[Redacted], Keenan O., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 27, 2022

Appeal No. 2022002142 (E.E.O.C. Jun. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Keenan O.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022002142 Agency No. 200H-0630-2022100263 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated February 9, 2022, dismissing his 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was retired from the Agency’s New York Harbor Health Care System in St. Albans, New York. On November 29, 2021, Complainant filed a formal complaint alleging the Agency subjected him to discrimination on the bases of his race (Black), national origin (West Indian), sex (male), disability, age, and reprisal for prior protected EEO activity when, since approximately 2015, the Agency has failed to correct his service computation date (SCD), causing an error that has resulted in a reduced retirement payment. 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. 2022002142 2 The Agency dismissed the complaint for untimely EEO Counselor Contact, pursuant to 29 C.F.R. § 1614.107(a)(2). According to the Agency, Complainant first became aware of the SCD error in April 2016 and contacted Agency Human Resources officials who advised him that the error would be corrected. It was sometime after his November 16, 2019 retirement that Complainant became aware that the error had not been corrected and suspected discrimination. However, Complainant did not contact an EEO Counselor until October 18, 2021. The Agency reasoned that Complainant reasonable suspected discrimination more than 45 days before his initial contact. Particularly, it noted that in his formal complaint, Complainant cited many dates in which he contacted the Agency about correcting his SCD, including August 10, 2020; December 3, 2020; February 2, 2021; June 3, 2021; and September 17, 2021. Additionally, the Agency dismissed the complaint on the grounds that Complainant previously raised the matter with the Merit Systems Protection Board (MSPB), pursuant 29 C.F.R. § 1614.107(a)(4). Complainant filed the instant appeal. On appeal, Complainant argues, among other things, that he essentially did not develop an immediate, reasonable suspicion of discrimination because he had been repeatedly assured by Human Resource officials that his SCD would be corrected. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should 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. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The record discloses that Complainant became aware of the SCD error as early as April/June 2015, and no later than his November 2019 retirement, but did not initiate contact with an EEO Counselor until October 18, 2021, well beyond the forty-five (45) day limitation period. Complainant made several unsuccessful attempts to resolve the SCD error. However, the Commission has consistently held that utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Therefore, we find that Complainant has not provided sufficient justification for granting an extension of the time limit for initiating EEO Counselor contact. 2 2 In light of our determination, that the Agency’s dismissal for untimely EEO counselor contact was proper, we need not address the Agency’s alternative dismissal ground. 2022002142 3 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. 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. 2022002142 4 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. 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 June 27, 2022 Date