[Redacted], Brigette L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 15, 2021Appeal No. 2021001662 (E.E.O.C. Dec. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brigette L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001662 Agency No. 2003-0580-2020105350 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated December 8, 2020, dismissing her 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead MRT-HIT Analyzer, GS-7, at the Michael E. DeBakey Veterans Affairs Hospital in Houston, Texas. On July 23, 2020, Complainant sought EEO counseling alleging that she was subjected to discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File (Notice) on October 2, 2020. The Notice specified that Complainant’s formal complaint must be filed within 15 calendar days of receipt of the Notice. The record reflects that Complainant received the Notice on October 5, 2020. 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. 2021001662 2 Upon receipt of the Notice, on October 5, 2020, Complainant emailed her EEO Counselor and stated that she would be submitting her formal complaint that day. However, there is no evidence showing that Complainant did so. On October 19, 2020, Complainant emailed her EEO Counselor regarding her mediation. In response, on the same date, her EEO Counselor observed that Complainant had failed to appear for the mediation session and noted that it did not seem that she had filed a formal complaint. Thereafter, on November 13, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when: 1. On June 24, 2020, the Chief of Hospital Administrative Staff (Chief) denied Complainant retroactive pay for her Medical Record Technician/Tort Work Leader GS-7 position which the Complainant believed was misclassified and should have been graded at GS-8 from 2015 through 2019. On December 8, 2020, the Agency issued its final decision dismissing the formal complaint as untimely filed. The Agency determined that the complaint was filed on November 13, 2020, more than 15 days after Complainant received the Notice on October 5, 2020. The instant appeal followed. On appeal, Complainant argues that she contacted her EEO Counselor on October 19, 2020 in reference to her new mediation date, as well as making him aware that she sent her VA Form 4939, EEO formal complaint, to an Agency email address. She argues that the EEO Counselor replied and acknowledged her formal filing. The Agency counters that on October 19, 2020, in response to Complainant’s contact, the EEO Counselor explained to Complainant that her complaint had not left his queue and asked her to forward the email showing that she had sent her formal complaint. The Agency argues that if Complainant had responded to the EEO Counselor’s email that day, October 19, 2020, her notice of filing would have been timely. However, the Agency noted, Complainant did not provide any evidence that she timely filed her formal complaint. 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, which, in turn, requires the filing of a formal complaint within 15 days of receiving notice of the right to do so. 2021001662 3 Based on a thorough review of the record, we determine that the Agency's dismissal, due to the untimely filing of the formal complaint, was proper. Following receipt of the Notice on October 5, 2020, Complainant was instructed to file her formal complaint within the requisite 15-day period. However, the instant record reflects that Complainant did not file her formal complaint until November 13, 2020, well beyond the time limitation set forth in the regulations. While in her October 5, 2020 email to the EEO Counselor Complainant stated that she would submit her formal complaint that day, the record does not contain evidence reflecting this occurred. As for Complainant’s contention on appeal, that she filed her complaint on October 19, 2020 when she emailed her EEO Counselor, this also lacks evidentiary support. Instead, the record reflects that, in his October 19, 2020 reply email, the EEO Counselor stated “… you claimed to have sent your VA Form 4939 [formal complaint] but your case has not left my queue so I’m not sure you e-mailed the right email address.” Further, he explicitly stated “I am not sure that anyone had received your VA Form 4939.” The EEO Counselor asked that Complainant forward him her email showing the filing of her complaint. Complainant failed to do so. Even after receipt of the November 13, 2020 complaint, the Agency asked Complainant for reasons for the delay. Complainant stated that she could not find her earlier email, noting that she must have deleted it. Complainant has not provided evidence of any email, containing for formal complaint, sent prior to November 13, 2020. In contrast, there is documentation of a November 13, 2020 email with Complainant’s complaint. On appeal, Complainant has not provided any reason for the delay or adequate justification for extending the 15-day time period. Therefore, we find that the Agency’s dismissal of the complaint, as untimely filed, was proper. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the complaint for untimely filing. 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. 2021001662 4 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. 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. 2021001662 5 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 15, 2021 Date Copy with citationCopy as parenthetical citation