[Redacted], Tim H., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2022003490 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Coast Guard), Agency. Appeal No. 2022003490 Agency No. HS-USCG-01643-2022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 1, 2022, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Visual Information Specialist, GS-1084-11 at the Agency’s Aviation Training Center facility in Elizabeth City, North Carolina. On May 6, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (Not Specified) when: 1. Between 2020 to July 30, 2021, the Agency denied Complainant reasonable accommodation. 2. On or about July 30, 2021, the Agency discharged Complainant from his position. 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. 2022003490 2 3. Between July 30, 2021, and December 31, 2021, the Agency delayed presenting Complainant with a Standard Form 50, final wages owed, and notification of life insurance benefit options. The Agency dismissed the complaint in its entirety for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). It reasoned that the last alleged discriminatory incident occurred on December 31, 2021, but Complainant did not contact an EEO Counselor until March 18, 2022, which was beyond the 45-day time limit. The Agency further noted that while Complainant explained that financial privation delayed his EEO Counselor contact, that alone was not adequate justification to extend the time limit. CONTENTIONS ON APPEAL Neither party submits arguments or contentions on appeal.2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§§ 1614.105, .106, and .204(c), unless the Agency extends the time limits in accordance with § 1614.604(c). 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 2 Complainant submitted an untimely appeal brief on July 28, 2022. Complainant has not submitted a request for an extension of time to submit this brief. Therefore, we have not considered it on appeal. 2022003490 3 The record shows that, on March 18, 2022, Complainant contacted an EEO Counselor regarding events occurring between 2020 and December 31, 2021. We find that Complainant should have reasonably suspected discrimination within 45 days of December 31, 2021, the date of alleged discrimination. However, Complainant did not contact an EEO Counselor until March 18, 2022, which is beyond the 45-day time limit. The record shows that Complainant and his wife stated Complainant was unwell and suffered financial hardship at the time of and after his removal. While we sympathize with Complainant’s plight, we have consistently held that, in cases involving physical or mental health issues, an extension is warranted only where a complainant shows he is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989); Crear v. v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Here, the evidence is insufficient to establish that Complainant was incapacitated to such a degree that he was prevented from timely contacting a counselor. With respect to Complainant's contention of financial hardship, we find that Complainant has not made clear how his financial situation affected his ability to timely contact an EEO counselor. See Donette A. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181694 (July 11, 2019). Thus, we find that the complaint was properly dismissed for untimely EEO Counselor contact. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing the complaint. 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). 2022003490 4 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. 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. 2022003490 5 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 6, 2022 Date U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amber T.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022003604 Agency No. 200P10N22-2022-143450 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 12, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Program Support Assistant, GS-7, in Caregiver Support for the Desert Pacific Healthcare Network, in Long Beach, California. On December 27, 2021, Complainant initiated contact with an EEO Counselor. The parties failed to resolve the matter through informal EEO counseling. On February 18, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race, national origin, sex, religion, color, disability, age, and in reprisal for prior EEO-protected activity when: 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 2022003604 a) On November 15, 2021, Complainant was not assisted by management when she was denied computer access to the Computerized Patient Records System/Web Vista Remote Access Management (CPRS/WEBVRA); b) On December 2, 2021, management did not respond when Complainant informed them that her work was being altered, changed and deleted in the system; c) On December 3, 2021, Complainant was not assisted by management regarding denial of her ability to gain access the Phoenix, AZ and West LA facilities’ CPRS/WEBVRA systems; and d) Complainant was not assisted by management regarding denial of her ability to access the Loma Linda facility CPRS/WEBVRA system. In her formal complaint Complainant also included the following claim: e) On December 2 and 24, 2021 and January 5, 2022, Complainant was wrongfully charged usage of FMLA-Holiday Pay/Worked. On May 12, 2022, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency stated that Claims (a), (b), (c) and (d) were not pervasive and insufficiently severe. Regarding claim (e), the Agency determined that this claim was not like or related to the claims for which Complainant had undergone EEO counseling, and dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. On appeal, Complainant argues that the Agency improperly determined that her claims lacked severity and pervasiveness. Complainant maintained that management’s acts and omissions impaired her work performance and made her feel humiliated. Complainant further argues that she did discussed the FMLA leave issue with the EEO Counselor that has herein been designated as claim (e). ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106(a) the Agency must accept a complaint from an aggrieved employee states a justiciable claim that she has been subjected to employment discrimination because of her EEO-protected characteristics or subjected to retaliation for EEO-protected activity. Here, Complainant has satisfied our basic threshold inquiry for stating a claim that described employment harm under EEOC regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). 3 2022003604 A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Complainant cannot prove a set of facts in support of the claim which would entitle her to relief. EEOC must consider the allegations together in the light most favorable to Complainant, in order to determine sufficiency to state a claim. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Upon review, the Commission finds that the Agency’s final decision had improperly addressed merits of Complainant's complaint without formal EEO investigation as regulations require. Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). A fair reading of this record reveals that Complainant has accused that certain managers of a pattern whereby they treated her irregularly such that she has adequately stated a harassment claim. Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). Finally, we disagree with the Agency dismissal of claim (e) on the grounds that this claim is not like or related to the matters Complainant raised with the EEO Counselor. According to Complainant’s narrative accompanying her formal complaint, the improper charging of leave between December 2021 and January 2022, implicated the same management officials whom Complainant has accused of harassment the other claims. Moreover, a close reading of the EEO Counselor’s report indicates that Complainant or her supervision described problems involving her use of leave. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED for the reasons discussed above. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of Complainant’s request for a hearing, a copy of Complainant’s request for a FAD, or a statement from the Agency that it did not receive a response from complainant by the end of the election period. 4 2022003604 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to Complainant and her representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 5 2022003604 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. 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit 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 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. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 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 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. 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 6 2022003604 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 6, 2022 Date