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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2021002230 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dwayne F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002230 Agency No. 200H-0526-2020106604 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 19, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Diagnostic Radiology Technician, GS-9, at the Agency’s James J. Peters Veteran's Affairs Medical Center in Bronx, New York. Complainant sought EEO counseling on September 23, 2020. During the counseling process, Complainant alleged he was discriminated against based on his national origin (Hispanic) and harassed by his manager (“Manager”) when, on September 10, 2020, he overhead Manager speaking with another employee regarding performance awards for employees and Manager stated to Complainant it was nothing he needed to know about. Manager also emailed Complainant that day to say it was a private conversation and Complainant should not have been eavesdropping. On September 11, 2020, Manager stated to all staff during their daily teams huddle that it is disrespectful to eavesdrop and that if anyone sent her an email asking questions about things unrelated to themselves, she would consider it harassment. 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. 2021002230 2 Complainant felt he was discriminated against based on his national origin when Manager accused him of harassment in front of others during staff meetings. Mediation was not successful, and Complainant was issued a Notice of Right to File a Discrimination Complaint on December 21, 2020. On December 30, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, and color as a light tanned Hispanic of Dominican descent, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and for whistleblowing to the Inspector General, when: A) between July 1, 2011 and July 17, 2013, Complainant was denied a promotion to a grade 10 and a promotion to a grade 9; B) on May 25, 2017, the union filed a Merit Promotion grievance on behalf of Complainant; and C) as of December 3, 2020, the agency failed to act on Complainant’s June 18, 2020, Obstruction of Information, Step 2 grievance. Complainant did not raise his complaints about Manager accusing him of eavesdropping or harassment in his formal complaint. The Agency dismissed claims (A)-(C), pursuant to 29 CFR § 1614.107(a)(2), for failure to raise these issues during the EEO counseling process. Claims (A) and (B) were also dismissed for failure to comply with regulatory time limits in that they should have been raised with an EEO Counselor within 45 days of their occurrence. Neither Complainant nor the Agency filed a brief on appeal. 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 raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is “like or related” to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Hurlocker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141346 (June 27, 2014); referencing Scher v. U.S. Postal Serv., EEOC Appeal No. 05940702 (May 30, 1995); Calhoun v. United States Postal Serv., EEOC Appeal No. 05891068 (Mar. 8, 1990). In this case, Complainant was counseled on the issue of allegations by Manager that he was eavesdropping in September 2020. 2021002230 3 The matters raised in his formal complaint involve promotions. These matters are not like or related in any way. Issues about promotions that happened prior to the events he brought up in counseling could not have reasonably been expected to grow out of the original complaint during the investigation. Therefore, since Complainant was not counseled on the issues raised in his formal complaint and the issues raised in his formal complaint are not like and related to the matters on which he was counseled, the Agency correctly dismissed the claims raised in Complainant’s formal complaint pursuant to 29 CFR § 1614.107(a)(2).2 In light of our determination affirming the Agency’s dismissal on grounds that these matters were not counseled, we decline to consider whether the complaint was also properly dismissed on alternative grounds. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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). 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 2 Although the Agency’s dismissal addressed the issues raised by Complainant during EEO counseling, since these were not contained in Complainant’s formal complaint, we do not address them here. 2021002230 4 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. 2021002230 5 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 21, 2021 Date