Art B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

Aug 13, 2019

0120182567 (E.E.O.C. Aug. 13, 2019)

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

Art B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs (VA),
Agency.

Appeal No. 0120182567

Hearing No. 510-2018-00184X

Agency No. 200I-0516-2018100386

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s May 29, 2018 final decision adopting an EEOC Administrative
Judge’s dismissal of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Support
Assistant, GS-7, at the Agency’s Young VA Medical Center (VAMC) located in Bay Pines,
Florida.

On November 27, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity
(2016 EEO complaint) when, between September 18, 2017 and October 20, 2017, the Agency
denied Complainant’s request for leave and charged him with Absence without Leave on nine
occasions. The Agency accepted Complainant’s claim for EEO investigation.

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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Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ) or an immediate final agency decision. Initially, on February 12, 2018, Complainant
requested an immediate final agency decision. However, on February 15, 2018, Complainant
requested a hearing, stating that his first request was not in his best interest. The Agency
recognized Complainant’s change in election. EEOC docketed Complainant’s hearing request as
Hearing No. 510-2018-00184X.2

During the hearing stage, EEOC scheduled a settlement conference for the instant EEO
complaint for April 10, 2018. Via email on March 6, 2018 to Complainant, the Agency asked to
reschedule the settlement conference due to a scheduling conflict. In an email dated March 7,
2018 at 2:17 p.m., Complainant stated: “Be advised that today, I was given the decision of
Proposed Removal of employment. My hearing with the Director is the 14th of March. So there
is no need to continue this!” The Agency asked Complainant for clarification on whether he was
withdrawing his complaint and, if so, instructed him to provide a signed statement of withdrawal
that he or the Agency could send to the assigned AJ. In an email dated March 7, 2018 at 2:22
p.m., Complainant responded, “NO need to pursue the complaint! I have gotten the result that the
EEO complaint was to generate.” The Agency informed the AJ it was unclear if Complainant
intended to withdraw completely. The telephonic settlement conference was rescheduled for
April 23, 2018. Neither Complainant nor his representative attended.

On April 23, 2018, the assigned AJ issued a Notice of Intent to Dismiss from the Hearing
Process for Failure to Appear/Prosecute. The Notice stated that Complainant and his
representative failed to attend the settlement conference and did not respond to contact by the
Agency representative at the appointed conference time. The AJ informed Complainant, if he
did not contact him within 15 days with a good show cause reason for failure to attend, he would
dismiss the complaint from the hearing process. On May 16, 2018, the AJ issued an Order of
Voluntary Dismissal, dismissing Complainant’s entire complaint from the EEO process. On
May 29, 2018, the Agency issued a final decision dismissing Complainant’s complaint consistent
with the AJ decision. The instant appeal from Complainant followed.

On appeal, Complainant stated that he filed two complaints, one in November 2017 and another
in February 2018. Complainant stated, in March 2018, an AJ from EEOC’s Miami District
Office contacted him about pursuing his EEO complaint. Complainant stated that he thought the
AJ was referring to the February 2018 complaint and he informed him that he scheduled a
meeting with the Agency Director and the matter would be resolved. Complainant stated that he
told the AJ that all remaining matters should continue. Complainant stated that the process is
confusing when individuals have multiple complaints.

2 EEOC’s Hearing database contains one hearing request on record for Complainant - Hearing
No. 510-2018-00184X. The hearing request pertains to the instant complaint, Agency No. 200I-
0516-2018100386, and lists discrimination based on sex and reprisal through time and
attendance/leave as the matter-at-issue.
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ANALYSIS AND FINDINGS

Upon review of the record, we find that Complainant is attempting to resurrect the complaint
(200I-0516-2018100386) he withdrew at the hearing stage. Considering the record, including
but not limited to Complainant’s March 7 email responses to the Agency, Complainant’s failure
to attend the rescheduled settlement conference, the assigned AJ’s Notice and Order, and the
conversation Complainant acknowledged with an AJ, we agree that Complainant voluntarily
withdrew Agency No. 200I-0516-2018100386. Commission regulations mandate dismissal of
the instant EEO complaint.

CONCLUSION

Accordingly, Complainant’s appeal is hereby dismissed.

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. 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
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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

August 13, 2019
Date