0120181037
04-19-2018
Jonathan V.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jonathan V.,1
Complainant,
v.
Robert Wilkie,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181037
Agency No. 200406582017104116
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 27, 2017, dismissing his complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Registered Nurse, VN-1, at the Agency's Medical Center in Salem, Virginia.
Complainant contacted an EEO counselor alleging discrimination on the bases of disability when: on June 27, 2017, he received a proposed removal; when his requests for reasonable accommodation were denied up through June 22, 2017; when he was issued a letter of reprimand on June 26, 2017, and on May 15, 2017, he was issued a letter of warning.
On August 1, 2017, the Agency emailed Complainant his right to file a formal complaint. On the same day, Complainant responded by email that he received the paperwork, and would fill it out and get it faxed or emailed back to the EEO counselor. The counselor responded, "[n]o problem." Later that day, Complainant sent the counselor another email stating, "I believe this is the paperwork you are looking for. If there is anything missing, please contact me and I will provide it."
On August 2, 2017, the EEO counselor then sent an email to Complainant stating "I have forwarded your complaint for processing. Within sixty days or less you will be informed whether your complaint has been accepted into the formal stage."
On August 11, 2017, Complainant followed up, checking to make sure all the submitted forms were in, and asking "Is there anything else you need?" In response, the EEO counselor told Complainant that he forwarded Complainant's paperwork to file a formal complaint for processing on the day it was submitted, adding "[n]o additional documentation is needed at this time."
On December 27, 2017, the Agency dismissed the complaint, stating that Complainant never filed a formal complaint (Agency Form 4939) within 15 days of his right to file a formal complaint. The instant appeal followed. In his appeal, Complainant indicates that he was misled by the emails, especially when he was told no additional documentation was needed. In addition, Complainant states he that submitted the Form 4939 in the paperwork to the EEO counselor.
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.
The record discloses that Complainant received the notice of right to file a formal complaint on August 1, 2017. That is not in dispute. That same day, Complainant informed the EEO counselor that he was filing a formal complaint. The EEO counselor indicated on August 2, 2017, that he had submitted the paperwork and later told Complainant that "[n]o additional documentation is needed."
Based on these facts and the actions of the EEO counselor, we find that Complainant, at the very least, attempted to file his formal complaint as early as August 2, 2017. He asked the counselor if anything else was needed and was told it was not. Under the circumstances of this case, we find that Complainant filed an EEO complaint in a timely manner. However, because it is not absolutely clear which claims and bases Complainant was pursuing, we are providing him with the opportunity to clarify his claims or to agree to the claims he raised in pre-complaint counseling.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The matter is REMANDED to the Agency to comply with the Order as set forth below.
ORDER
The Agency is ordered to process the remanded complaint 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 was issued. Prior to starting the investigation, the Agency shall provide Complainant with an opportunity to clarify his claims or reaffirm the claims set forth in the EEO counseling report. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
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 19, 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.
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