[Redacted], Autumn F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Dec 4, 2019

Appeal No. 2020000128 (E.E.O.C. Dec. 4, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Autumn F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000128 Agency No. 200H-0561-2019103444 DECISION Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated August 6, 2019, dismissing a formal 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 During the period at issue, Complainant worked as a Medical Support Assistant, GS-5, in the Health and Wellness Center at the VA New Jersey Health Care System’s East Orange Campus, New Jersey. Complainant initiated contact with an EEO Counselor on May 8, 2019. The parties were unable to resolve the matter through informal counselling. Thereafter, the Agency issued Complainant a notice of right to file a formal discrimination complaint (notice). The Agency notice was received by Complainant on May 30, 2019. By letter postmarked June 24, 2019, Complainant filed the instant formal complaint alleging that the Agency subjected her to discrimination and harassment in reprisal for protected EEO activity. 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 2020000128 On August 8, 2019, the Agency dismissed Complainant’s claims for failure to file her formal complainant within the applicable time limit under 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency stated Complainant filed her formal complaint on June 24, 2019, which was more than fifteen days after she had received the notice of right to file on May 30, 2019. The instant appeal followed. On appeal, Complainant argues that she was overwhelmed by her mother’s hospitalization and having to support her unemployed son. Complainant indicated that her mother was in intensive care from June 8, 2019 through June 18, 2019. Thereafter, Complainant’s mother received in-patient care until July 11, 2019. According to Complainant, her mother’s situation depressed her to the degree of incapacitation that prevented her from filing her complaint timely. Additionally, Complainant asserts that the EEO Counselor delegated her matter to an unresponsive EEO case manager. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits including 29 C.F.R. § 1614.106(b) stating that a complaint must be filed with fifteen calendar days of receipt of the notice of right to file. in 1614.106. If justified, then EEO time limits are subject to waiver, estoppel, or equitable tolling. 29 C.F.R. § 1614.604(c). As an initial matter, we determine that, to the extent Complainant expressed disappointment with her EEO Counselor’s communications, the evidence failed to show that purported deficient Agency EEO counseling materially affected the processing of her complaint. Complainant received the notice on May 30, 2019. The Agency’s notice expressly instructed Complainant that she had to file her formal complaint within fifteen calendar days of receipt. Complainant, however, did not file a formal complaint until June 24, 2019. Although we recognize Complainant claims that she suffered duress while caring for family members and other misfortunes, Complainant did not evidence that she, herself, was medically incapacitated to such a degree that she was incapable of timely filing a formal complaint. Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Moreover, Complainant’s assertions and evidence were insufficient to show her incapacitated throughout the entire applicable filing period. Mahalia P. v. U.S. Postal Serv., EEOC Appeal No. 0120161137 (Apr. 29, 2016). CONCLUSION We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. 3 2020000128 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. 4 2020000128 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 December 4, 2019 Date