Fawn G.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMar 14, 20180120160407 (E.E.O.C. Mar. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fawn G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160407 Agency No. 200H06322014102318 DISMISSAL OF APPEAL By Notice of Appeal postmarked October 23, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the August 19, 2015 final agency decision concerning her EEO 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. For the following reasons, the Commission DISMISSES Complainant’s appeal. At the time of events giving rise to this complaint, Complainant worked as a Program Specialist, 0301, GS 9, in Credentialing and Privileging Service (CPS) in the Office of the Chief of Staff at the VA Medical Center in Northport, New York. On May 20, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic), religion (Jewish), and in reprisal for prior protected EEO activity when: 1. On March 13, 2014, the Risk Manager placed Complainant on a Performance Improvement Plan (PIP); 2. On March 13, 2014, the Risk Manager denied Complainant’s request for accommodation; 3. On April 16, 2014, the Risk Manager mandated Complainant attend a “fact-finding” meeting while providing no information as to what the meeting involved; 4. On April 23, 2014, during the fact-finding meeting, the Risk Manager accused Complainant of making statements that the Risk Manager was involved in a theft; 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. 0120160407 2 5. On May 12, 2014, during a meeting to discuss the PIP, the Risk Manager told Complainant she was going to pursue the fact-finding, told Complainant she could not close her office door, and threatened Complainant with more fact-finding investigations; and 6. On June 16, 2014, during a meeting to discuss the PIP, the Risk Manager reiterated her instruction that Complainant not close her office door, continued to threaten her regarding future fact-finding investigations, and told Complainant that in the future, she would no longer approve her use of annual leave in lieu of sick leave. At the conclusion of the investigation on the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to receive a final decision from the Agency or to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not respond, the Agency issued a final decision on August 19, 2015. The Agency determined management discriminated against Complainant when it failed to provide her a reasonable religious accommodation. The Agency found no discrimination regarding Complainant’s other claims. The record establishes that the Agency’s final decision was sent to Complainant’s address of record by Certified mail. A copy of the return receipt shows that the Agency’s final decision was received at Complainant’s address of record on August 24, 2015. A review of the final decision reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of its final decision to file her appeal with the Commission. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. We note that in her December 29, 2015 brief in support of her appeal, Complainant’s attorney (who did not represent her until the appellate stage) states that Complainant received the Agency’s final decision “on or about August 30, 2015.” We note that even if Complainant did not receive the Agency’s final decision until August 30, 2015, her appeal would still be untimely. Accordingly, Complainant's October 23, 2015 appeal is untimely and is DISMISSED. See 29 C.F.R. § 1614.403(c). 0120160407 3 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. 0120160407 4 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 March 14, 2018 Date Copy with citationCopy as parenthetical citation