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

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2022001039 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001039 Agency No. 2004-0637-2021104210 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical Support Assistant, GS-6, at the Agency’s Medical Center in Asheville, North Carolina. On September 28, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age (62), and reprisal for prior protected EEO activity when: 1. On November 19, 2018, the Supervisory Advanced Medical Support Assistant (Supervisor) denied Complainant’s request to attend Advanced Medical Support Training (AMSA) training in person. 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. 2022001039 2 2. On November 26, 2018, the Administrative Officer assigned Complainant to work at the desk window. 3. On June 14, 2019, Supervisor placed Complainant on a 90-day Performance Improvement Plan (PIP). 4. On July 23, 2019, Complainant was not selected for the position of Supply Technician, under vacancy announcement number CAYN-10466874-19-CC. 5. On October 19, 2019, Complainant was subjected to constructive discharge when he was forced to retire from his position due to his medical and work conditions. The Agency dismissed these claims pursuant to 29 C.F.R. § 1614.107(a)(2) for failure to comply with the regulatory time limits. Complainant filed the instant appeal. On appeal, Complainant contends he met with the Acting Medical Director on May 29, 2019 about his concerns and the Acting Medical Director told Complainant he would direct the VAMC to initiate an EEO complaint on the issues raised with him during the meeting. Complainant states he never received any further guidance or information regarding his complaint until he reached out to the Agency’s Office of Resolution Management on June 14, 2021, at which time he received a case number and EEO counseling. Complainant asserts the time limit for contacting an EEO counselor should be extended because he was told by Acting Medical Director that a complaint was being filed on Complainant’s behalf. Complainant argues that as a result of the misinformation provided to him, the Agency should be estopped from dismissing his complaint. He further states that he was suffering from illness that left him unable to pursue his complaint, and that the shutdown of facilities due to the COVID-19 pandemic also played an additional role in his delay. The Agency contends on appeal that Complainant has submitted no evidence of incapacity or exigent circumstances and he has loosely tried to argue alternatives rather than focusing on any legitimate reason he might have for failing to pursue his complaint for two years. The Agency notes that Complainant did not make any argument that his complaint was not timely processed or was unacknowledged due to the Agency’s adaptation during the pandemic. They also note that although Complainant alleged he was not aware of the time limits, he received training on multiple occasions that informed him of these requirements, and that Complainant provided information attached to his own appeal brief stating that an EEO program manager visited Complainant’s facility following Complainant’s May 2019 meeting with Acting Medical Director and provided employees with information regarding the EEO process. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides for the dismissal of complaints where the complainant did not initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the 2022001039 3 effective date of the action. See also, 29 C.F.R. § 1614.105(a)(1). A complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Jayna A. v. U.S. Postal Serv., EEOC Appeal No. 2019000179 (Nov. 29, 2018), citing Cristantiello v. Dep’t of the Army, EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. Dep’t of Hous. and Urban Dev., EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Complainant contends he met with the Acting Medical Director on May 29, 2019, and that the Acting Medical Director told Complainant he would initiate an EEO complaint on his behalf. However, he has not provided any support or corroboration for this contention that Acting Medical Director agreed to file an EEO Complaint on his behalf. The memorandum given by Complainant to the Acting Medical Director does not support that Complainant was alleging discrimination on any basis that would bring his complaints under the purview of EEO laws and regulations. Complainant’s memorandum describes how he believed he was being treated differently than other employees and subjected to a hostile work environment, but does not mention his age, disability, reprisal, or any other reason that EEO laws would be applicable to his complaints. (Complainant Appeal Brief, pp. 11-12). Therefore, even if we were to find that Acting Medical Director was logically connected to the EEO process, we find that Complainant did not exhibit any intent to begin the EEO process at that time. He first contacted an official logically connected to the EEO process and exhibited an intent to begin the EEO process on June 14, 2021 when he contacted the Agency’s Office of Resolution Management. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Here, the record reflects that Complainant underwent EEO training on several occasions. The documents he submitted also contain a response to a Congressional Inquiry in which the Agency stated an EEO Manager traveled to Complainant’s facility the day after his meeting with Acting Medical Director to provide information to Complainant “and other employees on the process for filing EEO complaints, grievances, and requests for Reasonable Accommodation. [Complainant] did not file an EEO complaint at that time, nor did he contact the EEO Manager later with a complaint.” (Complainant Appeal Brief, p. 40). Complainant alleges incapacity and exigent circumstances due to the COVID-19 pandemic. However, we have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (August 6, 1998). 2022001039 4 Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. U.S. Postal Serv., 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). Complainant has not provided any medical evidence to support his claims of incapacity. Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. U.S. Postal Serv., EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Dep’t. of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990). The record here reflects that the events at issue occurred between November 2018 and October 2019. Complainant’s earliest documented EEO contact is June 14, 2021. Although Complainant alleges EEO contact in May 2019, he waited over two years to follow up on this alleged contact. Therefore, we find Complainant has not acted with due diligence in pursuit of his claim and the doctrine of laches applies here. Complainant has not provided sufficient justification to warrant tolling of the time limits. His EEO counselor contact was not timely. 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. 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). 2022001039 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. 2022001039 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 March 28, 2022 Date