0120151102
04-05-2016
Hayden R.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hayden R.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120151102
Agency No. 200H06422014104749
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 15, 2015, 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 Medical Support Assistant at the Agency's Medical Center facility in Philadelphia, Pennsylvania.
On September 5, 2014, Complainant contacted an Agency EEO Counselor alleging he had been denied his request for a reasonable accommodation, and received a notice of proposed removal on August 28, 2014. On October 1, 2014, when the matter could not be resolved informally, the Agency mailed him a notice of right to file a formal complaint (Notice). Complainant received the Notice on October 6, 2014.
On October 9, 2014, an attorney (Attorney) identified himself to the EEO Counselor as Complainant's representative. The EEO Counselor informed Complainant via email that she received the Attorney's fax on October 10, 2014, and had spoken to the Attorney. She noted that she was meeting with the Attorney on October 16, 2014 (the same day as her email).
On October 18, 2014, Complainant replied to the EEO Counselor's email and stated that he called the Attorney and told him that he did not want to pursue the case anymore. He then thanked the EEO Counselor for helping him.
On October 31, 2014, the Attorney faxed a formal EEO complaint to the EEO Counselor alleging the Agency subjected Complainant to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. He was denied a reasonable accommodation on September 2, 2014; and
2. Effective October 6, 2014, he was removed from his position.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to file his formal complaint within 15 calendar days of receipt of the Notice. The Agency noted that Complainant received the Notice on October 6, 2015, but did not file his formal complaint until October 31, 2014, beyond the 15-day time limit.
The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
In the instant matter, it is undisputed that Complainant received the notice of right to file an EEO complaint on October 6, 2014, before he retained legal counsel. The notice informed him that he had 15 days to file his complaint. Complainant's EEO complaint was filed by fax on October 31, 2014, ten days beyond the 15-day filing period.
On appeal, Complainant, through counsel, requests that the delay in filing his formal complaint be excused. After careful examination of the record and the arguments of the parties, we are persuaded that this is an appropriate situation to excuse the brief delay in filing pursuant to our authority under 29 C.F.R. � 1614.604(c). Complainant, who claims to have severe disabilities including seizures and post-traumatic stress disorder (PTSD), indicates that the stress of being discharged from his employment on the same day as he received the notice of right to file caused severe stress, requiring a period of time to reorient himself and retain legal counsel. The record shows that Complainant's attorney contacted the EEO counselor on October 9, 2014, and indicated that Complainant wished to pursue a claim of unlawful retaliation with regard to his October 6 termination. However, the Agency failed to offer Complainant additional EEO counseling on this issue. Moreover, there is no indication that the attorney was then notified that Complainant had already received the notice of right to file so the filing deadline had commenced. In addition, Complainant received communications from the EEO counselor indicating that she would be speaking with his attorney on October 16, resulting in some confusion that the EEO counseling process was still ongoing. Under these unique circumstances, we find Complainant was attempting to diligent pursue his rights, and there exists adequate justification for excusing the delay in filing the complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED to the Agency for further processing pursuant to the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims (denial of reasonable accommodation and removal)2 in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
April 5, 2016
__________________
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 removal issue will not have to be processed if Complainant filed an appeal on this same issue before the Merit Systems Protection Board (MSPB or Board) that was actually received and docketed by the MSPB, unless the Board declined jurisdiction. The record is unclear on this point.
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