0120181520
07-12-2018
Carter R,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carter R,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181520
Agency No. 200I-0516-2018100922
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 8, 2018, 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 was hired as a Health Technician, Audiology, GS-6 in March 2016. He had subsequently been promoted and worked as a Clinical Informatics Trainee, GS-9, at the Agency's Bay Pines Medical Center facility in Bay Pines, Florida.
On November 13, 2017, Complainant contacted the EEO Counselor alleging discrimination. Based on the Counselor's EEO Report, Complainant alleged discrimination on the basis of and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was not hired at the GS-7 position. Instead, Complainant indicated that he was hired at the GS-6 level in March 2016.
When the matter could not be resolved informally, on December 18, 2017, Complainant received his Notice of Right to File his formal complaint. On January 11, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of national origin (Hispanic) when, on November 30, 2017, two Agency police officers of the Tampa, Florida facility, opened his office door without knocking and began to shout and accuse Complainant and his coworker of being another Hispanic employee who they questioned earlier that morning.
The Agency noted that Complainant contacted the EEO Counselor alleging reprisal discrimination based on the Agency's decision to hire Complainant as a Health Technician, Audiology, at the GS-6 level in March 2016. The Agency noted that Complainant alleged reprisal for contacting his senator. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The Agency then noted that Complainant's formal complaint alleged discrimination based on national origin (Hispanic) based on an incident involving Agency police on November 30, 2017. The Agency noted that Complainant received the Notice of Right to File his formal complaint on December 18, 2017. The Notice indicated that Complainant had 15 calendar days to file his formal complaint. Complainant filed his complaint on January 11, 2018, beyond the 15-day time limit. The Agency held that Complainant provided a note stating that he had pneumonia. However, Complainant did not show that he was so incapacitated that he was prevented from filing his formal complaint within the 15-day time limit. As such, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for filing his formal complaint in an untimely manner. Furthermore, the Agency dismissed Complainant's claim involving the Agency police pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that Complainant failed to show that he was harmed by the alleged event. Accordingly, the Agency dismissed the complaint as a whole pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and 29 C.F.R. � 1614.107(a)(2) for untimely filing of the formal complaint.
Complainant appealed asserting that he had been subjected to harassment involving two events, namely, the Agency's decision to hire him at the GS-6 level and the Agency police incident. He asserted that these events have negatively impacted him. He asked that the Commission review the Agency's final decision.
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 and consideration of the arguments on appeal, we determine that the Agency's dismissal, due to the untimely filing of the formal complaint, was proper. Complainant acknowledged that his formal complaint was filed untimely. Specifically, Complainant explained the reason for his untimely filing of the complaint because he had been diagnosed with pneumonia. Complainant provided a medical note stating that he could to return to work without restrictions on January 2, 2018.
When a complainant claims that a physical condition prevents him from meeting a particular filing deadline, we have held that in order to justify an untimely filing, Complainant must be so incapacitated by the condition as to render him physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (March 8, 1989). The same is true regarding claims of incapacity related to psychiatric or psychological conditions. See Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (October 29, 1992). There is nothing in the record, such as medical documentation, supporting Complainant's assertion that he was so incapacitated during the applicable 15-day period as to prevent him from timely filing the instant complaint. Further, Complainant's note indicated that he could return to work on January 2, 2018, the day his formal complaint was due. However, he waited until January 11, 2018, to file his formal complaint without explanation. Complainant has not presented adequate justification for extending the limitation period beyond 15 days. Because we have found that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), we need not address the Agency's other bases for dismissal of the complaint at hand.
CONCLUSION
The Agency's final decision to dismiss the formal complaint on the grounds of 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:
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. 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
July 12, 2018
__________________
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.
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