Doria R,1 Complainant,v.Peter O’Rourke, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120182673 (E.E.O.C. Oct. 18, 2018)

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

Doria R,1
Complainant,

v.

Peter O’Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182673

Agency No. 200I-0534-2018103689

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 2, 2018, dismissing her 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 Social Worker, GS-
0185-11, at the Agency’s Medical Center in Charleston, South Carolina.

Complainant contacted the EEO Counselor alleging discrimination. The matter was not resolved
informally. On June 28, 2018, the EEO Counselor emailed Complainant her Notice of Right to
File her formal complaint (Notice). The EEO Counselor provided Complainant with the
instructions on how to download the Notice. She also indicated that Complainant must
download the Notice within ten (10) calendar days or July 8, 2018. Complainant failed to do so.
She contacted the EEO Counselor to resend the Notice. The EEO Counselor complied with
Complainant’s request and emailed another courtesy copy of the Notice on July 17, 2018.

On July 17, 2018, Complainant filed a formal complaint alleging that the Agency subjected her
to harsssment on the basis of race (African-American) when:

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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1. On January 2017, the Assistant Coordinator to the Administrative Officer and the
Section Chief accused Complainant of hardly being at work and that Complainant
made the team dysfunctional.
2. On April 6, 2018, Complainant was issued a Notice of Proposed Removal.
3. On April 11, 2018, the Supervisor stated, “He did not see any people of color.”
Complainant stated a Black person walked out of the door, he stated, “Oh, I see
one.”
4. On April 20, 2018, Complainant was issued a Notice of Removal, effective April
20, 2018.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely filing
of the formal complaint. The Agency noted that Complainant received the email on June 28,
2018, with clear instructions indicating that she would have until July 8, 2018, to download the
Notice. The Agency determined that Complainant received the Notice on June 28, 2018.
Therefore, Complainant needed to have filed her formal complaint by July 13, 2018.
Complainant failed to download the Notice in a timely manner. Complainant informed the EEO
Counselor that she failed to do so because of her mother’s hospitalization. As such, she had to
run back and forth and was tired. The EEO Counselor provided Complainant with another copy
of the Notice on July 17, 2018. Complainant filed her formal complaint on that day. The
Agency indicated that Complainant’s formal complaint was filed beyond the 15-day time frame.
Further, the Agency found that Complainant’s reason for the delay was not sufficient to extend
the time frame. Therefore, the Agency dismissed the complaint as a whole.

This appeal followed without specific comment by Complainant.

ANALYSIS AND FINDINGS

The record discloses that Complainant received via email the Notice on June 28, 2018.
Complainant was clearly told that she would need to download the Notice by July 8, 2018.
Complainant. Complainant failed to do so. Complainant asked the EEO Counselor to send a
second Notice. The EEO Counselor provided the Notice as Complainant requested but did not
provide Complainant with additional time. Furthermore, although the notice indicated that
Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt,
Complainant did not file her formal complaint until July 17, 2018, which is beyond the limitation
period. On appeal, Complainant has not offered adequate justification to warrant an extension of
the time limit for filing the complaint.

We have carefully considered Complainant’s arguments on appeal, but do not find adequate
justification has been presented to excuse her delay in filing her complaint. Based on the
sequence of events, the email from the EEO Counselor providing a courtesy copy of the Notice
gave her no reason to believe that the filing period had been extended. We note that Complainant
has been provided with training regarding the EEO complaint process.
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We therefore conclude that Complainant has not established that the Agency erred in dismissing
her complaint as untimely filed.

In addition, Complainant had asserted that she was tired when she received the Notice on June
28, 2018. We have consistently held, in cases involving physical or mental health difficulties,
that an extension is warranted only where an individual is so incapacitated by her condition that
she is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request
No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29,
1992). Complainant has not shown that she herself was so incapacitated that she was unable to
file her formal complaint within 15 calendar days. She has not presented adequate justification,
pursuant to 29 C.F.R. § 1614.604(c) for extending the filing period. The Agency’s decision to
dismiss the complaint as untimely filed was proper

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.
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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

October 18, 2018
Date