[Redacted], Carmina E., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionFeb 7, 2022Appeal No. 2021004210 (E.E.O.C. Feb. 7, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carmina E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021004210 Hearing No. 410-2019-00015X Agency No. 200I-0534-2018102277 DISMISSAL OF APPEAL On July 8, 2020, at the earliest, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s April 16, 2020 final decision (FAD) concerning her EEO complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. This matter involves a complex procedural background; therefore, we note only the following salient facts. Complainant worked for the Agency as an Advanced Medical Support Assistant in Charleston, South Carolina. On March 20, 2018, she filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on disability and in reprisal for prior protected EEO activity when: a. In January 2018, she was made to work overtime on two consecutive days. b. In January 2018, her second-line supervisor made inappropriate comments concerning her work assignments. c. In January 2018, she was accused of having the lowest workload production rate. 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. 2021004210 2 d. In January 2018, her first-line supervisor accused her of not properly invoking the Family Medical Leave Act (FMLA). e. On April 4, 2018, she was removed from federal service. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 9, 2019, Complainant, through her representative, requested withdrawal of her hearing request and asked for a FAD. In response, on May 9, 2019, the AJ issued an Order of Dismissal pursuant to Complainant’s request and ordered the Agency to issue a final decision within 60 days. Complainant, prematurely, filed an appeal to the EEOC asking that her complaint be remanded for an EEOC hearing and that other specified claims be amended to her complaint. The EEOC issued a decision on June 22, 2021, dismissing Complainant’s appeal because a FAD had not yet been issued, and therefore, we did not have jurisdiction. In addition, we ordered the Agency to issue a FAD, if it had not already done so, within 30 days.2 Unbeknownst to the Commission at the time it issued its decision, the Agency had already issued a FAD on April 16, 2020. In its FAD, the Agency found no discrimination regarding claims (a) - (e). The FAD found that claim (e), however, was a mixed case claim; therefore, Complainant was notified that she could only file an appeal with the Merit Systems Protection Board (MSPB) on that claim and that she had to file an appeal with the EEOC within 30 days regarding claims (a) - (d). On or about April 25, 2020, Complainant filed an appeal with the MSPB regarding claim (e), but she did not file an appeal regarding claims (a) - (d) with the EEOC until, at the earliest, July 8, 2020. The July 8, 2020 submission is simply the resubmission of a brief Complainant submitted in July 2019. Complainant has not submitted any documents to the EEOC indicating she disagrees with the April 16, 2020 FAD. A review of the FAD reveals that the Agency properly advised Complainant that she had 30 calendar days after receipt of its final decision to file her appeal with the Commission. At the latest, Complainant received the FAD on April 25, 2020. Complainant’s appeal on July 8, 2020, was beyond the 30-day time limit set forth in 29 C.F.R. § 1614.402. Complainant has not offered a justification for an extension of the applicable time limit for filing her appeal. CONCLUSION Accordingly, Complainant’s July 8, 2020, appeal is DISMISSED. See 29 C.F.R. § 1614.403(c). 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 See Carmina E. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019005223 (June 22, 2021). 2021004210 3 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. 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. 2021004210 4 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 February 7, 2022 Date Copy with citationCopy as parenthetical citation