Taunya P.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 3, 2019

2019001168 (E.E.O.C. Apr. 3, 2019)

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

Taunya P.,1
Complainant,

v.

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

Appeal No. 2019001168

Agency No. 200P-0593-2018103172

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated September 11, 2018, dismissing a formal
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.

BACKGROUND

During the period at issue, Complainant worked as a Licensed Practical Nurse at the Agency’s
VA Southern Nevada Health Care System in Las Vegas, Nevada.

In March 2018, Complainant sought EEO counseling alleging she was being subjected to
harassment sufficient to create a hostile work environment based on her race/color (Black) and
prior EEO activity. According to the Agency, Complainant filed her formal EEO complaint on
this matter on July 23, 2018.

The record shows that after Complainant initiated the EEO complaint process, the EEO
Counselor issued a Notice of Right to File a Complaint (hereinafter referred to as “Notice”), on
May 11, 2018, indicating that a formal complaint should be filed within fifteen calendar days of
receipt of the Notice. The record reflects that Complainant acknowledged receiving the Notice
on May 16, 2018.

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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In her May 16, 2018 email response to the EEO Counselor, Complainant stated “thank you for
your correspondence, yes, I would like to move to the formal stage of Complaint.” On May 23,
2018, the EEO Counselor sent an email to Complainant reminding her that she must complete
the VA Form 4939 (Complaint of Employment Discrimination) within fifteen (15) calendar days
of receipt of the Notice on May 16, 2018.

On September 11, 2018, the Agency issued its final decision dismissing the formal complaint,
pursuant to 29 C.F.R. § 1614.107(a)(2), finding the formal complaint was untimely filed. The
Agency determined that the July 23, 2018 formal complaint was filed more than fifteen days
after it determined that Complainant had received the Notice on May 16, 2018.

The instant appeal followed.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15)
days of receiving notice of the right to do so.

Based on a thorough review of the record, we determine that the Agency’s dismissal, due to the
untimely filing of the formal complaint, was proper. Here, following her receipt of the Notice on
May 16, 2018, Complainant had to file her formal complaint within the requisite 15-day period.
However, Complainant’s formal complaint, filed on July 23, 2018, was well beyond the
limitation period set forth in the regulations. Complainant states that she had actually faxed the
formal complaint on April 6, 2018, and on May 16, 2018, but that the fax machine she used did
not properly transmit, and that she was unaware of the fax machine difficulties until July 2018.
The record contains no documentation relating to the purported fax transmission of April and
May 2018, such as fax confirmation or error sheets, as noted by the Agency in response to
Complainant’s appeal. In sum, Complainant has not presented adequate justification for
extending the limitation period beyond fifteen days.

The Agency's final decision to dismiss the formal complaint for untimely filing is AFFIRMED.

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:
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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.
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.
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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

April 3, 2019
Date