[Redacted], Ashley S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionAug 16, 2021Appeal No. 2021002449 (E.E.O.C. Aug. 16, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashley S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002449 Agency No. 200H-0542-2021101240 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 5, 2021, dismissing her complaint alleging 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 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 Nursing Assistant, GS-5, at the Agency’s VA Medical Center in Coatesville, Pennsylvania. On February 16, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race and disability2 when: 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 We note that the basis of disability was not listed in Complainant’s formal complaint. However, a fair reading of the record reflects that Complainant has alleged a justiciable disability claim. The EEO counselor’s report shows Complainant raised disability as a basis during informal counseling. Complainant also submitted a letter to the Agency where she provided information on her disability claim. 2021002449 2 1. On February 29, 2020, Complainant was terminated during her probationary period. 2. Complainant’s Family and Medical Leave Act (FMLA) application was denied because she had two months before she was eligible for it.3 The Agency dismissed the Complainant’s claim in its entirety pursuant to 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2), for untimely EEO Counselor contact. In addition, the Agency dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. In doing so, the Agency found that claim 2 was a collateral attack on the proceedings of another forum, specifically, the Department of Labor. The instant appeal followed. The Agency submitted a brief arguing that Complainant’s contact with an EEO counselor was untimely and she was aware of the prescribed time limit because she was advised of the 45-day deadline during her trainings on April 3, 2019; April 12, 2019; and December 5, 2019. Complainant submitted a letter in response, arguing that extenuating circumstances emerged that excused the untimeliness. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the 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. Here, the time limit for initiating contact with an EEO counselor began to run on February 29, 2020, the date of the effective date of Complainant’s termination. Thus, Complainant had 45 days from February 29, 2020, to request EEO counseling. According to the counselor’s report, Complainant contacted an EEO counselor on December 7, 2020, which was well after the 45 days had elapsed. On appeal, Complainant submits that her untimely contact with an EEO counselor should be excused because she was suffering from mental health illness during the applicable period, and she took care of her husband who had his own physical health issues. The Commission has previously held, that in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by their condition that they are unable to meet regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998). Claims of incapacity must be supported by evidence of incapacity. See Crear v. United States Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental and physical capacity, without medical evidence of incapacity, does not warrant extension of time limits). 3 This claim was not listed in Complainant’s formal complaint. However, Complainant raised it during counseling and the Agency’s dismissed the claim in its final decision. 2021002449 3 In the present case, Complainant failed to support her allegation with sufficient evidence. Her statement alone does not support a finding that she was so incapacitated throughout the applicable period as to prevent her from contacting an EEO counselor timely. Complainant has therefore failed to present adequate justification for an extension. The Agency also dismissed claim 2 for failure to state a claim. Because we find that the claim should be dismissed for other reasons, we do not need to consider alternative grounds for dismissal. CONCLUSION Complainant did not meet the timeliness requirements under 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2), or present a valid argument warranting an extension of the time limit. Therefore, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021002449 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 August 16, 2021 Date Copy with citationCopy as parenthetical citation