided sufficient justification to extend the applicable time limit. Accordingly, for the reason set forth herein, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. Because we affirm the Agency’s final decision for the reason set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2 The record reflects that Complainant’s non-attorney representative filed the formal complaint via email dated May 26, 2022. 2022004634 3 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). 2022004634 4 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 December 19, 2022 Date