0120181517
07-13-2018
Don O,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
Don O,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181517
Agency No. 20DR00012018100961
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 17, 2018 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 was Chief of the Financial Management Division, GS-15, at the Board of Veterans Appeals in Washington, DC.
On January 17, 2018, Complainant filed a formal complaint alleging discrimination by the Agency on the bases of race (Asian), national origin (Asian), and color (Not Specified) when:
1. On November 9, 2017, he was issued a Letter of Admonishment for inappropriate conduct,
2. On November 14, 2017, he was placed on administrative leave with no return date, and
3. On January 17, 2018, he was issued a Notice of Proposed Removal.
The Agency dismissed Complainant's complaint for untimely filing pursuant to 29 C.F.R. � 1614.107(a)(2) and 29 C.F.R. � 1614.106(b). 2
ANALYSIS AND FINDINGS
Under 29 C.F.R. �1614.107(a)(2), an 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(b) requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within 15 calendar days after the date of receipt of the Notice of Right to File an Individual Complaint ("Notice"). 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).
An agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). Here, the Agency met its burden. The record contains emails to Complainant from his EEO Counselor dated December 19, 2017, and December 20, 2017, providing the Notice to Complainant, along with the Agency's Formal Complaint Form, and detailed instructions for filing. The body of the email explained, in bold, underlined font, the time frames for filing, and summarized Complainant's rights and options to proceed. Complainant's December 21, 2017, response email references a discussion with his EEO Counselor the day before, establishing that Complainant received the Notice by December 20, 2017, making the deadline to file January 5, 2018. Complainant filed his complaint on January 17, 2018.
Complainant argues that his formal complaint was timely filed because he requested an extension from his EEO Counselor, explaining that he was out of town. Complainant asked that the 15-day time frame begin when he returned on January 8, 2018, as he was unable to access "relevant documents needed to construct the formal complaint." The EEO Counselor responded by email, "per our conversation, I have attached a fillable copy of the formal complaint form," making it easier for Complainant to complete off site. Documents in the record demonstrate that Complainant promptly responded to emails and spoke with his EEO Counselor by phone. Complainant insists on appeal that because his EEO Counselor failed to expressly deny his request, he was "granted" an extension. However, we find no evidence that would support this assertion, nor is there nor is there any other explanation in the record to justify an extension.
Alternately, Complainant argues that his complaint cannot be untimely because a copy of the Notice was not issued to his attorney. When a complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of the materials shall be computed from the time of receipt by the attorney. 29 C.F.R. �1614.605(d). However, at all times, Complainant is responsible for proceeding the complaint whether or not a representative has been designated. 29 C.F.R. �1614.605(e).
The first contact of record between Complainant's attorney and the Agency occurred after the Notice was issued, on December 26, 2017.3 However, Complainant contends that the Agency became aware in November 2017, when he verbally notified his EEO Counselor during the initial interview. According to Complainant, by the time the Agency issued the Notice, his attorney had been "negotiating with the Agency" for a month. Moreover, Complainant's November 14, 2017 initial contact and interview sheet, indicates that Complainant was not represented. The follow-up letter, also dated November 14, 2017, the December 1, 2017 letter acknowledging his informal complaint, and the December 19, 2017 Notice were all addressed to Complainant only. There is no evidence that the omission was made in bad faith and no evidence to support that the Agency became aware of his attorney in November 2017. Therefore, we find the limitation period was triggered when Complainant received Notice.
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
July 13, 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.
2 The same timeliness analysis applies to the allegation in Claim 3, even though it occurred after Complainant filed his formal complaint, because it arose from the same events that gave rise to Claims 1, 2, and a prior version of Claim 3 in the record.
3 Assuming arguendo that this triggered the limitation period, Complainant's January 17, 2018 filing date is still untimely.
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