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

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020003096 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lydia W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003096 Hearing Nos. 570-2014-01147X 570-2015-00403X Agency Nos. 20DR-00SB-2014100934 20DR-00SB-2014103848 DISMISSAL OF APPEAL On March 17, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated October 31, 2019, which fully implemented the AJ’s findings of 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., 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. For the following reasons, we shall DISMISS the appeal as untimely. ISSUE PRESENTED The primary issue presented concerns whether Complainant’s appeal is timely. 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. 2020003096 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as the Director, GS-301- 15, of the Office of Small of Small and Disadvantaged Business Utilization (OSDB), Center for Verification and Evaluation (CVE) in Washington, DC. On August 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment on the bases of race (African American), sex (female), disability (physical), age (over 40) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, Section 501 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1967 when, in relevant part, on March 19, 2014, her supervisor removed her from the position of Director of CVE2 and assigned her to a non-existent position located in Operational Security and Preparedness Service. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, which the assigned held on April 11-14, 2017, May 19, 2017, and June 29, 2017, via videoconference. The AJ subsequently issued a decision on September 19, 2019, which, in relevant part, found that the Agency discriminated against Complainant when Complainant’s supervisor removed Complainant from her position as Director of CVE. To remedy the finding of discrimination, the AJ ordered the Agency to: 1) pay Complainant $250,000.00 in non-pecuniary compensatory damages; 2) calculate and pay the appropriate amount of back pay benefits due Complainant; 3) pay Complainant $1,947.83 in pecuniary compensatory damages; 4) restore 122 hours in sick leave; 5) pay attorney’s fees in amount of $263,603.34; and 6) post notice of the discrimination and provide EEO training to the responsible management officials. Notably, in ordering remedial relief, the AJ did not direct the Agency to reinstate Complainant to her prior position as the Director of CVE. By final order dated October 31, 2019, the Agency fully implemented the remedial relief ordered by the AJ, which the Agency emphasized would “restore [Complainant] to a position where she would have been were it not for the unlawful discrimination.” In issuing the final order, the Agency advised Complainant that she had 30 days after receipt of the final order to file an appeal with the Commission. On December 23, 2019, the Agency notified Complainant via email that the Agency, in accordance with the October 31, 2019 final order, would take all necessary steps to prevent unlawful employment practices. See Attachment 6 contained in Compliance Report at 23-24. The Agency fully paid Complainant the awarded damages on December 30, 2019. Id. at 28. 2 We note that the AJ’s decision inconsistently refers to Complainant as the Deputy Director and Director. Our review of the record shows that Complainant was the Director of CVE. See Complainant’s Hearing Testimony on April 11, 2017 contained in Hearing Transcript at 114. 2020003096 3 On February 21, 2020, Complainant contacted the EEO Director through her attorney to complain about being “the only GS-15 in OSDBU without staff and without a management position.” Complainant asserted that as part of the Agency’s final order directing the restoration of Complainant to a position where she would have been were it not for the unlawful discrimination, the Agency had an obligation to place her in a mutually acceptable management position with subordinate staff. The Agency, however, denied Complainant’s request on February 24, 2020. In denying Complainant’s request, the Agency explained that the phrase, “restore her to a position,” as stated in the final order did not literally mean returning Complainant to her prior position. However, the Agency emphasized that Complainant could petition the EEOC’s Office of Federal Operations for clarification, if she believed that the Agency’s interpretation was in error. Complainant then filed a Notice of Appeal/Petition on March 17, 2020, challenging the Agency’s refusal to place her in a mutually acceptable management position. CONTENTIONS ON APPEAL We will discuss Complainant’s contentions on appeal, infra. The Agency opposes the appeal and requests that the Commission affirm its final order. ANALYSIS AND FINDINGS Through her attorney, Complainant reiterates her request to be placed in a mutually acceptable management position, as part of the “make-whole” relief ordered in the Agency’s final order. In appealing the matter, Complainant emphasizes that her appeal is timely because she first learned on February 24, 2020, that the Agency would not place her back in her prior position, and she filed her appeal within 30 days of that date. However, we find Complainant’s appeal to be untimely. Under our regulations, when an AJ issues a decision pursuant to 29 C.F.R. § 1614.109(b), (g) or (i), an agency must take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the AJ’s decision. 29 C.F.R. § 1614.110(a).3 A complainant may appeal an agency’s final action or dismissal of a complaint to the Commission within 30 days of receipt of the dismissal, final action or decision. 29 C.F.R. § 1614.402(a). Here, the AJ issued a decision on September 19, 2019, finding discrimination and ordering the Agency to take remedial action. The Agency fully implemented the AJ’s findings and orders on October 31, 2019. Our review of the record shows that Complainant did not timely file her appeal despite being clearly advised by the Agency of the applicable time limits. Complainant has not offered adequate justification for an extension of the applicable time limit for filing her appeal. 3 We note that the AJ gave the Agency an additional 20 days to issue a final order. See AJ’s Decision at 30. 2020003096 4 In reaching this conclusion, we are unpersuaded by Complainant’s contention that her appeal is timely because she filed her appeal within 30 days of learning that the Agency would not place her back in her prior position. Given that neither the AJ’s decision nor the Agency’s final order mentioned such relief, we find that Complainant should have known that such relief was not included. We also do not construe Complainant’s appeal as a petition for clarification, as the record shows that Complainant is seeking additional relief that was not expressly ordered by the AJ and/or the Agency. If Complainant desired additional relief, she should have timely appealed the Agency’s final order within the relevant filing period. Because she failed to do so, we will not review her appeal. CONCLUSION Accordingly, Complainant’s March 17, 2020 appeal is hereby dismissed. See 29 C.F.R. § 1614.403(c). 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. 2020003096 5 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. 2020003096 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 August 16, 2021 Date