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

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2021003762 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken E.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021003762 Agency No. 200I-0508-2021103667 DISMISSAL OF APPEAL On June 17, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) because the Agency declined to continue processing his informal equal employment opportunity (EEO) complaint after on June 4, 2021, he emailed the Agency Office of Resolution Management, Diversity & Inclusion mediator that he withdrew his EEO case, which alleged 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 his initiating EEO counseling, Complainant was employed by the Agency as an Inventory Manager, GS-9 at the Veterans Affairs Medical Center, Prosthetics department in Decatur, Georgia. On May 10, 2021, Complainant initiated EEO counseling alleging, as later clarified in his subsequent letter to the EEO counselor, that the Agency discriminated against him based on his national origin (Hispanic) when: 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. 2021003762 2 1. After training scheduled in November 2019 was canceled for his newly established position it was not rescheduled, he lacked support, and this set him up for failure in his newly established position. 2. On or about April 8, 2021, he was suspended from April 12 - 16, 2021, because of an expired item being in the operating room. 3. He was subjected to an ongoing hostile work environment. After the unsuccessful conclusion of alternative dispute resolution mediation, on June 4, 2021, Complainant submitted to the mediator an email letter he was provided headed “NOTICE OF WITHDRAWAL OF EEO COMPLAINT Case Number 200I-0508-2021103667”, to which he added the language “I am withdrawing this EEO complaint in its entirety. I am making this decision of my own free will and without coercion” and electronically signed it. Complainant via his non-attorney representative writes that on June 7, 2021, he advised the mediator he rescinded his withdrawal, but the Agency’s EEO office closed his case. On appeal Complainant, via his representative writes when he submitted the withdrawal, he believed he was just closing out alternative dispute resolution, not his entire complaint. In reply, Agency counsel argues that the withdrawal should be upheld. ANALYSIS AND FINDINGS Where a complainant "knowingly and voluntarily withdrew his complaint... the Commission considers the matter to have been finally abandoned." Tellez v. Department of Transportation, EEOC Request No. 05930805 (Feb. 25, 1994). A complainant may not request reinstatement of an informal complaint unless the complaint was withdrawn pursuant to a settlement agreement, unless there is a showing of coercion. Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Also, the dismissal of a complaint is improper if the agency's action in misleading or misinforming the complainant resulted in the dismissal. Perry v. United States Postal Service, EEOC Appeal No. 01A45685 (Oct. 17, 2005). Complainant contends, in essence, that his withdrawal was not knowing and a mistake. This is not persuasive. The wording in the withdrawal letter was succinct and straight forward, and the record does not show the Agency mislead complainant into signing it. The Agency’s declination to resume processing Complainant’s informal complaint was proper, and his appeal is DISMISSED. 2021003762 3 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. 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). 2021003762 4 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 September 23, 2021 Date