Trevor H,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019004846 (E.E.O.C. Sep. 18, 2019)

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

Trevor H,1
Complainant,

v.

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

Appeal No. 2019004846

Agency No. 200P-0593-2019101722

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (FAD) dated May 23, 2019, dismissing his
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Social
Worker, GS 12, at the Agency’s Behavioral Health Department, Addictive Disorder Treatment,
Medical Center, facility in Las Vegas, Nevada.

On March 13, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (Native American), disability (Rheumatoid Arthritis),
and age (48) 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.
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1. In May 2018, Complainant received an unsatisfactory performance evaluation;
2. On August 21, 2018, Complainant became aware of his three (3) day suspension
notice dated August 6, 2018, effective August 29-31, 2018; and
3. On August 28, 2018, Complainant was constructively discharged.

The Agency dismissed the claims for untimely EEO Counselor contact. The instant appeal
followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 record discloses that the latest
alleged discriminatory events raised in Claim #3 occurred on August 28, 2018, but Complainant
did not initiate contact with an EEO Counselor until January 30, 2019, which is beyond the forty-
five (45) day limitation period.

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.

Complainant maintains he was not aware of the time limits but admits that he received EEO
training “earlier in the year.” We therefore find that Complainant had constructive knowledge of
the applicable time limits. Complainant further states that:

The reason I didn't get in touch with the EEO counselor in a more timely fashion
was because I was in the midst of starting a new job. I also was suffering and
going through difficulty with my Rheumatoid Arthritis pain and becoming more
stable physically. Though I had gone through an EEO training video earlier in the
year, my case caused emotional turmoil and I had to come to terms of
understanding the damage what my former employer did to me mentally. I needed
more time to devise a coherent description in the form of a complaint. This is the
reason for not making the time frame rule.

To the extent Complainant is arguing that his medical condition prevented him from contacting
the Counselor, we note that the Commission has consistently held that an extension is only
warranted where an individual is so incapacitated by his condition that he is unable to meet the
time limits. Mason v. U.S. Postal Serv., EEOC Appeal No. 0120091320 (June 11, 2010).
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Hospitalization may constitute such a circumstance, but evidence that the complainant was under
a physician’s care is not dispositive of the issue of whether the complainant was incapacitated.
Josey v. Dept. of Health and Human Serv., EEOC Appeal No. 01990127 (Dec. 1, 1999). An
assertion of medical incapacitation will not warrant an extension of the regulatory time-limits
when the complainant, as here, offers no documentation of the medical condition preventing
timely contact with an EEO Counselor. Id.

Finally, Complainant argues that he contacted the facility EEO Program Manager (PM) on
September 10, 2018. The Agency found that PM was logically connected to the EEO process,
but further found that Complainant’s September 2018 contact did not demonstrate an intent to
initiate the EEO process. Specifically, the Agency found that while PM had no recollection of
such contact, Complainant maintained that PM returned his voicemail message later that same
day with a message of her own providing him with the appropriate contact telephone number for
the EEO Counselor, which Complainant did not contact until almost five months later. Given the
above we find that Complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact

CONCLUSION

The FAD 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:
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.
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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. 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 18, 2019
Date