Myron S.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Dec 10, 2019

2020000024 (E.E.O.C. Dec. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myron S.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020000024 Agency No. 200H-0528-2019102770 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 23, 2019, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Food Service Worker, WG-2, at the Agency’s VAMC facility in Buffalo, New York. On July 11, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age, color (Brown) and disability2 when, on January 23, 2019, Complainant’s intermittent appointment was not renewed.3 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 While Complainant’s formal complaint does not specifically identify disability as a basis, he refers to himself as a disabled veteran. 3 In his appeal, Complainant states he did not intend to raise any matters related to mediation on May 30, 2019. 2020000024 2 The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact, as well as for failure to state a claim for attempting to file a claim concerning a matter that occurred during a confidential mediation session. The instant appeal followed. ANALYSIS AND FINDINGS Failure to State a Claim The Agency first justifies its dismissal of the complaint by asserting that it concerned a confidential matter that occurred during mediation and, thus, cannot be raised in an EEO complaint. However, a fair reading of the complaint and related EEO counseling report does not support the Agency’s position. It is clear that the complaint concerns Complainant’s challenge to the management decision not to renew his intermittent appointment as a food service worker after his appointment expired in January 2019. The reference to mediation in his formal complaint appears to concern discussions that occurred after he sought EEO counseling on this matter. Therefore, while perhaps inartfully presented, Complainant’s claim does not concern the mediation itself, but rather management’s decision not to renew his employment. As such, the Agency improperly dismissed the complaint for failure to state a claim. Untimely EEO Counseling 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 alleged discriminatory event occurred on January 23, 2019, and the Agency justifies its dismissal by concluding Complainant did not initiate contact with an EEO Counselor about the matter until April 2, 2019, which is beyond the 45-day limitation period. The Agency acknowledges that Complainant spoke with the facility’s EEO Manager on February 6, 2019, two weeks after his employment ended, and was provided with a brochure explaining the EEO complaint process. However, the Agency argues, in its brief submitted on appeal, that this contact was not related to the claim raised in his formal complaint and, therefore, did not fulfill his obligation to initiate timely EEO counselor contact. A fair reading of Complainant’s claim shows that he is alleging discrimination when his intermittent appointment as a food service worker expired on January 23, 2019, and it was not renewed. With regard to this contact, the EEO counseling report states that: On or about February 6, 2019, the [Complainant] asked [named individual], the facility EEO Manager, about his employment and on March 27, 2019, he saw [the EEO Manager] again and told her that he submitted all the paperwork that the Human Resources Specialist told him about regarding Schedule A, VA disability letter, DD214. [The EEO Manager] then told him to contact ORM 2020000024 3 [Agency EEO complaint office]. The record also contains an August 16, 2019 letter from Complainant’s representative to the Agency’s EEO program. In that letter, Complainant’s attorney represented that when Complainant spoke with the EEO Program Manager on February 6, 2019, “he understood it to mean that he met his obligation to come forward within 45-calendar days.” Despite the Agency’s representations to the contrary, we conclude that Complainant’s contact with the facility EEO Manager on February 6 was sufficient to constitute initial contact within the 45-day limitation period. It is clear that the topic of the contact was Complainant’s concern that his employment with the Agency had been terminated. It appears that the EEO Manager, a person reasonably connected with the EEO complaint process, understood that he was intending to file a complaint because she provided him with a brochure concerning the complaint process as well as contact information for the complaint processing office. The fact that she also suggested that he explore being rehired through the Schedule A hiring authority for individuals with disabilities does not change the conclusion that Complainant evinced sufficient intent to file a complaint concerning his loss of employment. As such, we conclude that the Agency erred in dismissing the complaint for untimely EEO counseling contact. CONCLUSION The Agency’s dismissal decision is REVERSED and the matter is REMANDED for further processing as set forth below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. 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. 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2020000024 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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), 2020000024 5 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 (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. 2020000024 6 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 10, 2019 Date