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

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 2021002209 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harvey D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002209 Agency No. 200P-0593-2020106482 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 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 Pipefitter, WG 10, at the Agency’s Veteran's Affairs Southern Nevada Healthcare System in North Las Vegas, Nevada. On December 30, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and in reprisal for prior protected EEO activity when: 1) On August 21, 2020, Complainant was harassed in front of his coworkers; 2) On October 29, 2020, Complainant was suspended for three (3) days effective November 17, 2020 through November 19, 2020; and 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. 2021002209 2 3) On November 17, 2020, Complainant’s request for a reasonable accommodation was denied. In a letter dated February 19, 2021, the Agency dismissed Complainant’s formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2) because it was not filed within the prescribed time period set forth at 29 C.F.R. § 1614.106(b). Complainant makes no contentions on appeal. The Agency again contends on appeal that Complainant did not timely file his formal complaint, and additionally, even assuming that his complaint was timely, Complainant’s complaint should still be dismissed as it fails to set forth a viable claim of discrimination based upon disability or reprisal for prior EEO activity. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) provides, in relevant part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits. A formal complaint must be filed within 15 calendar days of receipt of the notice of right to file a complaint. 29 C.F.R. § 1614.106(b). Complainant was issued a Notice of Right to File (“Notice”) on December 4, 2021, and he received the Notice on December 8, 2021. (Complaint File, 24, 32). The Notice reiterated that Complainant had 15 calendar days from receipt of the Notice to file a formal complaint. (Complaint File, 25-26). Therefore, Complainant needed to file a formal complaint by December 23, 2020, for his formal complaint to be timely filed pursuant to 29 C.F.R. § 1614.106(b). Complainant did not file his formal complaint until December 30, 2020. (Complaint File, 35-37). He has provided no explanation for the untimely filing or any argument for extension or waiver of the time limits. His formal complaint was not timely filed. As such, the Agency correctly dismissed the complaint. 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. 2021002209 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. 2021002209 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 June 24, 2021 Date