0120182602
09-28-2018
David N.,1 Complainant, v. Robert Wilke, 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
David N.,1
Complainant,
v.
Robert Wilke,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120182602
Agency No. 200405812018101968
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 1, 2018, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Certified Nursing Assistant (CNA), 03/01, at the Agency's VA Medical Center facility in Huntington, West Virginia. Complainant was hired by the Agency on August 20, 2017. His appointment was subject to a one (1) year probationary period.
On January 18, 2018, Complainant initially contacted an EEO counselor. On April 4, 2018, he filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (stage 3 chronic kidney disease) when, on September 14, 2017, the Agency terminated him, during his probationary period, from his position as a CNA.
The Agency dismissed the April 4, 2018 EEO complaint relating to the termination, pursuant to 29 C.F.R. � 1614.107(a)(4), because it determined that Complainant had already challenged his termination in a negotiated grievance filed on September 22, 2017, prior to filing his formal EEO complaint. In the alternative, the Agency argues that the complaint should also be dismissed for untimely EEO counselor contact.
The instant appeal followed.
ANALYSIS AND FINDINGS
Previously Filed Grievance
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has first raised the matter in a negotiated grievance procedure that permits claims of discrimination.
While on appeal, Complainant asserts that he did not file a grievance, the record includes a Response to 3rd Step Grievance Filed in Reference to Termination of a Probationary Period Employee, from the Agency to the President of the American Federation of Government Employees (AFGE) Local 2344, dated October 5, 2017. The Response indicates Complainant's probationary termination was non-grievable.
The Commission has previously held that where a complainant filed a grievance prior to filing an EEO complaint, but the grievance was denied on the grounds that the subject matter of the grievance was not a grievable matter, the complainant did not make a true election. See Chai v. National Aeronautics and Space Administration, EEOC Request No. 05970016 (July 10, 1998); Holmes v. Department of Navy, EEOC Request No. 05931010 (October 14, 1994). Therefore, based on the circumstances presented here, we conclude that the Agency erred in dismissing the complaint as previously raised in the grievance process.
Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should 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 Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). However, the Commission has also held that the invalidity of a complainant's election to utilize the grievance process presents a sufficient basis for tolling the time limitation for EEO counselor contact. See Chai v. National Aeronautics and Space Administration, EEOC Request No. 05970016 (July 10, 1998).
With respect to the timeliness of Complainant's initial EEO counseling contact, the alleged discriminatory personnel action, Complainant's termination, occurred on September 14, 2017. However, because Complainant's election of the negotiated grievance procedure was invalid, we find tolling the time limit for him to initially contact an EEO counselor is warranted. His 45-day period began after the October 5, 2018 3rd Step grievance decision. His initial contact with an EEO counselor was on January 18, 2018, which is more than 45 days following the October 5, 2018 grievance decision. Therefore, the Agency correctly determined Complainant's counseling contact was untimely made. Complainant has provided no justification for the delay in seeking EEO counseling after the final grievance decision was issued finding the matter non-grievable. We note that his termination letter specifically contained express information about how to initiate an EEO complaint, including the 45-day limitation period.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
September 28, 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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