[Redacted], Chuck B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 15, 2021

Appeal Nos. 2020001453, 2021004962 (E.E.O.C. Sep. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chuck B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal Nos. 2020001453, 2021004962 Agency Nos. 200H-0631-2018105921, 200H-V101-2018105923 DISMISSAL OF APPEALS By Notice of Appeal dated November 20, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from two Agency final decisions (FADs), dated October 10, 2019, concerning two EEO complaints (Agency Nos. 200H-0631- 2018105921 (x5921) and 200H-V101-2018105923 (x5923)). Both of the complaints alleged 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.2 In the interest of administrative efficiency, we exercise our discretion and consolidate the above-referenced appeals. 29 C.F.R. § 1614.606. In Agency No. 200H-0631-2018105921, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black), national origin (Nigerian), and age (YOB 1955) 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 In the same November 20, 2019 Notice of Appeal, Complainant also appealed a third FAD (Agency No. 200H-0523-2018104459), which the Commission separately addresses in EEOC Appeal No. 2021004963. 2020001453, 2021004962 2 1. On August 2, 2018, Complainant was rated ineligible for the position of Clinical Pharmacist Specialist GS-13 under vacancy announcement number CBAX- 10222478-18-pts. In Agency No. 200H-V101-2018105923, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black), national origin (Nigerian), and age (YOB 1955) when: 2. On or around March/April 2017, he was not hired for the position of Pharmacist, Veterans Integrated Services Network (VISN) 1 Academic Detailing under Vacancy Announcement number RS-17-PM-1693064. The Agency issued the FADs pursuant to 29 C.F.R. § 1614.110(b). The FADs concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action, pursuant to 29 C.F.R. § 1614.402(a). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. §1614.604(b). Here, our review of the FADs reveals that the Agency properly advised Complainant that he had 30 calendar days after receipt of the final decisions to file appeals with the Commission. The FADs for both complaints were issued on October 10, 2019. The FADs included Certificates of Service, which notified Complainant that for the purposes of timeliness, it would be presumed that the decisions were received within five calendar days after the date of mailing. As Complainant did not indicate when he received the FADs for x5921 and x5923, he is presumed to have received both FADs five days from mailing, on October 15, 2019. Complainant filed his appeals on November 20, 2019, which was beyond the 30-day time limit for filing his appeal, plus the five-day presumption. Complainant has not offered adequate justification for an extension of the applicable time limit for filing appeals 2020001453 and 2021004962. As such, we conclude Complainant’s November 20, 2019 appeals for both 2020001453 and 2021004962 are untimely and hereby 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. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. 2020001453, 2021004962 3 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. 2020001453, 2021004962 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 September 15, 2021 Date