[Redacted], Clement M., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2021001721 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clement M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021001721 Agency No. 2003-0742-2019103097 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 18, 2019, dismissing his 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 CLB Program Chief, GS-13, at the Agency’s Chief Business Office/Workforce Management Townsite II facility in Topeka, Kansas. On August 17, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment/harassment and discrimination on the bases of race (multiple), sex (male), disability, and reprisal for prior protected EEO activity. In so doing, he listed numerous instances in the following categories: 1. Denial of a reasonable accommodation from February 5, 2015 to July 22, 2016; 2. Constructive long-term suspension from February 5, 2015 to July 22, 2016; 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. 2021001721 2 3. Promotion/Non-selection, involving 14 instances of negative references from February 22, 2016 to April 3, 2019; 4. Two instances of “per se discrimination” occurring between January 29, 2015 and February 4, 2016; 5. Six instances of “interference-abuse of discretion;” 6. Nine instances of disparate treatment; 7. A hostile work environment, noting that the EEO Investigator, members of the February 2016 AIB, through signed and dated attestation, support Complainant’s claims; and 8. Constructive discharge on July 24, 2016. The Agency dismissed the entire complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. It also dismissed several claims that occurred prior to or during the processing of two prior complaints in which Complainant also alleged a hostile work environment, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim and/or stating the same claim. It dismissed other claims pursuant to 29 C.F.R. § 1614.107(a)(1), noting that they were allegations of violation of policies outlined in various Agency handbooks, prohibited personnel practices, failure to afford Complainant due process, and abuse of discretion and, therefore, not properly brought forth in the EEO complaint process. It dismissed other claims pursuant to 29 C.F.R. § 1614.107(a)(8), finding the allegations alleged dissatisfaction of a previously filed complaint. It also dismissed other claims pursuant to 29 C.F.R. § 1614.107(a)(1) as attempting to raise a new EEO complaint based on information received through discovery of a prior EEO complaint that was currently at the hearing stage. The instant appeal followed. On appeal, Complainant argues that, with respect to the timeliness of his complaint, the time limitation should be waived in the interest of equity; alternatively, he argues that equitable estoppel or tolling should apply. He also argues that the Agency erroneously concluded that his allegations fail to state claims and/or stated the same claim and erroneously characterized his claims as alleging dissatisfaction with the processing of a previously filed complaint. In response, the Agency argues that Complainant’s appeal is untimely, noting that its final decision was dated on October 19, 2019 and Complainant’s appeal was dated December 30, 2020, over a year later. It also argues that its dismissal accurately detailed the relevant facts and applied the appropriate legal standards. It asks that we dismiss the appeal and uphold its dismissal. 2021001721 3 ANALYSIS AND FINDINGS Timeliness of Appeal The regulation set forth at 29 C.F.R. § 1614.402(a) provides, in pertinent part, that appeals must be filed within 30 days of receipt of dismissal. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993)), the Commission stated “the agency has the burden of proving evidence and/or proof to support its final decisions,” see also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). The record shows that the Agency’s final decision was dated October 18, 2019, and the Agency attempted to deliver it to Complainant at his address of record via UPS. UPS tracking records indicate that, on October 28, 2019, the receiver was not available at the time of the first delivery attempt and, upon a second delivery attempt, the package was refused. UPS tracking records show that, on October 30, 2019, the package was delivered and a signature from “Owens” was obtained. Neither the Agency nor the record provides any further evidence that Complainant actually received the package. Therefore, we find the record is insufficient to establish it was delivered to Complainant on October 28 or 30, 2019. On his Notice of Appeal, Complainant indicated that he received the Agency’s final decision on November 30, 2020. Emails between Complainant and the Agency document Complainant’s inquiries regarding the status of his complaint and show that, in response, the Agency sent him a copy of its final decision by email that Complainant received on November 30, 2020. Therefore, we find the record establishes that he received the Agency’s final decision dismissing his complaint on November 30, 2020. Complainant submitted the instant appeal on December 30, 3020, which is within the 30-day time limitation for filing. Therefore, we find his appeal was timely. See 29 C.F.R. § 1614.402(a). Timeliness of Formal Complaint 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 fifteen (15) days of receiving the notice of the right to do so. EEOC Regulation 29 C.F.R. §1614.604(c) provides that the time limits are subject to waiver, estoppel, and equitable tolling. Here, the record includes a Notice of Right to File a Discrimination Complaint (Notice) regarding the instant complaint, dated July 18, 2019. A UPS tracking summary indicates that the Notice was delivered to Complainant on July 23, 2019. 2021001721 4 Although the Notice indicates that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, the record shows that the Agency did not receive the complaint until August 17, 2019, which was more than 15 days after he received the Notice. Thus, we find the record establishes that Complainant failed to submit his formal complaint within the applicable time limit. On appeal, Complainant offers several arguments for extending the time limit. These arguments include that, “for the sake of equity,” the Agency’s actions and Complainant’s subsequent actions should constitute “a mutual de facto waiver of the relevant time limitations,” particularly as the Agency has failed to address the length of time between the issuance of its final decision and his ultimate receipt of it. His arguments for equitable estoppel include that his delayed filing of his formal complaint is due to the active misconduct of the Agency’s EEO Counselor, particularly as the EEO Counselor should have known that mischaracterizing Complainant’s claims would cause him to delay filing and the Agency provided conflicting and inconsistent statements. His arguments for equitable tolling include that he has acted with reasonable diligence and there are extraordinary circumstances in his case. We have reviewed the record and considered all of Complainant’s arguments, even those not expressly addressed. We find that he has failed to offer sufficient justification for extending or tolling the time limit to file his formal complaint. Furthermore, because we find dismissal of the entire complaint on the basis of the untimely filing of the formal complaint, we decline to address any alternative basis for the dismissal of any individual claims. Accordingly, the Agency’s final decision dismissing the 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). 2021001721 5 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. 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. 2021001721 6 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 June 14, 2021 Date