Valery G.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 9, 2020

2020004976 (E.E.O.C. Nov. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valery G.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020004976 Agency No. 200405402020103576 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's July 30, 2020 dismissal of her 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 At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-1 at the Louis A. Johnson VA Medical Center in Clarksburg, West Virginia. On July 14, 2020, Complainant filed a formal complaint alleging that she was subjected to harassment/ a hostile work environment by the Agency as reprisal for her prior protected EEO activity when: on March 19, 2020, the Nurse Manager and the Assistant Nurse Manager held Complainant in a supply closet, blocked the door, and refused to let her out. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. Alternately, the Agency dismissed her complaint on the grounds that it failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 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. 2020004976 2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.106(b) requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. §1614.105(d), (e), or (f). A complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. §1614.604(b). In addition, the statutory 15-day time limit is subject to waiver, estoppel, and equitable tolling pursuant to 29 C.F.R. § 1614.604(c). The record reveals that Complainant received the notice of right to file a formal complaint on June 22, 2020, yet she did not file her formal complaint until July 14, 2020. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). In instances of untimely filing, the Agency must not only demonstrate that the complainant received Notice, but that the Notice clearly informed the complainant of the 15 day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995). The Agency provided sufficient evidence to establish receipt in the form of a June 20, 2020 email containing the Notice of Right to File, sent to Complainant’s email address of record, and Complainant’s June 22, 2020, response email, confirming receipt. We note that throughout the pre-complaint process, Complainant and the Agency communicated almost exclusively by email, and that the Agency’s emails often included a large, bold-type, centrally positioned announcement that due to Covid-19, all EEO Staff were working remotely, necessitating email communication. Further, Complainant does not dispute the June 22, 2020 receipt date. The Agency also satisfied its burden to establish that the Notice of Right to File clearly informed Complainant of the 15 day deadline, as this was prominently included in its June 20, 2020 email. Moreover, Complainant is deemed aware of the EEOC procedural time frames, because she previously engaged in EEO activity that included pursuing an EEO complaint. See Williams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120111236 (Oct. 4, 2011). Complainant does not address timeliness in her appeal brief, however, as part of an email inquiry to the Commission, she states, “I faxed [the formal complaint on] June 25, 2020, but it was apparently not received, and I believe a typo was made when I emailed it the second time.” Complainant has not offered sufficient supporting evidence or explanation for why she ultimately did not file until July 14, 2020. In light of the Agency’s proffered evidence, we do not find Complainant’s explanation justifies waiving or extending the time limit. Since Complainant’s claims were properly dismissed as untimely, we decline to review the Agency’s alternate grounds for dismissal. 2020004976 3 New Claims of Reprisal On appeal, Complainant focuses on new allegations of reprisal based on her EEO activity related to the instant complaint. As these allegations were not raised as part of the complaint on appeal before us, they will not be adjudicated in this Decision. If she has not done so already, Complainant may raise a separate complaint based on these allegations by contacting an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). CONCLUSION The Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020004976 4 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. 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 November 9, 2020 Date