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

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 20-2100-2147 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Evelina M.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 20-2100-2147 Agency No. 2003-589W-2020105954 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 13, 2021, dismissing her 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 Nursing Assistant, GS-5, at the Agency’s Veterans Affairs Medical Center in Wichita, Kansas. On November 21, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black) when, on August 20, 2020, Complainant was issued a written counseling for failure to follow instructions.2 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 We noticed Complainant raised additional claims at her initial interview with her EEO counselor including that she was harassed by her supervisor and not selected for several jobs that she had applied to. However, Complainant did not raise these additional claims in her formal complaint, and they were not dismissed by the Agency. Consequently, we find that these additional issues are not before the Commission at this time. 2021002147 2 The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the Agency found Complainant received the Notice of Right to File a Discrimination Complaint (Notice) on November 4, 2020, and filed her formal complaint on November 21, 2020, which was beyond the 15-day regulatory filing deadline. The instant appeal followed. On appeal, Complainant, argues that her EEO counselor gave her “insufficient information regarding the due date for [filing the] complaint . . . through phone conversation.” In addition, Complainant requests an extension due to “Covid-19 hardship (mental health).” ANALYSIS AND FINDINGS 29 C.F.R. § 1614.106 provides in pertinent part that a formal complaint must be filed within fifteen (15) days of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a compliant or portion of the complaint if it fails to comply with the 15-day time limit under 29 C.F.R. § 1614.107(a)(2), unless the time limit is extended in accordance with 29 C.F.R. § 1614.604(c). Under 29 C.F.R. § 1614.604(c) the time limit is subject to waiver, estoppel and equitable tolling. The Commission has previously held that an agency may not dismiss a complaint based on a complainant's untimeliness, if that untimeliness is caused by the agency's action in misleading or misinforming the complainant. See Elijah v. Dep't of the Army, EEOC Request No. 05950632 (Mar. 29, 1996). The instant record contains a copy of a Notice of Right to File Individual Complaint, dated November 4, 2020, addressed to Complainant. The Notice informed Complainant that she had to file a formal complaint within 15 calendar days of receipt of the Notice. On January 13, 2021, the Agency dismissed her formal complaint on the basis that it was not timely filed. On appeal, Complainant does not dispute that she received the Notice on November 4, 2020, or that she failed to file her formal complaint within the 15-day time-limit. Rather, she argues that regardless of what the Notice stated, her EEO counselor gave her “insufficient information regarding the due date for [filing the] complaint . . . through phone conversation.” Complainant’s argument is vague, and she has offered no facts to support her proposition. For instance, Complainant has not provided any information on the date the phone conversation took place, she does not specify what the “insufficient information” was, whether the EEO counselor gave her a concrete filing date and what that date was, or whether she made an attempt to reconcile the “insufficient information” that the EEO counselor gave her with the filing requirements in the Notice. Without more information we cannot discern that her untimely filing was caused by the Agency's action. Additionally, Complainant requests an extension due to “Covid-19 hardship (mental health).” The Commission has previously held, that in cases involving physical or mental health difficulties, an extension is warranted only where an individual is so incapacitated by their condition that they are unable to meet regulatory time limits. See Davis v. United States Postal 2021002147 3 Service, EEOC Request No. 05980475 (August 6, 1998). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. United States Postal Service, EEOC Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental and physical capacity, without medical evidence of incapacity, does not warrant extension of time limits). In the present case, Complainant requests an extension without identifying the time period during which she or someone that she was associated with suffered from Covid-19 and related mental illness. She also fails to support her allegation with medical evidence. Without medical evidence showing Covid-19 and mental illness during the relevant time period, the Commission is not persuaded that Complainant was so incapacitated that she could not file her complaint in a timely manner. Accordingly, the Agency's decision to dismiss the complaint was proper and is hereby 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). 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. 2021002147 4 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. 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 7, 2021 Date