0120181324
05-31-2018
Manuel R,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Manuel R,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181324
Agency No. 200H0523201710505093
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 1, 2018, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Diagnostic Radiologic Technician, GS-0647-10 at the Agency's Radiology Service facility in Boston, Massachusetts.
On August 3, 2017, Complainant contacted the EEO Counselor alleging discrimination. When the matter was not resolved informally, Complainant was provided with the right to file a formal complaint. On January 3, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to harassment on the basis of race (Black). In support of his claim of harassment, Complainant alleged that the following events occurred:
1. The Supervisor questioned Complainant's leadership in anger during a meeting in 2014.
2. From January 2015 to August 3, 2017, the Supervisor and the Chief targeted, falsely accused and denied Complainant promotion opportunities.
3. Management proposed suspensions of Complainant on November 5, 2015 and April 21, 2016
4. March 10, 2015, the Supervisor issued Complainant an admonishment.
5. On September 22, 2015, the Chief issued Complainant a written reprimand.
6. On October 23, 2015, the Supervisor sent an email to staff, excluding Complainant informing them of his 90-day detail to another work area.
7. Via letter dated December 7, 2015, Complainant was issued a 3-day suspension.
8. On an unspecified date, Complainant was not selected for a GS-11 position that had been downgraded to the GS-10 level in order for another candidate to be considered qualified and to be selected for the position.
9. Complainant was forced to retire effective July 16, 2017.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant alleged harassment which culminated in a claim of constructive discharge. The Agency indicated that Complainant's retirement became effective June 16, 2017, not July 16, 2017, as stated by Complainant in his formal complaint. As such, the Agency determined that Complainant must contact the EEO Counselor within 45 calendar days from the effective date of his retirement, namely June 16, 2017. Therefore, the Agency concluded that Complainant's contact on August 3, 2017, was beyond the 45-day time limit.
This appeal followed without specific comment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. The Court defined such "discrete discriminatory acts" to include acts such as termination, failure to promote, denial of transfer, or refusal to hire, acts that constitute separate actionable unlawful employment practices. Id. Finally, the Court held that such untimely discrete acts may be used as background evidence in support of a timely claim. Id.
In the case at hand, the record indicated that Complainant contacted the EEO Counselor on August 3, 2017. Complainant stated that the date of the most recent event raised in support of his claim of harassment occurred on July 16, 2017, when he was allegedly constructively discharged from his position. However, the date provided by Complainant is not consistent with the Agency's records. A copy of Complainant's Standard Form 50 indicates that Complainant's retirement was effective June 16, 2017, not July 16, 2017, as stated by Complainant. Therefore, for Complainant's contact to be considered timely, he needed to contact the EEO Counselor by July 31, 2017. Complainant did not contact the EEO Counselor until August 3, 2017, after the expiration of the 45-day time limit. Complainant provided no explanation or justification for extending the time limit. As such, we conclude that the Agency's dismissal of the complaint was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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.
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
May 31, 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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120181324
4
0120181324