Dudley H.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120182827 (E.E.O.C. Dec. 11, 2018)

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

Dudley H.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120182827

Agency No. 2004-0590-2018103161

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency decision, dated July 31, 2018, pertaining to 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. The Commission accepts the appeal in
accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Housekeeping Aide for the Environmental
Management Services Division of the Veterans Administration Medical Center in Hampton,
Virginia. In 2015, Complainant was placed on indefinite suspension without pay. Thereafter, in
February 2016, he was removed from Agency employment.

Believing that his removal was discriminatory, Complainant contacted an EEO Counselor on
March 21, 2018. Informal efforts to resolve Complainant’s concerns were unsuccessful.
Subsequently, on May 3, 2018, Complainant filed a formal complaint based on race (African-
American) and sex (male).

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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In its July 31, 2018 final decision, the Agency dismissed the complaint on the grounds that
Complainant previously raised the matter in a Merit Systems Protection Board (MSPB) appeal.
Alternatively, the Agency dismissed the formal complaint for untimely EEO Counselor contact.
The Agency found that Complainant’s termination was sustained on February 10, 2016, but that
Complainant did not contact an EEO Counselor until March 21, 2018.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

A mixed case complaint is a complaint of employment discrimination filed with a federal
agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. §
1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or
may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not
both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss
a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R.
§ 1614.302 indicates that a complainant has elected to pursue the non - EEO process.

The instant record contains a MSPB decision, dated March 6, 2017, regarding Complainant’s
removal.2 Therefore, we find that Complainant elected to pursue his termination with the MSPB
and he is precluded from contesting the Agency’s action through the EEO process.

As noted above, the Agency also dismissed the formal complaint for untimely 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
adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of
the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). The time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all the facts that support a
charge of discrimination have become apparent.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence she was prevented by
circumstances beyond her control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.

2 MSPB Docket Number DC-0752-16-0350-I-3.
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Here, Complainant contacted the EEO office in March 2018, regarding a removal that occurred
the year before. In his formal complaint, addressing why his EEO Counselor contact was
untimely, Complainant merely stated, the “facts of the discrimination were not clearly apparent
at the time because of the pretext used against me.” We do not find that Complainant has
presented sufficient reason for extending or tolling the time limit.

CONCLUSION

The Agency’s final decision dismissing the formal complaint is AFFIRMED for the reasons
discussed above.

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).
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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

December 11, 2018
Date