0120160362
03-18-2016
Brandon D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brandon D.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120160362
Agency No. 200H06502015103244
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 6, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as Chief of the Pathology & Lab Medical Service, GS-15 and Pathologist (GS-15) at the Agency's Providence Veterans Affairs facility in Providence, Rhode Island.
On July 28, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to harassment and discrimination on the bases of race (Black), national origin (Barbados), color (Dark Skin), and reprisal for prior protected EEO activity when:2
1. On December 24, 2013, the Chief of Staff ("CS") denied his pay increase;
2. On August 12, 2014, CS issued him a letter of counseling;
3. On or about January 1, 2015, ("CS") removed him as Chair and member of the Operative Invasive Committee ("OIC"); and
4. On May 5, 2015, CS relieved him of his position as Chief, Pathology and Laboratory Medicine Service ("P&LMS").
Claims 1, 2, and 3 of Complainant's complaint were initially brought as amendments to an earlier complaint comprised of two claims. The Agency dismissed Complainant's original two claims, but remanded Claims 1, 2, and 3 to be treated as a new complaint. We affirmed. See Ervin P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120152065 (Oct. 22, 2015) As for Claim 4, Complainant raised the issue during the counseling period, but disputes that he ever discussed it with a counselor. As Claim 4 was referenced in the Formal Complaint and the Final Decision, and for purposes of this appeal, we will consider all four claims.
The Agency dismissed Complainant's complaint for failing to comply with EEOC regulatory time limits under 29 C.F.R. � 1614.107(a)(2), for untimely filing of his formal complaint, or in the alternative for claims 1, 2 and 3 untimely contact with an EEO counselor.
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, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
The regulation set forth at 29 C.F.R. � 1614.106, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Under 19 C.F.R. � 1614.605(d), time frames for receipt of the notice of right to file a formal complaint are computed from the time of receipt by complainant's attorney. It is well established that "[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 (January 4, 1994)
The record discloses that Complainant received the notice of right to file a formal complaint on July 9, 2015. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until July 28, 2015, which is beyond the limitation period.
On appeal, Complainant acknowledges that he filed his formal complaint after the 15 day limitation period. Complainant argues that the Agency never provided his representative with the Notice of Right to File. He also asserts that the Agency failed to correctly frame his complaint, dismissed a claim Complainant was never counseled on (Claim 4) and improperly fragmented Complainant's claims.
Complainant's previous complaint before this Commission, referenced above, was also dismissed for untimely filing, and Complainant presented similar arguments on appeal. Therefore, we will reiterate our previous finding:
Complainant contends that the time limit should be extended because the Notice was not sent to his representative. We disagree. Where the representative is not an attorney, the time limit starts running once the Notice is received by the Complainant. 29 C.F.R. � 1614.402(b). Complainant also contends that the time limit should be extended because the EEO counselor did not provide adequate counseling. While this is disputed by the Agency, even if true it does not excuse filing the complaint after the 15 day time limit. Ervin P., supra.
Given Complainant's untimely filing of his formal complaint, we decline to address Complainant's other arguments on appeal and the Agency's alternate grounds for dismissal.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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, Director
Office of Federal Operations
March 18, 2016
__________________
Date
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 Complainant also identified "Perceived Class" as a basis for discrimination, alleging CS (South Asian) had a "caste mentality" treating individuals with darker skin as "beneath his caste or class." "Perceived Class" is not a protected category under EEOC statutes; but such behavior can be addressed as race, color or national origin based discrimination.
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